State Court Says It Isn't Theft To Remove An Unmarked Law Enforcement Tracking Device From Your Car
from the hey-guys-you-left-this-thing-on-my-car? dept
If you've ever wondered how far the government will go to justify its illegal actions, here's one for you.
In July 2018, the Warrick County Sheriff's Office obtained a warrant to place a GPS tracking device on Derek Heuring's car under the theory Heuring was selling meth from his vehicle. Heuring discovered the tracking device and removed it. Rather than chalk this up as a failure, the Sheriff's Office decided to get some more warrants.
After waiting another 10 days to see if it would start working again, detectives applied for a warrant to search Heuring's home and a nearby property belonging to Heuring's parents. US law requires law enforcement to show probable cause that a crime had been committed before engaging in a search. In this case, police said they suspected that Heuring had committed the crime of theft by taking the GPS device.
Police did find the tracking device. They also found methamphetamine and drug paraphernalia—evidence that police say show that Heuring had been dealing drugs.
So Heuring was charged both with drug dealing and with theft of the GPS device.
But was this theft? That's what the detective swore it was in the affidavit. Heuring's lawyers pointed out there could have been any number of reasons the Sheriff's Office stopped receiving a signal from the tracking device. It could have broken or fallen off. And even if Heuring did remove the device, he couldn't be sure who it belonged to. (It wasn't labeled "IF FOUND, PLEASE RETURN TO THE WARRICK COUNTY SHERIFF'S OFFICE.) With this much in question, it was a stretch for the officer to assert Heuring had "stolen" the device and use this assertion to justify a search of his house for "stolen property."
The state's top court agrees with Heuring. This isn't theft, as Timothy B. Lee reports for Ars Technica.
Last Thursday, Indiana's highest court made it official, ruling that the search warrant that allowed police to recover Heuring's meth was illegal. The police had no more than a hunch that Heuring had removed the device, the court said, and that wasn't enough to get a search warrant.
Even if the police could have proved that Heuring had removed the device, that wouldn't prove he stole it, the high court said. It's hard to "steal" something if you have no idea to whom it belongs. Classifying his action as theft would lead to absurd results, the court noted.
"To find a fair probability of unauthorized control here, we would need to conclude the Hoosiers don't have the authority to remove unknown, unmarked objects from their personal vehicles," Chief Justice Loretta Rush wrote for a unanimous court.
The ruling [PDF] notes the GPS device had no markings and the officer who obtained the warrants was aware other GPS devices deployed by agencies had fallen off vehicles in the past. Despite this, he sought the warrants anyway, alleging the device had been stolen by Heuring. The assertions in the affidavits don't add up to sufficient probable cause a crime was committed -- especially when all the officer had to work with was the fact that he was no longer receiving a signal from the tracking device.
Putting this together, the affidavits needed to establish probable cause that someone—aware of a high probability that they were doing so—took the GPS device from Heuring’s vehicle without proper consent from the sheriff’s department. The affidavits, however, are devoid of the necessary information to make such a showing. Instead, they support a fair probability only that Heuring—or someone—found a small, unmarked black box attached to the vehicle, did not know what (or whose) the box was, and then took it off the car.
In the affidavits, Officer Busing notes that the GPS device “placed on the subject vehicle” was “black in color [and] approximately” six inches by four inches. The affidavits also include facts tending to show that, at some unknown time over a ten-day period, the device was removed. That’s all. There is no evidence of who might have removed it. And there is nothing about markings or other identifying features on the device from which someone could determine either what it was or whose it was. In other words, what the affidavits show, at most, is that Heuring may have been the one who removed the device, knowing it was not his—not that he knew it belonged to law enforcement.
The court goes on to say the affidavits were so lacking in "indicia of probable cause" it cannot possibly consider extending the good faith exception to the detective who wrote them.
Though Officer Busing obtained the warrants to search for evidence of theft, the affidavits did not include facts supporting essential elements of the alleged crime. Rather, they were based on noncriminal behavior, a hunch, and a conclusory statement. Thus, a reasonably well-trained officer, in reviewing these affidavits, would have known that they failed to establish probable cause and, without more, would not have applied for the warrants.
Then it goes further, stating that the warrants were so bad nothing obtained in the searches is salvageable.
[T]he exclusionary rule requires suppression of all evidence seized from Heuring’s home and his father’s barn. The evidence found during the initial search of each location must be excluded because those searches were illegal. And it was “by exploitation of that illegality” that law enforcement secured warrants to search each location a second time.
I know it sucks when your surreptitious tracking device suddenly becomes less surreptitious. But the correct response isn't a stack of Constitutional violations. Take the loss and move on. Suspects get spooked. It happens. But patience is a virtue. Impatience is whatever this was. And this inability to let bygone tracking devices be bygone means the detective is now saying goodbye to a drug bust and a possible conviction.
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Filed Under: derek heuring, gps devices, theft, tracking, warrant, warrick county
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It's almost as if they were trying to argue that if you find something that doesn't belong on your vehicle attached to it, not only should you not be allowed to remove and dispose of it, that if you do you've stolen it.
What the fuck is wrong with these cops to not see how monumentally stupid that sounds?
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It all totally makes sense. If viewed form the perspective that cops are the only sentient beings, and everybody else is just a bad dog.
(I suggest avoiding that perspective.)
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Bad dog!
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By the same logic, if someone puts a bumper sticker for a political position you dislike on your car without your knowledge or consent, removing it could be anything from theft to a hate crime.
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Silly thing is, in this case, the suspect doesn't even appear to have got spooked. If they had, after 10 days, all evidence of drugs would have been scrubbed and the target would have moved or at least ditched the tracking device.
And does it seem odd that the charges were on dealing, but the evidence collected from the warrant looks more like they were a user?
If the officers had surveilled him the old fashioned way, they may have been able to use him to nab some bigger fish. As it was, the fish ate the bait and they got nothing. It happens.
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OK, that's just absurd. If you're a drug dealer and you find a "black box" attached to your vehicle that doesn't belong there, you immediately have a very good idea of exactly what it is and who it belongs to, because you're a drug dealer.
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You assume that he was a drug dealer and not a user who purchases in bulk. You also assume that if he was a dealer, he has intelligence and forethought. Based on the average court case, that is not anywhere close to true.
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If you're a drug dealer and you find a "black box" attached to your vehicle that doesn't belong there, you immediately have a very good idea of exactly what it is and who it belongs to, because you're a drug dealer.
Let's say it's a bomb, because some other drug dealer doesn't like you.
Should you still be obligated to leave it there in case it's from law enforcement?
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And even if you "knew" it was from law enforcement, it could be any of several agencies.
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Or ... you immediately have a very good idea of exactly what it is and who it belongs to, because you live in a police state.
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Extrapolating for a moment that we're not talking about a car, but a person's home - if you found something that looked like a black box in your home, would you assume it's property of the police?
Would you leave it there, lest you potentially get charged with stealing it?
What if the police weren't the ones that put it there?
How would you feel with that uncertainty looming over your head in terms of not knowing whether it was:
Is it still absurd in those scenarios? Would you think someone would need to leave something like that in their homes because the police might get pissed off?
That the police argued exactly that should be the thing that bothers you the most.
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Re: On the other hand.....
Suppose you're not a drug dealer but nevertheless suspected of being a drug dealer by the police who have planted a GPS tracking device on your car. Or the neighbor of a drug dealer with whom you share a driveway and the police are confused as to which car is his and which yours. Or just some guy who looks like the guy the police officer's wife is having an affair with. Or maybe you are in fact a drug dealer, except that not having been arrested, charged and convicted as such, the whole "presumption of innocence" thing prevents the police from treating you as if you are in fact a criminal rather than merely as a suspect, quite possibly an innocent suspect. (That last one might seem a little far-fetched, but - believe it or not - this is exactly why we require warrants to be issued by someone other than the police and that they be based on probable cause. If you don't believe me, you can do a google search for "Fourth Amendment to the United States Constitution" and right there it is. Cops can't just accuse you of being a drug dealer and go lock you in prison - you're not lawfully considered a drug dealer until after this long process involving a judge and a court and a lot of paperwork.)
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"you immediately have a very good idea of exactly what it is and who it belongs to, because you're a drug dealer."
Yep, it could be an explosive device placed there by a rival gang. Best to send it to the cops to make sure.
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"OK, that's just absurd. If you're a drug dealer and you find a "black box" attached to your vehicle that doesn't belong there, you immediately have a very good idea of exactly what it is and who it belongs to..."
First of all, no. Trying to prove a drug dealer's intelligence in court will be an uphill job. For the overwhelming majority of drug dealers they are in the job they're in because if they had brains they'd earn more money at less risk working a 9 to 5 day job instead.
But let's assume the drug dealer finds the black box, assumes it's a police GPS device, removes it and tosses it in the nearest garbage can.
He'll still be legally in the clear because he's still just a citizen who found someone defacing his property and took steps to fix that.
If the police were being less stupid about this they would, instead, have obtained the evidence by using legal tools. Instead they screwed up to the point where even after they unlawfully raided his house and dug up a stash of controlled substances, their own actions rendered the bust invalid as evidence. And opened the department for a lawsuit.
I think it's time people finally realized that giving the Keystone Cops more toys won't help when they are too damn dumb to follow a simple how-to manual on proper police procedure...
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It doesn't matter. If someone leaves something on my property, what happens to it is not my problem and it doesn't matter who owns it. No one has any business leaving their stuff on my property without my consent and then expecting me to treat it as anything but trash to be disposed of as I see fit. If I found a gps tracker on my car, I'd most likely attach it to any government vehicle I saw parked somewhere. A mail truck would be ideal.
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Government is trying to decrease your efficiciency
I wonder how much this device impacts the MPG efficiency of the vehicle. It could be argued that placing this device on a private vehicle is causing x amount of damage to the planet over what is needed. Add up all of the devices to all investigations and I am willing to bet the result is significant. Once we have the eco-warriors against surveillance via GPS devices they will be forces to either serve your the warrants, preventing any accidental disposals or find another way to do their jobs.
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I thought it was abandoned property.
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NEVER return it!
If it had been so labeled, and you returned it, suppose it were a bomb intended for the sheriff's office, and you delivered it there?
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Re: NEVER return it!
If you stick it to the bottom of a police cruiser, does that count as returning it?
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Re: Re: NEVER return it!
Or you could wander down by your nearest federal building and put it on the bottom of a DEA car.
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Re: Re: NEVER return it!
If you stick it to the bottom of a police cruiser, does that count as returning it?
That would have been hilarious. "That drug dealer guy we're monitoring sure spends a lot of time at Dunkin Donuts."
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And the look on the cop car owner's face when the donut crumbs test positive for Meth.
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Re: NEVER return it!
Good?
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Well, yeah...
The idea that if you find a strange device attached to your vehicle you have to leave it there unless you want to risk being charged with theft is beyond absurd, and I'm glad that the court shot that one down as being as ridiculous as it is.
If cops want to track someone with a device like that then before they even start work on the warrant request they'd best accept that nothing in the warrant prevents the target from finding and removing the device, as the warrant sets limits on the cops, not the target.
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Bad Warrants
So this warrant application was so deficient in any sort of probable cause that no reasonable officer should have ever filed it - and yet apparently the warrant was indeed issued. Am I missing something here? Who issued the warrant? There presumably was some magistrate who didn't think the warrant application was deficient - did the magistrate actually read the warrant application, did the magistrate simply not understand what he was reading, or is it a rebuttable presumption that if the warrant application is good enough for a magistrate that surely it's good enough for a reasonable police officer? Given the smackdown applied here, I have to assume it's one of the first two, in which case I have to wonder why the magistrate wasn't haled into court for his fair share of abuse and disbarred from issuing warrants unless and until he can demonstrate some knowledge of how the warranting process is supposed to work.
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Re: Bad Warrants
You're forgetting a couple of things. First, when a magistrate reviews a warrant, they are only being presented with one side's views (the police). There is no adversarial process at this stage to present counter evidence and arguments, so they basically have to assume the cops are telling the truth. Secondly, the District Court and the Appeals Court agreed that the warrant was valid. It took the State Supreme Court to reverse that.
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Good thing that this was squashed since a ruling in favor of the sheriffs office, unless very narrowly targeted at only law enforcement, would have made it illegal to remove something that you don't own from your vehicle.
So, assuming the ruling isn't narrowly crafted, removing the flyers from your car would allow the owner(s) of the flyers (since they never transferred ownership to you, just placed something they owned on your car) to go accuse you of theft and the proof being no more flyer on your car.
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GPS Removal
Let's say that you find a GPS on your car and then take it off and attach it to another car. What would happen then?
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Re: GPS Removal
Whoever placed the GPS would follow the wrong car for a while. Depending on how adept the followers are would determine how long they followed the wrong car.
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Re: Re: GPS Removal
You're assuming they wouldn't first conduct an all out SWAT raid at any location the new car visited.
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Re: Re: Re: GPS Removal
That's why you put it on a cop car.
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So, they'll see this tracker spends a lot of time near crime scenes, and get a no-knock warrant for the home of the person whose car they thought it was attached to?
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Good Heaven's!!! What kind of asinine law enforcement agency could seriously believe any court would fall this insane "suspect stole our unidentifiable GPS device that they weren't aware of".
AHAHAHAHAHAHA
That's like someone finding a listening device in their home, placed there by a cop, and the cop claiming that the owner of the home "stole our listening bug".
This was nothing more than "we placed a GPS device on suspect's car" and then claim to the court that suspect wasn't aware of GPS device but he stole it anyway.
AHAHAHAHAHAHA
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Sad part is they were able to convince two courts of this before the state Supreme Court bench slapped them.
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It just makes you wonder what kind of intelligent, low-IQ police officers and sheriff deputies our law enforcement agencies are hiring these days. There should be an IQ test for common sense.
The fact that this got as far as it did makes you wonder just how many corrupt law enforcement officers our country is hiring.
There should be a policy where if a police officer is caught pulling these kind of shenanigans that they be terminated and can't be hired in a law enforcement capacity for a period of 5-10 years and that they can't be hired as a law enforcement officer in the state they are currently employed.
Bet that would cut down on these types of abuses of power.
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In a world of Qualified Immunity, being dumber seems to be better for the officers.
Besides, we all know Common Sense is so rare it deserves to be at the top of the Endangered Species list.
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I guess I'm just lucky that the police and the sheriff's department in the county where I live don't act like this. I've only had one negative experience with a police officer and that was back in the 80's with a township officer who had nothing better to do than act like an asshole. He saw me crossing the mall parking lot on the way to an appointment to get my eyes examined and demanded to know what I was doing. Township police in the area around the city I used to live in (I recently moved to an adjacent city) are well known to be jerks, at least they were back during the 80's. Haven't had any issues in the past 20+ years. I guess it depends on the cop and how he's trained. If he's trained by a corrupt cop, then that's the reason they are bad cops.
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"Haven't had any issues in the past 20+ years. I guess it depends on the cop and how he's trained."
It has more to do with the precinct culture, really.
If there is one single bad cop in the precinct then either he's run off by the other officers or otherwise "encouraged" to transfer out...
...or the rest of the precinct is gradually lowered to match his standard.
And that goes a long way towards explaining WHY, when we read, here on TD, about LEO's finally ending up killing or abusing some hapless civilian to the point where it makes the papers, there's almost invariably a long history of transfers or dismissals of said officer from previous police departments.
Leave that to stew for a while and you end up with entire precincts becoming pseudo-official offshoots of the KKK, as happened in Ferguson, or just in general a small self-contained gang using thuggery and civil forfeiture to make themselves a cushy living. It means bad behavior gets concentrated to the point where, depending on your luck of the draw, you might be better off paying the mob for protection rather than calling on your local beat cop.
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Its too bad that judges so strictly limit themselves to the issues of the case before them - because the next case will be to judge whether or not you have the authority to remove marked objects.
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Hmm...why is it that in stories like these when police get a sketchy search warrant, they always find a small amount of easily-pocketable drugs (and 'paraphernalia', which translates to 'ordinary household objects')?
Why don't they ever discover, say, that the car was stolen, or that there's multiple types of drugs in the house, or the suspect is building explosives, or they just have a bunch of stolen credit cards, or any number of things a career criminal or crazed lunatic might have?
Why is it always that they discover exactly what they're looking for, in small, ready-for-transport amounts, and nothing else?
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Pure coincidence I'm sure.
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High end cars today are installing more cameras then people know what to do with already, such as Tesla's sentry mode. If something like this became so common as to demand it, you would find trunk cameras, under hood cameras, and inner cab cameras that all upload to the internet for safe keeping.
Personally if I was a minority that was frequently targeted I would keep my car crazy clean, followed by ensuring that every inch had a camera, along with at least 1 or 2 microphones.
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"Why is it always that they discover exactly what they're looking for, in small, ready-for-transport amounts, and nothing else?"
Even in Sweden, where we find less obvious malfeasance and more oversight in the police force, there's been plenty of highly embarrassing evidence of routinely "doctored" crime scenes where detectives have dropped a small bag of a suitably controlled substance to be found as "evidence".
Usually this only happens when the officers are convinced they've got a bust but know full well it'll be an uphill battle to secure a conviction.
Doesn't make it a less disgusting practice though. I'm damn sure if this happens in sweden it happens in the US as well, where police oversight is, in comparison, a bad joke.
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If I found one on my car, I would stick it on a drone and fuck with them. Hover it over a river, over the FBI building,...
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"Theft"
As Judge Dredd once said "Everyone is guilty of something. You just have to look hard enough."
Expect to see some microprint stating "It is unlawful to remove this device from a vehicle under penalty of law." or such.
Personally, if I found such, I'd not keep it in my house but attach it to a trash truck or taxi or rail car or something. Let them track that.
Or see how they respond to a large magnetic induction coil that you might use for forging steel.
Hmm, or sell the car, with dingus attached, for cash out of state over a three day weekend, let them try to prosecute you for that one.
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So if the device had been marked, it would have been illegal to remove and dispose of it? No problem, drop it out the window on the highway. "What tracking device? If you put a tracking device on my car, it must have fallen off. I did hit a pretty big bump the other day..."
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God forbid that the hillbillies kill themselves off via meth addiction.
You would think that this would be a desirable outcome, by ALL standard USG/NGO eugenic methods, but no....
Slavery, by Another Name.
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