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.

Filed Under: derek heuring, gps devices, theft, tracking, warrant, warrick county