The Indiana Supreme Court seemed dubious that a suspected Warrick County drug dealer who removed a hidden police tracker from his car should really be charged with theft, Ars Technica reported on Tuesday.
Warrick County Sheriff’s Office investigators attached the tracking device to suspect Derek Heuring’s car in July 2018 after obtaining a warrant based on a tip from a confidential informant that the vehicle was involved in methamphetamine distribution, Ars Technica wrote. However, the device stopped transmitting a bit over a week later, with police guessing that Heuring found it and removed it. After waiting for 10 days to see if it turned back on, they obtained a second search warrant for Heuring’s residence—using the supposed theft of the tracker as probable cause. There, police discovered methamphetamine, paraphernalia, and the missing GPS tracker.
Authorities charged Heuring not only with drug dealing, but for theft of their equipment. The case has not yet reached a verdict, with Heuring’s defense team raising an interlocutory (mid-case) appeal to determine whether any theft occurred and/or the second warrant was justified. A lower appeals court found sided with police, but the Supreme Court has the final say.
Per Ars Technica, during recent oral arguments Heuring’s defense team raised a number of defenses, including that authorities did not establish probable cause for theft of the device as opposed to it falling off or ceasing to function, that Heuring could not have known the unlabeled device was government property, and that removing something unknown parties attached to one’s car stretches the definition of theft. Prosecutors in turn argued that since police obtained a search warrant to attach the GPS device, by removing it Heuring had interfered with the government’s lawful use of its property.
Ars Technica wrote that multiple justices seemed skeptical of prosecutors’ claims.
“If somebody wants to find me to do harm to me and it’s not the police and they put a tracking device on my car and I find a tracking device and I dispose of it after stomping on it 25 times, I would hope they would not be able to go to a local prosecutor and somehow I’m getting charges filed against me for destroying someone else’s property,” Justice Steven David said during oral arguments.
“As I understand your argument, you’re going to go to a magistrate and you’re going to get, you’re going to claim to that magistrate, or law enforcement’s gonna claim to that magistrate, that there’s been a theft and you’re going to... get a search warrant to come into my home and find this sitting there on the table because I didn’t know what to do with it,” David added latter. “... I’m really struggling with how that is theft. We’re not talking about it’s at the pawn shop, we’re not talking about I’ve smashed it. We’re just talking about getting the warrant.”
“I’m not looking to make things easier for drug dealers,” Justice Mark Massa added, according to the Journal Gazette. “But I have an obligation to leave it on and let them track me? And I am also subject to a search of my home?”
Massa also grilled Heuring’s attorney, Michael Keating, asking him “If we come out the other way aren’t we sending a message to drug dealers to just throw it in the river? How does that help 6 million law-abiding people?”
Keating responded that police could leave identification and a phone number on the device, in which case anyone who saw it would know for sure that they couldn’t remove it, the Journal Gazette wrote.
In 2010, a 20-year-old Arab-American student, Yasir Afifi, had FBI agents and police show up at his house after he found an FBI-owned GPS tracker on his car and posted footage of it to the internet. The dispute never escalated to theft charges, though in 2015 Afifi lost a federal lawsuit asserting that he had been subject to a warrantless search, as the incident occurred before a landmark 2012 Supreme Court ruling that attaching such devices almost always requires police obtain a warrant.