INDIANAPOLIS – Indiana Supreme Court justices were downright skeptical Thursday when listening to oral arguments about whether removing a police-placed GPS tracker is theft – and therefore a reason for law enforcement to search your home.
The case out of Warrick County is a rare interlocutory appeal, meaning it is in the middle of the criminal case instead of after a conviction.
Derek Heuring is trying to get drug evidence tossed out that police found when they went to search for the GPS tracker in July 2018.
“I'm not looking to make things easier for drug dealers,” Justice Mark Massa said. “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?”
Justice Steven David added that he is struggling with the idea that it's theft to find a device on your car and simply place it on your kitchen table. And he noted there is nothing on the device saying it belongs to police.
“I'm really concerned about this,” he said.
Police initially received a warrant to place the tracker on Heuring's car based on a confidential informant tip. Its battery was still at 100% when it stopped sending a signal to the satellite, court records said.
A technician told police the device could have been unplugged and plugged back in for it to stop working. Police observed the car in a barn and police thought the barn could be obstructing the signal. When the car was back at Heuring's house, police checked and found the device gone.
Based on those facts, the police got a second warrant for both his home and the barn for the tracker. While searching the barn, police found a drug pipe in a drawer. Police then received a third warrant and eventually found the tracker in a locked locker in the bathroom of the barn.
At the home, police found two bags of methamphetamine, pills, scales and a gun. Heuring was charged with seven felonies.
The justices questioned whether a person is required to leave the tracker in place. They also noted that though police suspicions were confirmed, the tracker could have fallen off or simply malfunctioned.
Chief Justice Loretta Rush pushed specifically for where in the warrant there was proof of theft or unauthorized control.
Deputy Attorney General Jesse Drum said the theft charge might not stand up under the beyond-a-reasonable-doubt burden but the level needed for a warrant is only a fair probability of evidence of a crime.
He also said there is no obligation to leave the tracker on but if a person removes it, that is theft. That's because it deprives police of its use – which is to track the vehicle.
Drum also noted that if it had simply fallen off a signal would have continued. Instead it went dark for 10 days. Then police checked and it was missing so they applied for a warrant. He and others noted the police committed no misconduct and a judge approved of the warrants each step of the way.
This means the evidence should be allowed under a long-held good-faith exception, he said.
At the end of the oral arguments, Massa questioned attorney Michael Keating, who represents the defendant.
Massa noted the justices put the deputy attorney general through the paces and it was Keating's turn.
“If we come out the other way aren't we sending a message to drug dealers to just throw it in the river?” Massa asked. “How does that help 6 million law-abiding people?”
Keating said one possibility is to identify the tracker as belonging to police and with a number to call. Then if someone throws it in the river it's a clear case of theft because they knew who it belonged to.
But he didn't have an answer for whether citizens should have to leave it on the car if it clearly belongs to police.
The court will rule in the coming weeks or months.