Imagine you’re in the parking lot of Los Pollos Hermanos after a chicken dinner that couldn’t be beat, and spot an odd looking box attached to your car. You’re reasonably familiar with your car, and know that it didn’t come with any such box. You move closer, take a harder look, and have no clue how or why that box is attached to your car. So you grab it, pull it off, and put it in the barn. Did you steal it?
Law enforcement secured a warrant to plant a small, inconspicuous GPS tracking device on Derek Heuring’s Ford Expedition. The device gave officers regular location readings for about a week—until it abruptly stopped providing updates. Over the next ten days, the officers could not determine what happened. But then, after discovering that the tracker was no longer attached to Heuring’s car, an officer obtained warrants to search Heuring’s home and his father’s barn for evidence of the device’s theft.
Upon execution of the search warrant for the stolen GPS tracking device, the cops found drugs and a gun, which was what they were looking for all along. How fortuitous! But the warrant was challenged based on its failure to provide probable cause that a crime had been committed, that crime being the “theft” of the tracking device by the defendant, Derek Heuring, by its removal from his Ford Exposition.
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.
Despite the trial court and mid-level appellate court upholding the warrant, the Indiana Supreme Court held this was no theft, and the warrant lacked probable cause because it failed to allege facts to support it.
Yet, it leaves questions unanswered, and some big black holes unfilled. What if the “black plastic device” had a sticker on it that said “Property of the Sheriff’s Office”? What if there was a witness watching the parking lot of Los Pollos Hermanos who saw the person who removed the device and informed the sheriff that it was Heuring? What if the device had no sticker, but there was a factual basis to allege that Heuring, through prior experience, knew what the device was?
The Supreme Court’s rationale is highly fact specific, holding that there was no basis to allege that Heuring “knowingly” removed the device.
The affidavits also fail to show a fair probability that someone had the intent to deprive the sheriff’s department of any part of the tracker’s value or use. A person acts “intentionally” when “it is his conscious objective to do so.” I.C. § 35-41-2-2(a). Intent is a mental function; and so, absent an admission, it “can be inferred from a defendant’s conduct and the natural and usual sequence to which such conduct logically and reasonably points.”
But had he known what the device was, had he known whom it belonged to, had he known that its removal would thwart their intended use to track him, then the warrant for theft of the device would have been sufficient?
All of this raises the question of whether the police, even with a warrant, are entitled to both place a tracking device on a person’s car and entitled to prevent him from removing, even if he knows exactly what it is and what he’s doing. And this goes beyond the tracking device/car scenario. What if you found a bug in a lamp or your telephone? What if it was a camera in you bathroom or bedroom? Does the law require you to leave it there, untouched?
Sure, if you find a tracking device, bug or camera, you can choose not to use the car or to sleep at a Holiday Inn Express instead, but then you’ve been deprived of the use of your property to avoid being the target of surveillance. And given that the device was indisputably attached to your property, do you not have a right to remove anything attached to your property at any time for any reason?
While the warrant to place the tracking device on the Ford Expedition will overcome the claim of trespass, does a warrant overcome the right of a property owner to do what he pleases with his property, such as removing an unwanted device on his SUV? The decision not only fails to address this, but suggests by its focus on the demands of the mens rea element of theft that the answer is “no,” the owner has no right to remove unwanted devices from his property per se.
It would thus seem that all the sheriff need do is attach a sticker to the backside of the tracking device, so it couldn’t be readily seen, that said in very small print: “Property of the Sheriff’s Department. Do Not remove,” and the outcome would have been the opposite.