Is removing a police tracking device from your car theft? A Warrick County man argues no

EVANSVILLE, Ind. — What has the Washington Post and a slew of tech publications and internet blogs interested in a Southwestern Indiana drug-dealing case? 

Anyone concerned about issues of privacy and government surveillance might be interested in the case of Boonville resident Derrick Heuring.

The Indiana Supreme Court is considering whether Warrick County was right to charge Heuring, a suspected drug dealer, with theft after the GPS tracker sheriff's deputies put on his car went missing.

The court heard oral arguments and questioned attorneys in the case on Nov. 7, and several of the justices expressed skepticism about the basis for the warrant.

Justice Mark Massa asked, "I'm not looking to make things easier for drug dealers, but if something is left on your car — even if you know that it is the police that are tracking you — you have an obligation to leave it there and let them track you? And if you take it off you're then somehow subject to search of your home?"

More:Evansville man who killed Darla Smith in crash pleads guilty, sentenced to 10 years

More:Men arrested for stabbing in 2018 receives 45 years

More:Evansville man charged in connection with two arsons after massive police hunt

Justice Geoffrey Slaughter questioned whether it would also be theft if someone removed a tracking device from their car placed by a private citizen if they didn't know who put it there.

"What if it's not the police's device? What if instead it belongs to the jilted girlfriend or the nosy neighbor?" Slaughter asked.

After the tracker stopped transmitting for about 10 days and with no reason why, a deputy went to retrieve the device from the vehicle and discovered it was gone, according to Indiana Court of Appeals records.

A search warrant to look for the tracker was obtained, and while executing it, deputies allegedly found a glass pipe, such as might be used to smoke methamphetamine, in a desk drawer, according to court records. Based on that paraphernalia, a judge issued another search warrant. Officers then allegedly found the tracker, as well as methamphetamine, pills, a digital scale and a handgun. Heuring was subsequently charged with dealing and possessing drugs and theft.

However, Heuring's attorney Michael Keating is seeking to suppress that evidence. He is arguing the search was invalid because there was not enough evidence Heuring committed theft. The original search warrant could only be issued based on what law enforcement knew at the time and gave the judge in the probable cause affidavit.

"As far as I can tell it's the first time anything like this has come up, at least at the appellate level, anywhere in the country," Keating said. "The idea that you can remove a tracking device from your vehicle and police can accuse you of theft kind of strikes people the wrong way."

Indiana law says: “A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft.”

Heuring's criminal case is on hold until the search warrant issue is resolved. Both Warrick County Superior Court Judge Robert Aylsworth and the Indiana Court of Appeals ruled there was enough information for a judge to have granted the search warrant.

"They sought judicial approval for everything they did," said Deputy Attorney General Jesse Drum, representing the state. He argued deputies acted in good faith and gave the judge enough evidence to support issuing the search warrant.

Keating countered that Indiana legal precedent has long held that unless you can identify the owner and there is no reasonable way to do so, that it isn't theft.

"These are unmarked black boxes. They don't even have an antenna, so you would have to guess the purpose. There is no indication of ownership. It's simply a device attached to a person's vehicle," Keating argued.

Keating argued that if there is no way to identify who the device belongs to — which in this case there wasn't — then it can't be considered theft.

"The cure is just to clearly identify it is the property of the agency (putting it there)," Keating said.

Then it would be more difficult for someone to argue that they didn't know why it was there or who it belonged to if it was removed and authorities charged them with theft.