What if you happened to find some odd gadget attached to your car? Why it’s there, who put it there, you can’t say, but one thing is for sure. It’s there, it doesn’t belong there and the car is yours. So you remove it because it’s your car.
Did you commit theft? The Supreme Court of Indiana has to deal with the peculiar question.
A man who removed a secretly installed GPS tracking device from his SUV is making his case to the Indiana Supreme Court. Justices last week heard the case of Derek Heuring, who had a warrant-authorized tracker placed on his 1999 Ford Expedition by the Warrick County Sheriff’s Office on July 11, 2018.
Heuring removed the unmarked box from his vehicle and left it in the family barn. Police eventually became suspicious that the GPS location readings were showing the car as always being parked in the same location. Then the device went dark. Detectives went to the barn to retrieve the tracking device from the car, but it was no longer attached. Based upon this, police applied for warrants to search Heuring’s home and that of his parents to find the missing GPS tracker. The warrant application asserted that Heuring had committed “theft” by removing the unidentified, magnetically attached six inch by four inch black box from his car.
This wasn’t the usual question of whether the police were authorized to track the car, as they had obtained a warrant to do so. But this authorization, it was argued, gave them a right to have it there, and Heuring’s removal, it was argued, violated that right and appropriated their property.
Heuring’s attorney Michael Keating argued the police could not allege theft if there was no way for his client to know who owned the tracking device. Keating suggested police could have placed a label on the device indicating ownership, or officers could have come to the door and asked Heuring for the device back. Prosecutors countered that police acted with judicial authorization at every step of the investigation.
Keating made the question about whether Heuring knew whose GPS Tracker it was, Could it have been some nefarious person who acted unlawfully and was tracking Heuring for improper purposes? How could Heuring know that it was a police tracker or that it was authorized by warrant?
The point being that one can’t commit a crime in the absence of notice, and since the cops obvlously didn’t want Heuring to know he was being tracked, it’s not as if they left him a note saying, “Yo, bud, that’s our tracker on your car, so don’t touch it.”
The consequence of Heuring’s removal of the tracker and placing it in his barn, was that the cops looked for it, found a meth pipe, which gave them cause to get a warrant to search for drugs. It wasn’t just the theft charge, but the consequent warrant based upon the theft.
The judges’ questions, statements, seemed appropriately dubious of the state’s argument.
Justice Mark S. Massa wondered whether it could ever be a crime to remove such a device from your own car.
“I’m not looking to make things easier for drug dealers,” Justice Massa said. “But if something is left on your car — even if you know it’s the police that are tracking you — you have an obligation to leave it there and let them track you? If you then take it off you’re somehow subject to a search of your home?”
Justice Steven H. David was equally skeptical.
“If someone 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 it and dispose of it after stomping on it twenty-five 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 David said.
What’s curious about both the arguments is the absence of argument about what interest was at issue when the police attach their GPS Tracker to another person’s property.
A lawyer for the government acknowledged that it wouldn’t be theft to remove a tracking device put there by a private party. But he argued that things are different when the government has a warrant to use a tracking device. The device had a legal basis for being on the car, the lawyer argued. By removing it and preventing tracking, Heuring was depriving the government of the use of its property.
It was not unlawful, given the warrant, for the police to trespass on Heuring’s property to attach the GPS Tracker to his car, but did the warrant create a property interest in the car such that they gained a property right greater than Heuring’s in that small area of his car to which the tracker was attached?
As a general precept, governments have no rights, only authority. The GPS Tracker was the property of the police, but when they attached it to someone else’s property without his knowledge or permission, did that give the police property rights in his vehicle? Did that reduce his property right in his vehicle? Does a person have the right to exercise discrimination about what things are attached to his vehicle?
As the argument relied heavily on the fact that Heuring didn’t know it was a police GPS Tracker authorized by warrant, he couldn’t commit theft by removing it as he lacked the knowledge that it was there lawfully. But what if he did know? What if he assumed, as one might expect any normal person to do, that random people won’t attach a GPS Tracker to their car, and the only entity likely to do so are the cops? Is he then obliged to leave their tracker attached to his car?
As much as a warrant can authorize the cops to trespass on Heuring’s property to place the tracker, it cannot convey some ownership right to the cops to his SUV. The car is still Heuring’s, and Heuring is entitled to do anything (lawful) he pleases with it, including removing extraneous objects that are placed on it, because it’s his car and no warrant can change that.