Your Car, Their Black Box

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.

23 thoughts on “Your Car, Their Black Box

  1. Rxc

    Do you also have the the right to just leave the box in place, but wrap it in aluminum foil, so that it can no longer receive or transsmit? Do you also have the right to cover up bugs you find in your home, so that the microphone cannot hear you and the camera cannot see you?

    1. SHG Post author

      Theft isn’t just the taking, but the denial of use and value. If you cover the camera, then you deprived the sheriff of its surveillance value.

      1. Rxc

        So if the police get a warrant to perform surveillance on a person, that person cannot close the curtains on the windows, or the doors into the house, or even doors inside the house, or interpose any other impediments to that surveillance, because that would deprive law enforcement of their right to surveillance?

          1. rxc

            “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?”

            I was just following your line of questions. And, it seems that the Indiana Supreme Court decided, yesterday, that this was not a theft.

  2. Richard Kopf

    SHG,

    Get real. You conveniently ignore the legal significance of Los Pollos Hermanos.

    Any drug dealer worth his bad teeth knows that’s where cops go to bug and thus the meth mouth knowingly consents to placement of the cop’s box when he drives up his low rider and picks up some wings. You criminal defense lawyers continue to willfully ignore wilful blindness? It’s getting annoying.

    All the best.

    RGK

  3. Victoria Liccione

    Gotta’ be a difference b/w removing an investigative device (such as a GPS tracker) and, say, an electronic monitoring bracelet (to ensure a defendant’s appearance at trial)…right?

  4. Gregory Smith

    Far too many decisions are frustratingly narrow. Judges seem to never want to answer questions they cannot avoid addressing. I share your frustration but not 100% sure I’d want that to change – unintended consequences are messy.

    1. SHG Post author

      There’s a legal concept called “expressio unius est exclusio alterius,” so that a narrow holding that relies on certain specifics as here answers the questions. The answer is “no.”

  5. ppnl

    Pro tip: Place the tracker where it can be seen. That way you can get a warrant when it is removed. Far more useful than knowing where they eat chicken.

  6. Norm

    Sorry if this is a naive question, but what would have happened if Derek had sold the truck to me before finding the box?

    If he or a 3rd party had left a CD in the player, I would have thought that it was part of the sale and mine to dispose of.

  7. Ned Freed

    People who remove unidentified black boxes from their cars probably remove those tags from their mattresses as well. Crooks, the lot of them.

  8. kemn

    So…this is likely to come up again, and again, until the police hit on the right combination of circumstances to make the GPS device trick stick (pun intended)

    “This jailhouse informant just happened to be standing next to this guy when he said that he was deliberately removing the device to stop being tracked, your honor.”

  9. David

    If a “black plastic device” had a sticker on it that said “Property of the Sheriff’s Office”, then who is to say how it got there? Maybe it is stolen property? Seems that he should mail it back the Sheriff. The Sheriff can then investigate. As for the tracking value, it should track itself all the way back to the station.

    An alternative might be to attach it to the nearest Sheriff’s vehicle, thus effecting a return of the property. They can figure it out from there.

  10. M Tadros

    I know this blog is for lawyers and judges. I am not a lawyer. Please do not publish if I am not allowed/welcome to comment here.

    But there are problems with simply stating “Property of…” in fine print. It doesn’t go far enough. Rather, I would suggest that all surveillance devices be labeled as follows:

    Property of ________ Police Department. (To establish [probable/possible] ownership)

    Do not remove, move, or cover. (Important instructions. In case suspect had planned to reorganize their living space, or hang a towel where they shouldn’t, or place a box of chicken in an inconvenient spot. They should be warned that their property is no longer theirs to tinker with.)

    Call 555-555-5555 for assistance. (In case the suspect does not believe the device is actually owned by the police, or wonders how long they have to put up with the device, or has discovered that the device has been removed, moved, or covered up.)

    Congratulations! You now have a surveillance device in your bathroom! Yes, it’s true, we can hear/see you peeing. But peeing is natural. Everyone pees. We do it too! So don’t be embarrassed, we are only concerned with criminal activity! (To give [probably much needed, at this point] comfort.)

Comments are closed.