Though the ruling may result in a drug crime going unpunished, the Indiana Supreme Court has reversed the denial of a motion to suppress evidence, finding a lack of probable cause to support the underlying search warrants.

The case of Derek Heuring v. State of Indiana, 19S-CR-528, began in the summer of 2018, when the Warrick County Sheriff’s Department came to believe Derek Heuring was dealing meth. Officer Matt Young obtained a warrant to place a GPS tracker on Heuring’s Ford Expedition, and the device was attached July 13.

However, one week later, the tracker stopped providing officers with new location information. After 10 days without a location reading, a technician informed officers the device would need a reset. But when Young went to retrieve the tracker, it was gone.

The officers thus believed the tracker had been stolen and was either in Heuring’s house or his father’s barn, where the vehicle had been seen. A magistrate judge issued “theft” warrants for both locations, which led to the discovery of drugs, paraphernalia and a handgun. The GPS tracker was also found.

Heuring was arrested and charged on multiple counts, but he moved to suppress the seized evidence on the grounds that the search warrants violated his rights under the Fourth Amendment and Article 1, section 11 of the Indiana Constitution. The Warrick Superior Court denied that motion, and the Indiana Court of Appeals affirmed on interlocutory appeal.

But after granting transfer and hearing arguments, the Indiana Supreme Court reversed the denial of the motion to suppress.

“The initial search warrants were invalid because the affidavits did not supply probable cause that the GPS device was stolen,” Chief Justice Loretta Rush wrote for the court. “And because reliance on the invalid warrants was objectively unreasonable, the good-faith exception to the exclusionary rule does not apply. Thus, all direct and derivative evidence obtained as a result of the invalid warrants must be suppressed.”

Rush said there were two ways in which the warrant affidavits failed to establish probable cause. First, they lacked information that control over the tracker was “knowingly unauthorized.”

“There is no evidence of who might have removed it,” she wrote. “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.”

Second, Rush continued, the affidavits lacked information showing an intent to deprive the sheriff’s department of the tracker’s value or use.

“Rather, they merely describe a ten-day period during which the officers lost track of the GPS device,” she wrote. “And thus, the affidavits support nothing more than speculation — a hunch that someone removed the device with the conscious objective to deprive the sheriff’s department of its value or use.

“… True, removing an unknown device from a car may incidentally deprive the device’s owner of its value of use,” the chief continued. “But without any evidence of the requisite ‘intent,’ there is no crime.”

Further, the good-faith exception to the exclusionary rule does not apply in this case, the court held. The justices supported their ruling with Figert v. State, 686 N.E.2d 827, 832-33 (Ind. 1997).

Specifically, Rush said the affidavits were based on noncriminal behavior, a hunch and a conclusory statement. “Thus, a reasonably well-trained officer, in reviewing these affidavits, would have known that they failed to establish probable cause and, without more, would not have applied for the warrants.”

“In reaching this conclusion, we do not question Officer (Jarret) Busing’s subjective good faith. But that is not the test,” Rush concluded. “… We are also aware that exclusion of the evidence here may result in criminal behavior going unpunished. Yet, ‘there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.’ Arizona v. Hicks, 480 U.S. 321, 329 (1987).”

The case was remanded for further proceedings.