                                                                FILED
                                                           Feb 20 2020, 12:32 pm

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court



                        IN THE

 Indiana Supreme Court
           Supreme Court Case No. 19S-CR-528

                    Derek Heuring,
                    Appellant (Defendant)

                             –v–

                   State of Indiana,
                      Appellee (Plaintiff)


    Argued: November 7, 2019 | Decided: February 20, 2020

Appeal from the Warrick Superior Court, No. 87D02-1808-F2-435
          The Honorable Robert R. Aylsworth, Judge

   On Petition to Transfer from the Indiana Court of Appeals
                       No. 19A-CR-140



               Opinion by Chief Justice Rush
      Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.

   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.

   We hold that those search warrants were invalid because the affidavits
did not establish probable cause that the GPS device was stolen. We
further conclude that the affidavits were so lacking in probable cause that
the good-faith exception to the exclusionary rule does not apply. Thus,
under the exclusionary rule, the evidence seized from Heuring’s home
and his father’s barn must be suppressed. We reverse and remand.


Facts and Procedural History
  In summer 2018, Warrick County Sheriff’s Department Officers Matt
Young and Jarret Busing believed that Derek Heuring was dealing
methamphetamine. To monitor his movements for thirty days, Officer
Young obtained a warrant to place one of the department’s GPS tracking
devices onto Heuring’s Ford Expedition.

   On July 13, Officer Young attached the device—“a plain black plastic
box” with no markings. The officers received regular location readings for
the next six days. But on the seventh day, they received a “final update”
from the tracker, showing Heuring’s car at his home. Three days later, the
officers were still not receiving location information even though a battery
reading showed the device was fully charged. So, Officer Young contacted
a technician with the GPS device’s manufacturer. The technician told him
that “the satellite was not reading,” which “could” have been caused by
the device being “unplugged and plugged back in.”

  At some point over the next week, Officer Busing saw the vehicle in
Heuring’s father’s barn, which he thought may be affecting the device’s

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satellite reception. Then on July 30—ten days after receiving the final
location reading—the officers twice drove by the barn and Heuring’s
home. They first saw the vehicle parked outside of the barn and later saw
it parked outside of the home.

   After seeing the car away from the barn, Officer Young again contacted
a technician “to see if the GPS would track now.” The technician informed
him “that the device was not registering and needed a hard reset.” Officer
Young went to retrieve the device from the vehicle, but it was gone.
Though Officer Busing was “aware” that a GPS device had previously
become “disengaged from a vehicle by accident,” that device “was able to
be located” because it was still transmitting satellite readings.

   Based on the above information, the officers believed the device had
been stolen and was in either Heuring’s home or his father’s barn. So,
Officer Busing filed affidavits for warrants to search each location for
evidence of “theft” of the GPS device. A magistrate issued both search
warrants; and within the next hour, law enforcement executed them.

   While looking for the device, officers found drugs, drug paraphernalia,
and a handgun. Each search was stopped, and Officer Busing sought and
obtained warrants to search the house and barn for narcotics. During
those subsequent searches, officers located the GPS device, as well as
additional contraband. Heuring was arrested and charged with several
offenses.

   Before trial, Heuring moved to suppress the seized evidence,
challenging the validity of the search warrants under both the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution. Heuring
argued that the initial search warrants were issued without probable
cause that evidence of a crime—theft of the GPS device—would be found
in either his home or his father’s barn. After a hearing, the trial court
denied Heuring’s motion. On interlocutory appeal, a panel of the Court of
Appeals affirmed. Heuring v. State, No. 19A-CR-140, 2019 WL 3226992, at
*1, *4 (Ind. Ct. App. July 18, 2019).




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  We granted transfer, vacating the Court of Appeals decision. Ind.
Appellate Rule 58(A).


Standard of Review
    The trial court upheld the magistrate’s finding of probable cause to
issue two search warrants. We review the trial court’s decision de novo, as
it concerned the constitutionality of a search. Marshall v. State, 117 N.E.3d
1254, 1258 (Ind. 2019).

   But we apply a deferential standard of review to the magistrate’s
probable cause finding, affirming if the magistrate had a “substantial
basis” for making that decision. McGrath v. State, 95 N.E.3d 522, 527 (Ind.
2018). Our focus is “whether reasonable inferences drawn from the totality
of the evidence support” the finding. Query v. State, 745 N.E.2d 769, 771
(Ind. 2001). In making this determination, “we consider only the evidence
presented to the issuing magistrate” and not post hoc justifications for the
search. Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997).


Discussion and Decision
   Both the Fourth Amendment to the United States Constitution and
Article 1, Section 11 of the Indiana Constitution require search warrants
based on probable cause. U.S. Const. amend. IV; Ind. Const. art. 1, § 11.
Our General Assembly has codified this constitutional requirement in
Indiana Code section 35-33-5-2, which specifies the information that must
be included in an affidavit supporting a search warrant. See Ind. Code
§ 35-33-5-2 (2019). Though a “fluid concept,” probable cause exists when
the affidavit establishes “a fair probability that contraband or evidence of
a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,
232, 238 (1983).

  When a magistrate concludes that an affidavit establishes probable
cause, we accord that determination great deference. United States v. Leon,
468 U.S. 897, 914 (1984). But this deference “is not boundless.” Id. A search


Indiana Supreme Court | Case No. 19S-CR-528 | February 20, 2020      Page 4 of 13
warrant issued without probable cause is invalid and thus the subsequent
search illegal. Shotts v. State, 925 N.E.2d 719, 724 (Ind. 2010). Under the
exclusionary rule—unless an exception applies—evidence obtained both
directly and derivatively from an illegal search must be suppressed. See
Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016); Dolliver v. State, 598 N.E.2d 525,
527, 529 (Ind. 1992).

   Heuring argues that the initial search warrants for his home and his
father’s barn were invalid because the accompanying affidavits failed to
establish probable cause that a crime had been committed. He thus asserts
that the seized evidence pursuant to both the initial search warrants and
the subsequently issued warrants must be suppressed. The State
disagrees, maintaining that the affidavits were supported by probable
cause. Alternatively, the State contends that, even if the warrants were
invalid, the good-faith exception to the exclusionary rule applies, making
suppression unnecessary.

   We agree with Heuring. The initial search warrants were invalid
because the affidavits did not supply probable cause that the GPS device
was stolen. 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.


I. The affidavits do not provide a substantial basis of
   fact from which a magistrate could find probable
   cause that the GPS tracking device was stolen.
   A search warrant affidavit must include facts that show, when viewed
under the totality of the circumstances, a fair probability that a crime has
been committed. See Gates, 462 U.S. at 238. Put differently, the affidavit
must link the object of the search with criminal activity. I.C. § 35-33-5-
2(a)(1)–(2); see also Berger v. New York, 388 U.S. 41, 59 (1967) (observing that
the purpose of the probable cause requirement is “to keep the state out of



Indiana Supreme Court | Case No. 19S-CR-528 | February 20, 2020         Page 5 of 13
constitutionally protected areas until it has reason to believe that a specific
crime has been or is being committed”).

   Here, the warrants authorized law enforcement to search Heuring’s
home and his father’s barn for evidence of theft of the sheriff department’s
GPS tracking device. So, to establish probable cause, the affidavits needed
to show a fair probability that someone (1) at least “knowingly” exerted
“unauthorized control over property of another person” and (2) did so
“with intent to deprive the other person of any part of its value or use.”
I.C. § 35-43-4-2(a) (defining “theft”).

   The affidavits include the following facts, which the State maintains
established probable cause that the device was stolen. The officers saw
Heuring’s car at his house and in his father’s barn after the tracker
stopped working. The officers knew that neither the battery nor the barn
caused the device to stop working. And the officers did not believe the
tracker had been accidentally dislodged for two reasons: first, Officer
Busing was aware of a time when a similar device had become dislodged
but was later found because it kept signaling; and second, a technician
told Officer Young that the tracker “could have been unplugged and
plugged back in to cause” the satellite to stop reading despite the fully
charged battery.

   As explained below, we disagree that these facts show a fair probability
that a theft—or any crime—occurred. Specifically, the affidavits fail to
establish probable cause in two respects. They lack information (1) that
any control over the GPS device was knowingly unauthorized or (2) that
there was an intent to deprive the sheriff’s department of the GPS device’s
value or use.


   A. The affidavits lack information that any control over the
      GPS device was knowingly unauthorized.
   The affidavits fail to show a fair probability that any “control” over the
tracker was “knowingly . . . unauthorized.” Several statutory definitions
are helpful in reaching this conclusion.


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   A person engages in conduct “knowingly” if “he is aware of a high
probability that he is doing so.” I.C. § 35-41-2-2(b). To exercise “control”
over property, one must “obtain, take, carry, drive, lead away, conceal,
abandon, sell, convey, encumber, or possess property” or “secure,
transfer, or extend a right to property.” I.C. § 35-43-4-1(a). And, as
relevant here, control is “unauthorized” if it is exerted “without the other
person’s consent” or “in a manner or to an extent other than that to which
the other person has consented.” Id. § 1(b)(1)–(2).

   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.

   To find a fair probability of unauthorized control here, we would need
to conclude that Hoosiers don’t have the authority to remove unknown,
unmarked objects from their personal vehicles. See Unauthorized, Black’s
Law Dictionary (10th ed. 2014) (defining the term as “[d]one without
authority”); see also Woods v. State, 514 N.E.2d 1277, 1280 (Ind. Ct. App.
1987) (finding it “ludicrous” to permit the search of a suspect’s home for
evidence of theft based on an affidavit that provided “no facts to indicate”


Indiana Supreme Court | Case No. 19S-CR-528 | February 20, 2020    Page 7 of 13
unauthorized control). Reaching such a conclusion—on these facts—
would be illogical.

   Thus, the affidavits lack evidence showing a fair probability that any
“control” over the device was “knowingly . . . unauthorized.” Given this
factual deficiency, the affidavits are legally inadequate to establish
probable cause that the device was stolen. Though this failure alone is
fatal to the warrants’ validity, the affidavits are deficient in another
respect.


   B. The affidavits lack information that there was an intent
      to deprive the sheriff’s department of the GPS device’s
      value or use.
   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.” Phipps v. State, 90 N.E.3d 1190, 1195–96 (Ind. 2018) (quoting
McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App. 2014)); see also State v.
McGraw, 480 N.E.2d 552, 554 (Ind. 1985).

   Here, however, the affidavits do not include facts showing conduct
pointing to any natural and usual sequence. Rather, they merely describe
a ten-day period during which the officers lost track of the GPS device.
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.

   But a hunch falls far short of showing probable cause. See Navarette v.
California, 572 U.S. 393, 397 (2014) (recognizing that a mere hunch doesn’t
even create reasonable suspicion, a standard that is less demanding than
probable cause). True, removing an unknown device from a car may
incidentally deprive the device’s owner of its value or use. But without


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any evidence of the requisite “intent,” there is no crime. See McGraw, 480
N.E.2d at 554 (reasoning that intent cannot be inferred “when the natural
and usual consequences of the conduct charged and proved are not such
as would effect the wrong which the statute seeks to prevent”); Roark v.
State, 234 Ind. 615, 619, 130 N.E.2d 326, 327 (1955) (reiterating the “well
settled general principle of law that a crime is not committed if the mind
of the person doing the act is innocent”). And here, the affidavits do not
include facts supporting a fair probability that someone removing the
device had the intent to deprive.

   In sum, though the affidavits allege criminal activity, the facts they
recite—when viewed under the totality of the circumstances—relate
exclusively to noncriminal behavior and fail to connect the object of the
search (the GPS device) with the alleged criminal activity (its theft). See
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967). Indeed, the
affidavits provide nothing more than a tenuous and conclusory
suggestion that the tracker was stolen. Thus, the search warrants,
unsupported by probable cause, were invalid. And unless an exception to
the exclusionary rule applies, the evidence subsequently obtained must be
suppressed.


II. The affidavits are so lacking in indicia of probable
    cause that the good-faith exception does not apply.
   Suppression of illegally obtained evidence is not required “if the police
relied on the warrant in objective good faith.” Jackson v. State, 908 N.E.2d
1140, 1143 (Ind. 2009) (citing Leon, 468 U.S. at 923). The State—in a single
paragraph—argues that the good-faith exception applies. Heuring
disagrees, maintaining that there was a “total lack of probable cause” and
thus, the officers could not reasonably assert that they relied on “the
warrants in good faith.” We agree with Heuring.

   The Supreme Court of the United States crafted the good-faith
exception to the exclusionary rule in Leon. The following year, our Court
of Appeals adopted that exception for claims brought under Article 1,
Section 11 of the Indiana Constitution, and this Court followed suit a few

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years later. See Mers v. State, 482 N.E.2d 778, 783 (Ind. Ct. App. 1985);
Hopkins v. State, 582 N.E.2d 345, 351 (Ind. 1991).

   But even before those decisions, our General Assembly codified a good-
faith exception. See P.L. 323-1983, § 1 (codified at Ind. Code § 35-37-4-5
(1983 Supp.)). It provides, in relevant part, that suppression is not
required if the evidence is obtained pursuant to

      a search warrant that was properly issued upon a
      determination of probable cause by a neutral and detached
      magistrate, that is free from obvious defects other than
      nondeliberate errors made in its preparation, and that was
      reasonably believed by the law enforcement officer to be valid.


I.C. § 35-37-4-5(b)(1)(A). Here, there are no allegations that the magistrate
was not “neutral,” and there are no “obvious defects” with either
affidavit. Thus, our focus is whether the search warrants—despite lacking
probable cause—were “reasonably believed” to be valid.

   Such belief in the warrants’ validity is not reasonable if the warrants
were based on affidavits “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.” Leon, 468 U.S.
at 923 (cleaned up); Jackson, 908 N.E.2d at 1143. And “indicia” requires
sufficient signs or indications of probable cause. See Indicia, Black’s Law
Dictionary (10th ed. 2014).

   In applying this standard, our focus is not on the magistrate’s decision
to issue the warrant; rather, it is on law enforcement’s decision to seek and
execute the warrant. See Leon, 468 U.S. at 922 n.23. And this is not an
inquiry into what the particular officer–affiant subjectively believed—it is
one of “objective reasonableness.” Id. at 923 n.24. In other words, we ask
whether a nameless, “reasonably well trained officer would have known
that the search was illegal despite the magistrate’s authorization.” Id. at
922 n.23.

   We conclude that these affidavits were devoid of information linking
the GPS device to criminal activity and thus were so lacking in indicia of

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probable cause that reliance on them was objectively unreasonable.
Though Officer Busing obtained the warrants to search for evidence of
theft, the affidavits did not include facts supporting essential elements of
the alleged crime. Rather, they 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. See Woods, 514 N.E.2d at 1283 (finding the good-faith
exception did not apply where the affidavits provided “no basis for
believing a crime had been committed”).

   In reaching this conclusion, we find support in Figert v. State, 686
N.E.2d 827, 832–33 (Ind. 1997). There, we held that the good-faith
exception did not apply because the search warrant affidavit provided
only a conclusory statement—with no factual support—that drugs would
be found inside Figert’s trailer. Id. at 833. The trailer was one of three in
close proximity, and we found that “probable cause clearly existed with
respect to the first two homes” and there was “suspicion or possibility of a
joint drug-dealing enterprise.” Id. at 832 (cleaned up). But this was “not
enough” to search Figert’s trailer because the affidavit failed to allege facts
linking his trailer to the surrounding criminal activity. Id. So, because the
warrant was issued based “solely on the officer’s opinion,” we held that
the “officer’s reliance” on the warrant was not “objectively reasonable.” Id.
at 833. The same is true here.

   Similar to the officer in Figert, Officer Busing filed the affidavits and
participated in executing the search warrants. See id. at 831–32. And in
those affidavits, he concluded that “he has good and probable cause to
believe that the [GPS device] constituting fruits, instrumentalities and
evidence of the aforesaid crime of THEFT are being concealed in or about”
Heuring’s home or his father’s barn. But as discussed above, the affidavits
do not include facts showing more than a hunch that the GPS device was
stolen. And so, just as in Figert, the officer’s reliance on his own opinion—
unsupported by the facts—is not objectively reasonable. The good-faith
exception does not apply.



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    In reaching this decision, we are mindful that the good-faith exception
is regularly used by courts—including ours—to avoid the exclusionary
rule. And such frequent application is sound: a primary objective of the
exclusionary rule is to deter police misconduct, which should, in theory,
be rare. See Wright v. State, 108 N.E.3d 307, 314 (Ind. 2018). Indeed, many
cases applying the exclusionary rule involve egregious police conduct like
falsifying information; omitting important facts; or relying solely on
uncorroborated, non-credible informants. See, e.g., Jaggers v. State, 687
N.E.2d 180, 185–86 (Ind. 1997); Dolliver, 598 N.E.2d at 529.

   But the rule is also meant to deter “reckless” conduct. Herring v. United
States, 555 U.S. 135, 144 (2009); Gerth v. State, 51 N.E.3d 368, 375 (Ind. Ct.
App. 2016). And we find it reckless for an officer–affiant to search a
suspect’s home and his father’s barn based on nothing more than a hunch
that a crime has been committed. In reaching this conclusion, we do not
question Officer Busing’s subjective good faith. But that is not the test. If it
were, “the people would be secure in their persons, houses, papers, and
effects, only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97
(1964) (cleaned up). 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).

   In short, reliance on these affidavits was objectively unreasonable, and
we are confident that applying the exclusionary rule here will deter
similar reckless conduct in the future. Concluding otherwise would let the
good-faith exception swallow the exclusionary rule—at least in cases that
are bereft of evidence linking the object of a search with the alleged
offense. See Dolliver, 598 N.E.2d at 529 (recognizing that the good-faith
exception “cannot be so broadly construed as to obliterate the
exclusionary rule”); Lloyd v. State, 677 N.E.2d 71, 78 (Ind. Ct. App. 1997)
(Najam, J., dissenting) (“If a mere hunch were sufficient to support an
official belief in the validity of a warrant, the good faith exception would
swallow the constitutional prohibition against unreasonable search or
seizure . . . .”), trans. denied. This we will not do.

Indiana Supreme Court | Case No. 19S-CR-528 | February 20, 2020       Page 12 of 13
   Thus, the exclusionary rule requires suppression of all evidence seized
from Heuring’s home and his father’s barn. The evidence found during
the initial search of each location must be excluded because those searches
were illegal. And it was “by exploitation of that illegality” that law
enforcement secured warrants to search each location a second time. Wong
Sun v. United States, 371 U.S. 471, 488 (1963). As a result, the evidence
found during those subsequent searches must also be excluded as “fruit of
the poisonous tree.” Id.


Conclusion
   The initial search warrants were invalid because the accompanying
affidavits did not provide a substantial basis to support the magistrate’s
probable cause finding. Further, the good-faith exception to the
exclusionary rule does not apply, and thus, the evidence obtained from
Heuring’s home and his father’s barn must be suppressed. We reverse and
remand for proceedings consistent with this opinion.


David, Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Michael C. Keating
Andrew C. Carroll
Law Offices of Steven K. Deig, LLC
Evansville, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Jesse R. Drum
Supervising Deputy Attorney General
Indianapolis, Indiana




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