MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 18 2019, 9:07 am
court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Keating                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derek Heuring,                                           July 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-140
        v.                                               Appeal from the Warrick Superior
                                                         Court
State of Indiana,                                        The Honorable Amy S. Miskimen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         87D02-1808-F2-435



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019                           Page 1 of 11
                                Case Summary and Issue
[1]   Derek Heuring brings this interlocutory appeal from the denial of his motion to

      suppress evidence discovered during the execution of multiple search warrants,

      in which officers discovered drugs, paraphernalia, and the GPS tracking device

      officers had previously placed on Heuring’s vehicle. The State charged Heuring

      with theft and several drug-related counts. Heuring filed a motion to suppress

      the evidence, and following a hearing, the trial court denied his motion.

      Heuring raises two issues on interlocutory appeal, which we consolidate and

      restate as whether the trial court erred in denying Heuring’s motion to suppress.

      Concluding substantial evidence of probative value supports the trial court’s

      denial of Heuring’s motion to suppress, we affirm and remand.



                            Facts and Procedural History
[2]   Based on information from a confidential informant and their own

      observations, police believed that Heuring was using his vehicle to deal

      methamphetamine. On July 11, 2018, Detective Matt Young of the Warrick

      County Sheriff’s Office submitted an affidavit for probable cause and

      application to place a GPS tracking device on Heuring’s 1999 Ford Expedition.

      A magistrate granted the search warrant, and on July 13, Detective Young

      placed the device on Heuring’s Ford Expedition. The GPS tracking device was

      a 4” x 6” “little black box” with a magnetic casing and contained inside was

      software that provides signals indicating the device’s location to satellites.

      Transcript at 5. From July 13 through July 19, the device signaled its location

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 2 of 11
      throughout the day. Most of the readings were from Heuring’s residence,

      which was located on West State Road 62 in Boonville, Indiana, and from a

      nearby barn.


[3]   The last update from the device came from Heuring’s residence on July 20 at

      7:34 p.m. Although the device did not provide any more updates, the device’s

      battery reading was 100%. Several days later, on July 23, Detective Young

      contacted U.S. Fleet Services, the technicians of the device, to inquire as to why

      there were no readings if the battery was fully charged. The technician told

      Detective Young that the satellite “was not reading and that the device could

      have been unplugged and plugged back in to cause that.” Exhibit Volume at

      31. At some point, Detective Young observed the vehicle in a barn on McCool

      Road in Boonville and confirmed the property belonged to Heuring’s parents.

      Officers also observed that some of the vehicle’s tires had been slashed, which

      explained why the vehicle was in the barn and possibly indicated that the barn

      had been affecting the satellite reception.1


[4]   On July 30, 2018, Deputy Jarrett Busing of the Warrick County Sheriff’s

      Department and Detective Young drove by the barn on McCool Road and

      observed Heuring’s vehicle. While conducting surveillance on the barn, they

      observed two individuals come to the barn and then leave. The officers

      followed one of the individuals and, when they returned to the barn, Heuring’s




      1
        It is unclear from the affidavit whether the officers were able to observe the vehicle in the pole barn from the
      road or whether the officers had to look inside the barn to observe the vehicle.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019                         Page 3 of 11
      vehicle was gone. The officers then drove to Heuring’s residence and observed

      the vehicle parked at the house. Detective Young contacted U.S. Fleet Services

      once again to determine whether the device was providing a signal now that it

      had been removed from the barn. The technician informed Detective Young

      that “the device was not registering and needed a hard reset.” Id. at 16. After

      talking with the technician, the officers decided to attempt to retrieve the device

      from the vehicle parked at Heuring’s house. Detective Young went to retrieve

      the device from the vehicle and discovered that it was no longer there.


[5]   Based on these facts, Deputy Busing applied for two search warrants to locate

      the GPS – one for Heuring’s residence and one for the property on McCool

      Road belonging to Heuring’s parents. Both affidavits asserted there was

      “probable cause to believe that property constituting fruits, instrumentalities

      and evidence of the crime of theft[,]” namely a black 6” x 4” GPS tracking

      device, was being concealed on the property. Id. at 15, 30. In the affidavits,

      Deputy Busing also stated, “In my training and experience with GPS tracking

      devices, I have never seen a device lose power for more than a couple of hours

      and [the devices] have always come back on the system. I have been made

      aware that a device has gotten disengaged from a vehicle by accident but was

      able to be located because the device was still giving readings by the satellite.”

      Id. at 17, 32. At 5:34 p.m. on July 30, a magistrate granted warrants to search

      the “[p]remises, outbuildings, vehicles, and curtilage” of the properties. Id. at

      13, 28.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 4 of 11
[6]   Officers split into teams to execute the warrants. At 6:16 p.m., the officers with

      Deputy Busing executed the warrant to search the property on McCool Road.

      Heuring and a female were located in a nearby barn. While searching the pole

      barn, Deputy Busing opened a desk drawer and discovered a “large glass pipe”

      typically used to ingest methamphetamine. Id. at 38. Based on the discovered

      paraphernalia, Deputy Busing then applied for a warrant to search the property

      for evidence of narcotics and paraphernalia, which was granted. The GPS

      tracker was discovered during the second search in a “locked locker in the

      bathroom of the barn.” Tr. at 12.


[7]   In the meantime, Detective Young, along with several other officers and

      detectives, went to Heuring’s residence to execute the warrant. Heuring’s

      residence was about a half mile from his parent’s property. After knocking and

      receiving no response, officers breached the door to get into the house. In plain

      view, officers discovered “three lines of a crystal substance” in a dish on the

      kitchen counter and a long glass pipe containing a “white powder substance[.]”

      Appellant’s Appendix, Volume II at 23. Officers also observed a handgun in a

      backpack on the floor. While officers continued to search the house for the

      GPS device, Detective Young applied for a warrant to search for

      methamphetamine and other illegal drugs, which was granted at 7:35 p.m. A

      black GPS box, or casing, was discovered inside a locked safe in the bedroom of

      the residence along with two bags of methamphetamine and a container with

      pills. Officers also located various items indicating the using and dealing of

      methamphetamine, including (among numerous other items) digital scales, a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 5 of 11
      crystal substance that field tested positive for methamphetamine, and razor

      blades.


[8]   On August 1, 2018, the State charged Heuring with the following: Counts 1

      and 2, dealing in methamphetamine, Level 2 felonies; Count 3, possession of

      methamphetamine, a Level 3 felony; Count 4, dealing in methamphetamine, a

      Level 4 felony; Count 5, possession of methamphetamine, a Level 5 felony;

      Count 6 possession of a narcotic drug, a Level 6 felony; Count 7, unlawful

      possession or use of a legend drug, a Level 6 felony; Count 8, theft, a Class A

      misdemeanor; and Count 9, possession of paraphernalia, a Class C

      misdemeanor.


[9]   Heuring filed a motion to suppress all evidence found during the searches on

      July 30, 2018, alleging the searches were in violation of the Fourth Amendment

      to the United States Constitution and Article 1, section 11 of the Indiana

      Constitution. The State filed an objection to Heuring’s motion and the trial

      court held a hearing on the motion on November 5, 2018. In his post-hearing

      brief, Heuring argued that the “affidavits requesting warrants to search for the

      GPS tracker fail[ed] to establish probable cause to believe 1) That the tracker

      was the fruit, instrumentality or evidence of theft, and 2) that it would likely be

      found at [Heuring]’s residence” and, as a result, the discovery of drugs and

      paraphernalia on his property should be suppressed as fruit of the poisonous

      tree. Appellant’s App., Vol. II at 53. The trial court denied Heuring’s motion

      to suppress and certified its order for interlocutory appeal, which we accepted.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 6 of 11
                                  Discussion and Decision
                                      I. Standard of Review
[10]   We review the denial of a motion to suppress similar to claims challenging the

       sufficiency of the evidence. Love v. State, 842 N.E.2d 420, 424 (Ind. Ct. App.

       2006). That is, the record must disclose substantial evidence of probative value

       that supports the trial court’s decision. Mehring v. State, 884 N.E.2d 371, 376

       (Ind. Ct. App. 2008), trans. denied. We do not reweigh the evidence. Id.

       Instead, we consider the evidence most favorable to the trial court’s ruling and

       any uncontested evidence favorable to the defendant. Bowers v. State, 980

       N.E.2d 911, 913 (Ind. Ct. App. 2012). Although we give deference to a trial

       court’s determination of the facts, the constitutionality of a search or seizure is

       reviewed de novo. Id.


                        II. Probable Cause to Search for GPS
[11]   Heuring challenges the validity of the warrants authorizing the police to search

       for the GPS. Specifically, he argues that there was insufficient evidence in the

       affidavits to establish probable cause to believe that the GPS tracker had been

       stolen, and the subsequent discovery of narcotics and paraphernalia constitute

       fruit of the poisonous tree that should be suppressed.


[12]   The Fourth Amendment to the United States Constitution and Article 1,

       section 11 of the Indiana Constitution both require probable cause for the

       issuance of a search warrant. Rader v. State, 932 N.E.2d 755, 758 (Ind. Ct. App.

       2010), trans. denied. “Probable cause is a fluid concept incapable of precise
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 7 of 11
       definition and must be decided based on the facts of each case.” Id.

       “Ultimately, the task of a magistrate in deciding whether to issue a search

       warrant is simply to make a practical, commonsense decision whether, given all

       the circumstances set forth in the affidavit . . . there is a fair probability that

       contraband or evidence of a crime will be found in a particular place.” McGrath

       v. State, 95 N.E.3d 522, 528 (Ind. 2018) (internal quotation omitted). When

       reviewing a magistrate’s decision to issue a warrant, we apply a deferential

       standard. Newby v. State, 701 N.E.2d 593, 598 (Ind. Ct. App. 1998). We

       evaluate whether the reasonable inferences drawn from the totality of the

       evidence support the probable cause finding. McGrath, 95 N.E.3d at 528.

       “Rather than consider post hoc justifications for the search, we evaluate only the

       evidence presented to the issuing magistrate.” Id.


[13]   Here, the affiant, Deputy Busing, stated he believed that the properties

       contained fruits, instrumentalities and evidence of theft. “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[.]” Ind. Code § 35-43-4-2(a). In the affidavit, Deputy Busing set

       forth the following facts in support of this belief:


           • the device consistently provided signals from July 13 to July 19;

           • updates ceased after July 20 at 7:34 p.m.;

           • a technician at U.S. Fleet Service told Detective Young the device “could

               have been unplugged and plugged back in” to cause the lack of readings

               despite being fully charged;
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 8 of 11
           • he observed the vehicle in the pole barn and believed that the barn was

               affecting satellite reception;

           • the officers observed the vehicle outside of the pole barn on July 30 but

               later that day, it had been moved to Heuring’s residence;

           • Detective Young again contacted U.S. Fleet Service and was informed

               the device was still not registering although the vehicle was no longer in

               the barn and the device required a “hard reset”;

           • the officers discovered the device was no longer on the vehicle; and

           • in Deputy Busing’s training and experience with these devices, he had

               “never seen a device lose power for more than a couple of hours and

               [that] they have always come back on the system. [He had] been made

               aware that a device has [become] disengaged from a vehicle by accident

               but was able to be located because the device was still giving readings by

               the satellite.”


       Exhibit Vol. at 16-17.


[14]   Heuring argues that the evidence establishes that the device could have become

       detached and damaged by accident or malfunctioned and the facts in the

       affidavit “do not lead a reasonable person to conclude that the unit was

       removed by human intervention and [was] likely to be found at one of the

       locations.” Appellant’s Brief at 11 (footnote omitted). We disagree. Based on

       the information provided in the affidavit, one could reasonably infer that even if

       the device fell off the vehicle or had been innocently removed by a person, the

       device would continue to provide readings. Heuring’s argument is merely an
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 9 of 11
       invitation to reweigh the evidence in his favor, which is not our role. Mehring,

       884 N.E.2d at 376. Given our deferential standard with respect to the issuance

       of warrants, we conclude that the reasonable inferences drawn from the totality

       of the evidence presented in the affidavits support the probable cause finding

       that evidence of theft of the GPS tracker was likely to be found on the

       properties.


[15]   We conclude the affiant provided sufficient evidence in the affidavits to

       establish probable cause to believe the GPS tracking device had been stolen,

       and therefore, the warrants to search for the device were valid. Because these

       warrants were valid, the evidence discovered during the execution thereof and

       pursuant to the subsequent warrants for narcotics and paraphernalia do not

       constitute fruit of the poisonous tree.2 As such, substantial evidence of

       probative value supports the trial court’s denial of Heuring’s motion to

       suppress.



                                                  Conclusion
[16]   For the reasons set forth above, we conclude substantial evidence of probative

       value supports the trial court’s denial of Heuring’s motion to suppress.




       2
        The State also argued that even if there was insufficient evidence in the affidavits to establish probable
       cause, the evidence seized was admissible under the good faith exception to the exclusionary rule – that the
       police relied on the warrant in good faith. Because we conclude above the affidavits sufficiently established
       probable cause, we need not address this issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019                     Page 10 of 11
       Therefore, we affirm the trial court’s ruling and remand for further proceedings

       consistent with this opinion.


[17]   Affirmed and remanded.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-140 | July 18, 2019   Page 11 of 11
