This piece was written for Drug War Chronicle by criminal justice reporter Clarence Walker, [email protected].
What happens if an unsuspecting citizen finds a police-installed GPS tracking device attached beneath his vehicle? As documented in the case of Indiana v. Derek Heuring, things can turn pretty strange.
At first glance, the "tiny box" resembled a bomb -- so the vehicle owner snatched the GPS tracker and tossed it. But should the law then allow the arrest of a person for theft of the GPS? The police thought so, because this bizarre sequence of events happened to suspected drug seller Derek Heuring, a Boonville, Indiana resident.
After they executed a search warrant, the Warrick County Sheriff Department narcotics officers in Heuring's hometown charged him with theft of a GPS tracker, which they had secretly put on his SUV. Heuring never knew who owned the tracker or why the device had been under his vehicle.
A search warrant must clearly show the officers had sufficient probable cause to believe Mr. Heuring had committed a crime to make a theft of the GPS stick. How can people be lawfully charged with theft of property found on one's vehicle, when they didn't know it was there in the first place?
Evansville Indiana criminal attorney Michael C. Keating insisted from the beginning that Heuring did not know what the device was or who it belonged to -- and Keating said his client "had no obligation to leave the GPS tracker on his vehicle."
Desperate to find the GPS, officers executing the search warrant on separate properties owned by the Heuring's family scored a bonus when they recovered meth, drug paraphernalia, and a handgun.
The Indiana Supreme Court Justices threw out the GPS theft charge including the methamphetamine possession charges on February 20, 2020.
"I'm not looking to make things easier for drug dealers," Justice Mark Massa said during arguments on the case. "But something is left on your car even if you know it's the police tracking you, do you have an obligation to leave it there and let them track you -- and if you take it off you're subject to a search of your home?" Massa asked rhetorically.
Deputy Attorney General Jesse Drum answered Massa's question with a resounding "yes".
"The officers did everything they could to rule out every innocent explanation," Drum told the justices, hoping to have the warrants upheld and win the state's case.
This legal groundbreaking story is important for law enforcement authorities, judges, prosecutors, and the public because the charges against Derek Heuring highlight the wide-ranging tactics police often use to justify illegal searches in drug cases, as well as raising broader questions about privacy and government surveillance.
In addition, Heuring's case raises the question of whether the police, even with a warrant, should have the leeway to both place a tracking device on a person's vehicle and forbid the individual to remove it from their vehicle if the person knows the police put it there to watch their every move. For example, if a person discovered a hidden camera in his bedroom should the law require him to leave it there without removing it -- knowing the police are trying to build evidence against them?
Antoine Jones (photo by Clarence Walker)
became the first landmark case to be decided by the US Supreme Court involving law enforcement's illegal use of a GPS tracking system. Jones had been sentenced to life in prison without parole on drug conspiracy charges and his conviction was reversed on January 23, 2012. FBI and DEA agents planted a warrantless GPS on Jones' vehicle to monitor his movements thinking he was a Mexican cartel associate responsible for distributing mass amounts of cocaine in the Washington DC area. Jones' case is the standard-bearer that forces law enforcement in America today to first obtain a warrant to track someone with a GPS. Antoine Jones singlehandedly fought the almighty Feds tooth, nail, and claw, and finally won his freedom.
In Heuring's situation, the circumstances show how the narcs used a dubious search warrant to recover a GPS tracker claiming that Heuring had stolen it. The police charged him with the GPS theft without evidence that a theft occurred. They were hoping a bogus theft case would suffice against Heuring whom they suspected of dealing illegal drugs.
In a final ruling against state prosecutors that effectively dismissed the cases altogether, another justice opined, "I'm struggling with how that is theft," said Justice Steven David.
"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 the affidavits were so lacking in probable cause that the good-faith exception to the exclusionary rule does not apply," Justice Loretta Rush wrote.
Thus, under the exclusionary rule, "the evidence seized from Heuring's home and his father's barn must be suppressed."
"We reverse and remand,'' the Indiana Supreme Court Justices wrote.
How It Went Down
Indiana resident Derek Heuring (Facebook)
During summer 2018, Warrick County Sheriff Department narcotic officers Matt Young and Jarrett Busing received information from an informant that Heuring was slinging dope for a living. Officer Young obtained a warrant on July 28 to place the department's GPS tracking devices onto Heuring's Ford Expedition SUV to track his movements for 30 days. This GPS tracker was a black box, about 4 inches by 6 inches with no identification to identify where it came from.
The warrant authorized 30 days of tracking, but the device failed to transmit Heuring's location after the sixth day. Then on the seventh day, the narcs received a final update from the tracker showing Heuring's SUV at his residence. The officers were increasingly puzzled over why they weren't detecting location information three days later. Finally, however, a technician assured the officers that the battery was fully charged but that the "satellite was not reading."
Alarmed over the ensuing problem, Officer Busing decided to check out the happenings with the GPS. Busing drove over to Heuring's father's barn where the SUV was parked. He thought the location of the barn thwarted the satellite signal. Subsequently, the officers saw the vehicle parked away from the barn, and then parked outside of the family's home. Officer Young again contacted a technician "to see if the GPS would track now." The tech informed him, "that the device was not registering and needed a hard reset."
Officers went to retrieve the GPS from the SUV, but it was gone!
The officers discussed how a GPS had previously disengaged from a vehicle by accident, yet still, the device was located because the GPS continued to transmit satellite readings. Convinced the GPS had been stolen and stashed in either Heuring's home or his father's barn, Officer Busing filed affidavits for warrants to search both locations for evidence of theft of the GPS.
With guns drawn, deputies stormed Heuring's home and the barn. Deputies recovered meth, drug paraphernalia, and a handgun. Next, Officer Busing obtained warrants to search the house and barn for narcotics. The officers located the GPS tracker during the second search, including more contraband. Finally, deputies arrested the young man.
Although a jury trial hadn't taken place, Heuring's defense attorney Michael Keating filed a series of motions in 2018 to suppress the seized evidence. Keating challenged the validity of the search warrants under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. Keating's motion argued the initial search warrants were issued without probable cause that evidence of a crime -- the theft of the GPS device -- would be found in either his home or his father's barn. Prosecutors argued the opposite, and the trial court judge ruled against Heuring, thus setting the stage for defense attorneys to appeal the trial court adverse ruling with the first-level state appellate court, arguing the same facts about the faulty search warrants. After hearing both sides, the appellate judges upheld the trial court's refusal to suppress the evidence against Heuring.
Despite the trial court and the lower-level court upholding the questionable warrants the Indiana Supreme Court Justices heard oral arguments from the defense attorney and the attorney general on November 7, 2019. The central point of the legal arguments boiled down to the search warrants. Supreme Court justices pinpointed the fallacies of the officer's search warrants by in their opinion.
Indiana Supreme Court Chief Justice Loretta Rush
"All of the evidence must be suppressed because the initial warrant was invalid," Justice Rush wrote. "Affidavits filed by the officers in support of the search warrant failed to establish probable cause in two respects; first the warrants lacked information that the person who removed the GPS was aware to get consent from the Sheriff's Department, and second, the affidavits lacked information that there was an intent to deprive the Sheriff's Department of the value or use of the GPS."
The justices concurred, "The affidavits support nothing more than speculation -- a hunch that someone removed the device intending to deprive the Sheriff's Department of its value or use."
"We find it reckless for an officer to search a suspect's home and his father's barn based on nothing more than a hunch that a crime had been committed. We are confident that applying the exclusionary rule here will deter similar reckless conduct in the future", Justice Rush concluded.
Derek Heuring is a free man today. Thanks to common sense judges.
And Another GPS Tracking Case: Louisiana Woman Cold-Busted State Police Planting GPS on Her Vehicle; She Removes It; Police Want it Back
Just last year in March, an alert citizen identified as Tiara Beverly was at home in her gated apartment complex in Baton Rouge, Louisiana preparing to run errands when she noticed something peculiar. She spotted a group of suspicious white men standing near her car. Beverly's adrenaline shot sky-high when she saw one of the cool-acting fellows bend over and placed something under her car.
"I instantly panicked," Beverly told local television station WBRZ. "I didn't "know if it was a bomb, but I found out it was a tracker.
Unsatisfied with Beverly's denial that she didn't have a location on the person they were looking for, the police planted a GPS under her car. Two weeks prior, Louisiana State Troopers visited Beverly's home and harshly questioned her about a personal friend she knew. Again, Beverly vehemently denied knowing the person's whereabouts. Finally, two days later, the officers put the GPS on Beverly's vehicle, Details are sketchy of how the police gathered evidence to arrest Beverly on narcotic-related charges in February 2021. A judge released Beverly on a $22,000 bond.
When Beverly finally determined the GPS was placed on her vehicle by police, she rushed to the local NAACP in Baton Rouge and told her story to NAACP president Eugene Collins. Collins told the reporter he contacted the police on Beverly's behalf and the police immediately demanded Collins and Beverly to return the GPS tracker -- and they threatened her.
"They asked me to return the box, or it could make the situation more difficult for me," Collins recalled.
Civilians are prohibited from possessing or using GPS devices, but they are legal for law enforcement, parole, and probation officers or correctional officials to use, according to Louisiana Revised Statute 14: 222.3.
Police told reporters they had a warrant for the tracking device placed on Beverly's vehicle. However, when the WBRZ reporter asked to see the warrant, the State Trooper's Office declined to produce it, issuing the following statement: "Upon speaking with our detectives, this is part of an ongoing investigation involving Ms. Beverly and a suspect with federal warrants."
The Public Information Officer added, "Further information regarding charges and investigative documents will be available."
"The fact that a young woman can see you doing something like this means you're not very good at it," Collins told WBRZ.
Police in Beverly Tiara's case had a good shot to track her whereabouts, yet they blew it big time. Tiara's case isn't over yet, so we'll be reporting on future developments.
In Derek Heuring's criminal charges, Chief Justice Loretta Rush summed it up best when she said, "There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few to protect the privacy of us all."
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Costa Rica becomes the latest country to legalize medical marijuana, an Oklahoma psychedelic study bill is moving, and more.
President Biden used the SOTU to outline policies on overdoses and the opioid epidemic. (whitehouse.gov)
GOP Congresswoman Says Her Marijuana Legalization Bill Will Get a Hearing. Rep. Nancy Mace (R-SC), who has filed the States Reform Act legalization bill (HR 5977), said Thursday that she has received reassurances that her bill will get a hearing even though her party is in the minority. She also said that there was "no quid pro quo" requiring her to support House Judiciary Committee Chairman Jerrold Nadler's (D-NY) Marijuana Opportunity, Expungement and Reinvestment (MORE) Act (HR 3617). "Personally, I want to respect the process and MORE is going to come up again and let Democrats do MORE Act. It'll die in the Senate," she said. "And so when that's done, we will do our hearing, and there was nothing done in exchange for it. I just made the ask and we're making it happen."
Opiates and Opioids
Sacklers and Purdue Pharma Reach New Deal with States Over Opioids. Members of the Sackler family, who founded Purdue Pharma, have announced a deal with a group of states that had resisted Purdue's bankruptcy plan. Under the deal, which would settle thousands of pending lawsuits for the company's role in the opioid crisis and still must be approved by a judge, the family agrees to pay an additional one billion dollars, bringing the total they have now agreed to pay to $6 billion. "While the families have acted lawfully in all respects, they sincerely regret that OxyContin, a prescription medicine that continues to help people suffering from chronic pain, unexpectedly became part of an opioid crisis that has brought grief and loss to far too many families and communities," they said in a statement. While Purdue Pharma pleaded guilty to criminal charges of minimizing OxyContin's risk of addiction and misleading marketing, no Sackler family member has ever been criminally charged or admitted wrongdoing.
Psychedelics
Oklahoma Bill to Study Therapeutic Psychedelics Advances. A bill that seeks to allow research into the therapeutic uses of psychedelics, House Bill 3414, has been approved by the House Public Safety Committee and now heads for a House floor vote. The bill, sponsored by Rep. Daniel Pae (R-Lawton), would allow the state's universities and other research institutions to begin studying psilocybin and psilocyn, the psychoactive substances in magic mushrooms.
Drug Policy
Biden Uses State of the Union to Outline Policies on Addiction and Overdose Epidemic. The president outlined his comprehensive approach, including increased funding for public health and supply reduction. He is requesting a historic $41 billion for drug policy efforts that will further these efforts, including $10.7 billion for the Department of Health and Human Services "to fund research, prevention, harm reduction, treatment, and recovery support services, with a focus on meeting the needs of populations at greatest risk for overdose and substance use disorder." Overall, the president is proposing $23.5 billion for public health approaches to drug use and its consequences.
The Administration has prioritized funds for harm reduction. The American Rescue Plan included $30 million in support for harm reduction services -- a historic amount that will enhance interventions like syringe services programs. Additionally, CDC and the SAMHSA announced that federal funding may now be used to purchase fentanyl test strips in an effort to help curb the dramatic spike in drug overdose deaths.
The president also proposed spending $17.5 billion for supply reduction (read: enforcing drug prohibition), including $5.8 billion for interdiction efforts, an increase from the amount spent this year.
International
Costa Rica Legalizes Medical Marijuana. With the signature of President Carlos Alvarado on a revised medical marijuana bill, Costa Rica becomes the latest nation to legalize medical marijuana. Earlier in the year, Alvarado had vetoed the bill, but lawmakers made changes requested by the president. The bill also legalizes hemp, but not recreational marijuana. Alvarado is about to leave office, and the two presidential candidates seeking to replace him, José MarÃa Figueres and Rodrigo Chaves, have both spoken in favor of legalizing recreational use of marijuana.
New Zealand Medical Marijuana Patients Now Have Access to Smokeable Buds. Medical marijuana patients suffering from chronic pain will now be able to purchase smokeable buds after the Ministry of Health approved imports from an Australian firm. The buds are supposed to only be used to make a tea, but smoking or vaping them activates their soothing qualities more quickly, and patients and providers say it will be smoked and vaped.
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Bills to produce marijuana-consuming workers advance in Illinois and DC, an Idaho bill to require drug tests for substitute school teachers is killed, and more.
Legislation legalizing fentanyl test strips as an overdose prevention measure is moving in several states.
Illinois House Approves Workplace Protections for Marijuana Users. The House last Thursday approved a bill that would bar most employers from firing workers or refusing new hires merely for testing positive for marijuana use. House Bill 4116 now moves to the Senate. "If we're going to legalize the substance, you should talk about individual liberties and what people want to do on their weekends," the bill's sponsor, Rep. Bob Morgan (D) said. "We should allow people to make good choices and not be discriminated against in the workplace because of those choices as long as it's not affecting the workplace."
South Dakota House Kills Marijuana Legalization Bill (Again). The House on Thursday killed a marijuana legalization bill, Senate Bill 3, that had been revived via a procedure called a smokeout earlier in the week. The bill had already passed the Senate, only to be killed by the House State Affairs Committee last Monday. But 24 members rose last Tuesday to revive the bill, only to see the House kill it once and for all. That clears the way for a marijuana legalization initiative campaign that is already in the signature gathering process.
Washington, DC, Council Committee Approves Bill to Ban Most Pre-Employment Marijuana Testing. The DC Council's Labor and Workplace Development Committee voted unanimously last Thursday to approve a bill to ban most workplaces from subjecting job applicants to pre-employment marijuana testing. This is an important step towards eliminating historic inequities of cannabis use and ensuring that those who use cannabis medically or recreationally are not penalized in their workspaces [for what they do] on their private time," said bill sponsor Councilmember Trayon White (D). The bill now heads before the full Council.
Drug Testing
Idaho Bill to Drug Test Substitute Teachers Killed. A bill that would have required that substitute teachers be drug tested, House Bill 651, died in a House floor vote last Thursday. Bill sponsor Rep. Judy Boyle (R-Midvale) was worried that substitute teachers would either use drugs or sell them to children. "Substitutes come and go. Most districts have no qualifications other than, you're 18, you want to sub, let's go for it. This provides a horrid opportunity for people who want to either solicit drugs to our children or are on drugs themselves." The bill advanced to the House floor despite the opposition of school districts and educators only to be shot down on a 38-31 vote.
Harm Reduction
Tennessee Senate Approves Fentanyl Test Strip Bill. The state Senate has approved legislation legalizing the use of fentanyl test strips, HB2177, in a bid to reduce overdoses in the state. The test strips are currently banned as drug paraphernalia, but this bill removes them from that classification. The bill was supported by the Department of Mental Health and Substance Abuse Services and now heads to the desk of Gov. Bill Lee (R).
International
Israel Moving to Decriminalize Marijuana as Legalization Stalls in Knesset. With marijuana legalization stalled in the Knesset, Justice Minister Gideon Sa'ar announced Sunday that the government is considering decriminalizing recreational marijuana use and expunging the criminal records of those convicted of personal possession or use of marijuana. Sa'ar is expected to sign regulations putting the move into effect in coming days, with approval at the Knesset expected shortly thereafter. The change would go into effect immediately upon approval by the Knesset.
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Oklahoma Republicans move to take on what they see as an out of control medical marijuana system, Afghan farmers are planting more opium poppies this year, and more.
Opium production is surging in Afghanistan's poppy heartlands of Helmand and Kandahar. (UNODC)
Oklahoma GOP Lawmakers Move to Rein in "Wild West" Medical Marijuana System. The House's Republican Caucus on Monday rolled out a package of bills aimed at reining in the state's free-wheeling medical marijuana program. The move comes after state agents seized more than 150,000 marijuana plants in a bust last month. "We have seen black market elements competing with legitimate Oklahoma businesses. They are putting our citizens at risk. They're doing things in an illegal, unethical manner," said Rep. Jon Echols (R-Oklahoma City). The package of 12 bills includes full implementation of a seed to sale system, grants to county sheriffs to fund law enforcement, making the Oklahoma Medical Marijuana Authority a stand-alone agency, provisional licensing with pre-licensing inspections, separate licensing for wholesalers, tough electrical and water data reporting by growers, annual inspection, and more. "If you're an illegal operator of the state of Oklahoma, your time is up," warned Rep. Scott Fetgatter (R-District 16).
Drug Policy
Rhode Island Drug Decriminalization, Therapeutic Psilocybin Bills Filed. Lawmakers filed a pair of drug reform bills last week, one of which, House Bill 7896, would decriminalize the possession of up to an ounce of all drugs except fentanyl, while the second bill, House Bill 7715, would allow doctors to prescribe psilocybin and would decriminalize psilocybin and buprenorphine. Buprenorphine is an opioid often used as a harm reduction tool to help people transition away from more addictive compounds. The broader decriminalization bill, would make possession of up to an ounce of any drug other than fentanyl a civil violation punishable by a $100 fine for a first offense and up to $300 for subsequent offenses.
Psychedelics
Missouri GOP Lawmaker Files Therapeutic Psychedelics Bill. State Rep. Tony Lovasco (R) on Tuesday filed House Bill 2850, which would legalize a range of natural psychedelics for therapeutic use and decriminalize small-time possession. Under the bill, patients with specified conditions such as treatment-resistant depression, PTSD, and terminal illnesses access to substances such as psilocybin, DMT, mescaline, and ibogaine at designated care facilities or the patients' or caregiver's residence. Patients would be allowed to possess and use up to four grams of the substances. The bill decriminalizes the possession of less than four grams outside the medical model but makes possession of more than four grams a class A misdemeanor punishable by up to a year in jail.
International
Afghan Opium Production Surges in Kandahar and Helmand. Opium and other drugs are being sold in open markets, and farmers in the country's opium heartland of southern Helmand and Kandahar provinces are sowing more poppies this year amidst the country's economic collapse after the Taliban's seizure of power last summer and the subsequent withdrawal of all Western assistance to the country. "There is nothing else to cultivate. We were growing wheat before. This year -- we want to cultivate poppy. Previously they were asking for bribes every day but we don't have that problem this year," one farmer said. "If we don't cultivate poppy, we don't get a good return, the wheat doesn't provide a good income," farmer Mohammed Kareem said. "There are no restrictions this year. If the Taliban wanted to ban it, they must let us grow it this year at least," added farmer Peer Mohammad.
Myanmar Militias, Rebel Armies Ramp Up Drug Dealing Amidst Civil War. Armed groups on both sides of Myanmar's civil war are ramping up drug production amidst the turmoil, with much of the methamphetamine and heroin supply going to Asian countries through the porous Laotian border, a UN Office on Drugs and Crime (UNODC) official said this week. The $60 billion trade based largely in Shan state is now going into overdrive, he said. "Seizures in Laos and Thailand are off the charts and it is not because of suddenly improved law enforcement -- some other countries' seizures are up too, but in Thailand and Laos the connection to trafficking patterns and locations in Shan is very clear," said Jeremy Douglas, UNODC representative for Southeast Asia and the Pacific.
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The Washington Post has a major piece on police misconduct payouts, an expungement bill advances in California, and more.
A medicinal psilocybin task force bill advances in Hawaii. (Creative Commons)
Poll: Two Thirds of Americans Want Congress to Allow Licensed Marijuana Businesses Access to Banking Services. A new poll from Morning Consult conducted on behalf of the American Bankers Association shows strong support for ending federal restrictions that block state-legal marijuana enterprises from accessing financial services. The poll found that 65 percent of respondents "support allowing cannabis businesses to access banking services (e.g., checking accounts, business loans) in states where cannabis is legal." An even higher number -- 68 percent -- said that Congress should pass legislation so those businesses can "access banking services and products in states" where it is legal. Backers of legislation that would do that, the SAFE Banking Act (HR 1996), have, though, so far been thwarted by Senate leadership, which is more interested in trying to pass a full-on legalization bill.
California Marijuana Expungement Bill Wins Committee Vote. A bill that would automatically expunge past convictions for marijuana offenses that are no longer illegal if such expungements have not been challenged by prosecutors by January 1, 2023, Assembly Bill 1706, passed out of the Assembly Public Safety Committee Monday. It now goes to the Assembly Appropriations Committee before heading for a potential Assembly floor vote.
Psychedelics
Hawaii Senate Approves Psilocybin Task Force Bill. The Senate on Tuesday approved Senate Bill 3160, which would create a working group to study the therapeutic benefits of psilocybin mushrooms and develop a long-term plan to ease access to psychedelics for medicinal use for people 21 and over. The bill passed on a unanimous 25-0 vote. It now goes to the House. "Because the State has a shortage of mental health professionals, the State should actively consider novel, innovative, and safe solutions to treat its residents," the bill says.
Law Enforcement
Cops Paid Out More Than $ Billion in Last Decade to Settle Misconduct Claims, Many for Repeat Offenders. In a major investigative piece, the Washington Post reports that law enforcement agencies across the country have paid out more than $3.2 billion to settle misconduct claims -- with thousands of police officers repeatedly accused of wrongdoing. The Post found more than 7,600 officers whose misconduct resulted in more than one claim, with the cost of those claims from repeat offenders reaching $1.5 billion. More than 1,200 officers were the subjects of at least five settlements and more than 200 had 10 or more. The Post suggested that the pattern of repeat settlements showed a lack of police accountability that costs taxpayers.
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