Quickies: A Fourth Amendment Conundrum

     Automobiles in public places have long been objects of legal controversy. Cops are eager to have them treated as outside the protections of the Fourth Amendment. However, current case law holds that without probable cause that a crime has been committed or is in the process of commission, a privately owned car is as protected against arbitrary search and seizure as is any privately owned building. One of the consequences is a form of police misconduct that’s very difficult to prosecute: the convenient “I smell marijuana” allegation. Cops have often used that dodge to compel a private citizen to submit to a search of his vehicle and person.

     But recently, something new has been added to the mix:

     Back in 2012, the US Supreme Court ruled that it's illegal for the police to attach a GPS tracking device to someone's car without a warrant. But what if you find a GPS tracking device on your car? Can you remove it? A little more than a year ago, the state of Indiana charged a suspected drug dealer [Derek Heuring] with theft for removing a government-owned GPS tracking device from his SUV. This month, the state's Supreme Court began considering the case, and some justices seemed skeptical of the government's argument. "I'm really struggling with how is that theft," said Justice Steven David during recent oral arguments.

     At trial, Heuring's legal team argued that the search had been illegal because the police didn't have probable cause to believe their client had committed theft. The defense pointed out that the device could have fallen off the car by accident or simply malfunctioned. Even if Heuring did take the device off the vehicle, he couldn't have known for sure that it belonged to the government. It wasn't exactly labeled as the property of the Warrick County Sheriff's Office. Most important, it's not clear that taking an unwanted device off your car is theft -- even if you know who it belongs to. With the case now at the state Supreme Court, the stakes are high. If Heuring can show that the police lacked probable cause to search his house, he could get all of the evidence gathered in the search thrown out -- not only evidence of GPS device theft, but evidence of drug dealing, too.

     It would certainly be ruled a Fourth Amendment violation were the police to attach a listening device to the wall of a private home. How is putting a GPS tracker on a private vehicle materially different? Though I doubt it, perhaps the state of Indiana will have a novel argument that sidesteps existing case law about the privacy protections of such vehicles. But no matter the verdict, the case will have implications for other police practices.

     For example, consider the “Denver boot:” a device used to immobilize a car or truck, the removal of which only occurs after the vehicle’s owner has paid a fine. So far, the use of such devices has not been successfully challenged in court. But should the placement of a GPS tracker on a car be ruled illegal, the underlying principle might extend far enough that the vehicle owner could destroy the boot, freeing his vehicle without legal penalty.

     This is a case worth watching.