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.
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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 
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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 
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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” 
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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 goodfaith 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.
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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