Big DNR deer-poaching case tossed out over lack of warrant for GPS

A west-central Minnesota judge has tossed out the Minnesota Department of Natural Resources' highest-profile deer-poaching bust in recent memory, saying a GPS device that conservation officers attached to the suspect's pickup was illegal.

DNR officers had obtained a "tracking order" to surreptitiously attach an electronic gadget to Joshua Dwight Liebl's truck at his home in Dawson, Minn., on Oct. 8, 2014.

But that order was insufficient, District Judge Thomas Van Hon ruled Monday, saying a search warrant was needed instead.

Barring an appeal — which the DNR is considering — the head-and-shoulder mounts, or racks, of 37 dead deer that officers confiscated from Liebl, 38, along with 37 guns, an intact piebald white-tailed fawn and other wildlife, must be returned to Liebl, along with his truck.

The fawn, officers said, had been killed with a rifle, probably that fall. Only shotgun hunting is allowed in the region near Liebl's home.

On Oct. 21, 2014, using information gained from the tracking device, officers stopped Liebl and a friend in his truck and found a dead whitetail buck in the back of the vehicle.

The animal had been killed by a rifle bullet. Only archery hunting was allowed at the time. And though Liebl held a Minnesota archery license, officers said, it had been illegally purchased.

While Liebl was stopped, other officers arrived at his home with a search warrant, where they found the mounted deer and firearms. Liebl subsequently was charged with 13 criminal counts.

Attorney Bill Peterson of Bloomington, who represented Liebl, said his client exclaimed, "Hallelujah!" when informed of the judge's decision.

"This is an important victory for the rule of law and for the privacy of sportsmen of Minnesota," said Peterson. "It should establish once and for all that DNR enforcement officers are subject to the same constitutional standards as any policemen or other law enforcement officer."

Van Hon said in his ruling that had the DNR asked for a search warrant to place the tracking device on Liebl's truck, the request probably would have been granted.

"Although the [tracking order] application provided sufficient basis for finding probable cause to issue a warrant, no finding of probable cause was requested or made," Van Hon wrote in his decision. He added:

"The court cannot retroactively transform what is not a warrant into a warrant. The tracking order is not the equivalent of a warrant. … In the present case there was ample information to support a finding of probable cause for a warrant to issue for the GPS device."

The precedent case governing placement of tracking devices is United States vs. Jones. In that 2012 case, the U.S. Supreme Court ruled unanimously that, without a legal exception to the Fourth Amendment's warrant requirement guaranteeing protection against illegal search and seizure, a warrant is required to attach such devices to suspects' vehicles.

"The need for a warrant," Van Hon ruled, "is even more apparent in the present case than in Jones, because unlike in Jones, where a GPS unit was attached to the defendant's car in a public parking lot," the DNR device was attached in the driveway of Liebl's house.

Rebecca Trapp, assistant county attorney for Lac qui Parle County, had argued that only a tracking order was required.

In a brief filed with Van Hon on Feb. 26, Trapp said the Supreme Court's decision in the Jones case "does not require law enforcement to obtain a warrant to install a tracking device."

Trapp wasn't available Tuesday to explain why the DNR — which was aided by her office in its request for a tracking order — didn't instead ask for a warrant.

At 3 a.m. on Oct. 8, 2014, DNR conservation officer Jeff Denz and a colleague surreptitiously placed the device on Liebl's 2005 Chevy Silverado.

The action followed nearly five years of suspicion on the part of conservation officer Ed Picht and others in the DNR that Liebl had poached deer in western Minnesota, along the South Dakota border.

During their investigation, the officers conducted aerial surveillance of Liebl's home and staked out likely poaching spots.

A break in the case occurred when Picht learned from South Dakota conservation officer Adam Behnke that Behnke had returned two rifles to Liebl — a .22 and a .243 — that he'd confiscated when he cited Liebl for illegal shining — using bright light to locate and target animals at night in the woods — in South Dakota on Nov. 10, 2013.

That citation made it illegal for Liebl to purchase a hunting license in Minnesota for a year. But DNR databases checked by Picht showed that Liebl had purchased a Minnesota archery deer license on Sept. 17, 2014.

That information, along with information gained by Picht and other officers during their prolonged investigation, was submitted with the DNR's tracking-order request to District Judge Dwayne Knutsen.

Lt. Col. Rodman Smith, the DNR's enforcement chief, said that the agency is deciding whether to appeal and that it is in talks with the prosecutor and the DNR's general counsel.

"We're disappointed in the judge's ruling," Smith said.

If the DNR appeals, it probably would file those papers in a matter of days.

"It's going to be a short turnaround if we appeal," Smith said.

dennis.anderson@startribune.com 612-673-4424

tony.kennedy@startribune.com

612-673-4213