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Guide to the Indiana Search and Seizure Laws

When the police are knocking at your door with a search warrant in hand, it’s critical to understand Indiana search and seizure laws and how they apply given your Fourth Amendment rights. This information will allow you to handle the situation properly and understand how the police obtained the search warrant.  

If you have been subject to a search warrant, there is a strong likelihood that criminal charges may be filed against you. In order to secure an optimal outcome in this situation, you’ll need to take action right now and hire an experienced, aggressive criminal defense attorney. The founders of Keffer Hirschauer LLP, Bradley Keffer and Tom Hirschauer III, are both former prosecutors who understand both sides of the criminal process in Indiana. They are both passionate about protecting the constitutional rights of everyday Hoosiers and invested in securing the best possible outcome for their clients. 

Looking for a Criminal Defense Attorney in Indiana? Call Keffer Hirschauer LLP Today.

Set up a free consultation with a criminal defense attorney today or give us a call at 317-751-7186.   

Indiana Law on Search Warrants 

The Fourth Amendment of the U.S. Constitution protects United States citizens from unreasonable searches and seizures. In addition, it requires that all search warrants be obtained by demonstrating probable cause and that the warrants specify the location that shall be searched and the property that shall be seized. In regard to search warrants, probable cause is a clear, articulated belief that a crime has been, is being, or will be committed, and that evidence of this crime can be found in a specific location.  

The search and seizure laws in Indiana, located in Indiana Code 35-33-5, outline the process for which a search warrant can be obtained; how search warrants shall be executed; and what kinds of actions are impermissible by law enforcement without a valid search warrant. This section will provide a brief overview of each of these topics. However, for more comprehensive information, it’s recommended that you speak with an Indiana criminal defense attorney who has extensive experience handling matters related to search and seizure.  

Obtaining a Serach Warrant in Indiana 

To obtain a search warrant in Indiana, law enforcement officers must prepare an affidavit detailing the probable cause for the search. This includes specifics about the location to be searched and the items sought. Once the affidavit is reviewed, and if the judge is convinced of the probable cause, a search warrant is issued. The execution of this warrant must be done within a reasonable timeframe, typically not exceeding 10 days. During the execution, officers must adhere to the specified terms of the warrant, ensuring that the search remains within the scope of what is authorized. 

Executing a Search Warrant 

As outlined in Indiana Code 35-33-5-1, search warrants in Indiana are obtained when police present a judge with an affidavit (written statement). The judge shall then use the information in the affidavit to decide whether probable cause has been properly established. If they believe it has, they will likely grant the request, allowing for the execution of the search warrant.  

Under the Search and Seizures laws in Indiana, search warrants may only be obtained when police are searching for the following:  

  • Unlawfully obtained property (i.e. stolen property) 
  • Unlawfully possessed property (i.e. child pornography) 
  • Property that may be used or possessed with the intent to be: (1) used as means of committing an offense or (2) concealed to prevent an offense from being discovered (i.e. burglary tools or smartphones equipped with specific, encrypted software) 
  • Property that constitutes evidence of an offense or tends to show that a particular person committed an offense (i.e. blood-stained clothing) 
  • Evidence that is necessary to enforce statutes enacted to prevent cruelty to or neglect of children (i.e. medical records or photographs) 
  • A firearm possessed by a person who is dangerous (as defined in Indiana Code 35-47-14-1

Components of a Search Warrant Affidavit  

As stated earlier, to obtain a search warrant in Indiana, law enforcement shall first present a judge with a search warrant affidavit. This document must paint a complete picture of which property law enforcement wants to search, what they are looking for and why they are looking for it. It must also state why they believe it is in the specified location. Clearly addressing all of these topics allows the judge to make a proper determination on whether there is “probable cause” to execute a search warrant.   

As stated in Indiana Code 35-33-5-2(3), a search warrant affidavit must contain the following items:  

  • The house or place to be searched 
  • The items to be searched for   
  • The criminal offense(s) that relates to the search  
  • Belief and good cause of the requesting party that the items sought are at the location requested  
  • The facts known to the requesting party via personal knowledge or hearsay, which constitutes probable cause  
  • If based on hearsay, reliable information establishing credibility of source and factual basis for the information furnished; or information establishing the totality of circumstances 

The Execution of a Search Warrant 

As prescribed by the search and seizure laws in Indiana, specifically Indiana Code 35-33-5-7, a search warrant must be executed within 10 days following its issuance and, “returned to the court without unnecessary delay after the execution.” When executing a search warrant, the police are required to knock on the door and announce their authority and purpose prior to entering the location. This requirement may, however, we skipped in certain situations, including:  

  • Waived by judge’s order 
  • Police officers are concerned about their safety 
  • Police officers are concerned about the preservation of evidence 
  • Police officers are not admitted into home following a knock and announcement of authority 

Once the police have entered the location listed on the search warrant, their search of the premises is limited to the areas listed on the warrant. The seizure of property is also limited to the items listed on the warrant, with one exception. Under the “plain view doctrine,” police can legally seize any item of property located in areas they were authorized to search if the item is clearly criminal in nature and was discovered inadvertently. For instance, if a warrant permits the police to search a person’s home office for documents related to a criminal matter, and they find illegal drugs on a desk in the office, they can legally seize the drugs and charge the person with possession of a controlled substance.  

Rights of Individuals during a Search Warrant Execution 

In summary, residents or property owners in Indiana have several specific rights when a search warrant is executed. First, in most situations, they have the right to be informed of the execution of a search warrant. This is because officers are required to knock and announce their presence before entry, unless circumstances justify a “no-knock” warrant. Additionally, the search must be limited to the areas and items specified in the warrant. Finally, Indiana residents have the right to see the warrant upon request. If these rights are violated, the evidence obtained can potentially be suppressed in court, in line with the exclusionary rule

Impermissible Actions by Law Enforcement:  

There are several actions that law enforcement officers may take, in the absence of a search warrant, that are impermissible and could result in evidence being excluded in a criminal case.  

Drone Surveillance: Under Indiana Code 35-33-5-9, law enforcement officers are required to obtain search warrants to conduct drone flights over or on private property; or to search, surveil, capture image, or obtain video of private property or persons, items or structures on private property. However, warrants are not required for the use of a drone if a warrant would not be required for a search NOT using a drone. If a law enforcement officer does conduct an impermissible search using a drone, the evidence collected may not be admissible in court.  

Electronic User Data: Under Indiana Code 35-33-5-11, without a valid search warrant, a law enforcement officer may not compel a user to provide a passkey, password, or keycode to any electronic communication service, device, storage, or any form of stored electronic user data. If they do compel a person/user to provide such information, without a valid search warrant, the evidence collected may be excluded from the case.  

Real Time Tracking Instruments: As provided by Indiana Code 35-33-5-12, members of law enforcement are prohibited from using real time tracking instruments that are capable of obtaining geolocation information concerning a cellular device or a device connected to a cellular network, except in limited situations. These situations include: (a) the officer or agency has obtained an order issued by a court finding probable cause to use such device; or (b) exigent circumstances exist that necessitate using the tracking instrument without first obtaining a court order. In situations where an instrument of this nature is used due to exigent circumstances, the officer/agency must seek to obtain a court order no later than 72 hours after the initial use of the instrument.  

Indiana Law on Property Seizure 

The search and seizure laws in Indiana stipulate specific guidelines on how to handle the seizure of property. As outlined in Indiana Code 35-33-5-5, the officer who executed the search warrant must provide the issuing court or judge with a return document indicating the date/time of execution and a list of all items seized in the search. The officer must also transfer the seized items to the law enforcement agency they serve so that the items can be held securely for the rest of the investigation. Under limited circumstances, some items seized during the execution of a search warrant may be returned to the owner.  

Property That May Be Returned to Owner Following Execution of a Search Warrant:  

  • Unlawfully obtained property may be returned to its owner before trial  
  • Property that can be lawfully possessed shall be returned to its rightful owner, if known. If unknown, the law enforcement agency holding the property shall make a reasonable attempt to find and notify its owner, who has 90 days (about 3 months) to take possession of it.   
  • Any firearm that has been seized from a person who is considered dangerous (as defined in IC 35-47-14-1) can be returned, retained, or disposed of in accordance with IC 35-47-14

Indiana Pirtle Warnings 

Pirtle rights, named after a landmark Indiana Supreme Court case, are critical to understanding search and seizure laws in Indiana. These rights specifically address the scenario where an individual is in police custody and law enforcement seeks consent to search.  

In Pirtle v. State of Indiana, Robert Pirtle was questioned by law enforcement, and read his Miranda rights. However, he did not waive his rights. Later, another officer asked Pirtle for consent to search his apartment and evidence of a crime was found. Ultimately, Pirtle appealed the case and argued that the consent to search was not voluntary because he had asked for an attorney. Therefore, the evidence found should be suppressed. The case eventually made its way to the Indiana Supreme Court, who ruled that once a person is in police custody, if they are asked to consent to a search, they are entitled to have an attorney present prior to making any decision on the consent of a search. As a result of this landmark case, when police ask a person in custody for consent to search, they must read them their Indiana Pirtle warnings.  

Pirtle Warning in Indiana: “You have the right to require that a search warrant be obtained before any search of your residence, vehicle, or other premises. You have the right to refuse to consent to any such search. You have the right to consult with an attorney prior to giving consent to any such search. If you cannot afford an attorney, you have the right to have an attorney provided to you at no cost.” 

In summary, Pirtle rights in Indiana ensure that individuals are informed of their right to refuse consent to a search and their right to consult with an attorney before deciding whether to grant consent. This is a unique protection offered by Indiana law, emphasizing the importance of legal counsel in situations where an individual’s rights could be significantly impacted. 

Questions about the Search and Seizure Laws in Indiana? 

Understanding your rights under the search and seizure laws in Indiana is vital to protecting both your rights and your freedoms. If you are currently under investigation, have been raided by police, or anticipate that you may be raided, you’ll want to contact a dedicated and skilled criminal defense attorney in Indiana. They will be able to help protect you and your rights and ensure that any search warrant is (or has been) executed in a lawful manner.  

The Indianapolis criminal defense lawyers at Keffer Hirschauer LLP are led by two former deputy prosecutors turned defense attorneys who are now fighting for the rights of everyday Hoosiers. We take a team-based approach to every case and utilize effective and aggressive defense strategies aimed at securing the optimal outcome for each client.  

To speak with one of our experienced and driven trial attorneys, call 317-751-7186 or schedule a risk-free case consultation online.   

Summary
Article Name
Your Guide to the Indiana Search and Seizure Laws
Description
This article explores the Indiana search and seizure laws, and touches on Pirtle Warnings in Indiana.
Publisher Name
Keffer Hirschauer LLP

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