Indiana Search Warrant Laws
There is hardly anything more stressful than the sound of the police knocking at your door with a search warrant in hand. Therefore, it’s critical to understand Indiana search warrant laws and how they apply in light of your Fourth Amendment right to be free from unreasonable searches and seizures. This information will allow you to better assess and understand how the police obtained the search warrant.
If you have been subject to a search warrant, criminal charges may be forthcoming. To secure an optimal outcome in this situation, you need to act as soon as possible 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 justice system in Indiana. They both are truly invested in the work they do, as is our entire criminal defense team. Set up a free consultation with a criminal defense attorney today or give us a call at 317-751-7186.
What is a Search Warrant in Indiana?
An Indiana search warrant is an order that gives police the authority to enter your property (home, land, office, vehicle, etc.), or search your person, without your consent to search for evidence of a crime. Search warrants are obtained when police present a judge with an affidavit (written statement), who then decides whether probable cause has been properly established within the affidavit. If so, they will likely grant the order for a search warrant.
As stated in Indiana Code 35-33-5-1, Indiana search warrant law only allows police officers to obtain a warrant when searching for:
- Property that is obtained unlawfully
- Property, the possession of which is unlawful
- Property used or possessed with intent to be used as the means of committing an offense or concealed to prevent an offense from being discovered
- Property constituting evidence of an offense or tending to show that a particular person committed an offense
- Any person
- Evidence necessary to enforce statutes enacted to prevent cruelty to or neglect of children
- A firearm possessed by a person who is dangerous (as defined in Indiana Code 35-47-14-1)
Indiana Search Warrant Laws: The Affidavit
The affidavit that law enforcement presents to a judge must paint a complete picture of which property law enforcement wants to search, what they are looking for, why they are looking for it, and why they believe it is in the specified location. By clearly answering all of these questions, a judge can make a proper determination on whether there is “probable cause” to execute a search warrant.
Per Indiana Code 35-33-5-2(3), the affidavit must explicitly contain these items:
- The house or place to be searched, and the things to be searched for
- The criminal offense(s) that relates to the search
- Belief and good cause of the affiant (requesting party) that the things sought are at the location requested
- The facts known to the affiant 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 in Indiana
The Indiana search warrant laws, outlined in Indiana Code 35-33-5-7, stipulate that once a search warrant is issued by a judge it must be executed “not more than 10 days after the date of issuance; and returned to the court without unnecessary delay after the execution.” However, search warrants in Indiana can be executed on any day of the week, and at any time of the day.
When executing a search warrant (entering your property), police are required to knock on the door and announce their authority and purpose. However, this requirement can be waived by a judge’s order or in situations where police officers are concerned for either their safety or the preservation of the evidence they seek to obtain. In instances when the police have knocked and announced their authority and purpose, but are not admitted into the home, they are within their legal rights to break open any door or window to enter the property.
Once the police have entered the location listed on the Indiana search warrant, their search of the premises and seizure of property is limited to the areas and property items listed on the warrant. However, there is an exception to this rule. It is called the “plain view doctrine,” and it allows for police to 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 example, if a warrant permits the police to search your office for documents related to a criminal matter, and they find drugs on your desk while in the office, they can legally seize the drugs and you may be charged with a further crime because of their discovery.
Indiana Search Warrant Laws on Seized Property
Following the execution of the warrant, the Indiana search warrant laws in Indiana Code 35-33-5-4 require that the officer who executed the warrant provide the issuing court or judge with a return document indicating the date/time of execution and a list of all items seized. The officer must also transfer the seized items to the law enforcement agency they serve to be held securely for the duration of the investigation.
Under several circumstances, property seized during the execution of a search warrant may be returned to its owner. These circumstances, listed in Indiana Code 25-33-5-5 include:
- Evidence consisting of property obtained unlawfully may be returned to its owner before trial
- Following the final determination on a criminal charge by the trial court, property that may 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.
Warrantless Searches in Indiana
Prior to searching one’s property, law enforcement officers are strongly encouraged, when practical, to submit a written affidavit, or another legal request as outlined in Indiana Code 35-33-5-8, seeking issuance of an Indiana search warrant. However, warrantless searches can occur in some situations if the officer is in a place that they are legally entitled to be.
Indiana search warrant laws allow for warrantless searches to take place in situations where an officer, without further intrusion, observes contraband or something apparent to evidence in plain view. This observation can be made with any of the senses, including view, smell, touch, or hearing.
Furthermore, observations made by officers in an open field do not require a search warrant. Open fields, however, must be distinguished from any buildings located in the field or the area surrounding structures where a person may have a reasonable expectation of privacy. Observations made by aerial surveillance conducted in public air space over private property may also fall under plain view.
Finally, abandoned property and trash are not protected by the fourth amendment. However, the Indiana Supreme Court held in Litchfield v. State that investigating officers must have an articulable basis justifying reasonable suspicion the subjects of the search have engaged in criminal offenses that may reasonably lead them to evidence on the abandoned property or in the trash.
When a motor vehicle is taken into custody or impounded, an officer shall examine and take inventory of all its contents. This includes items in accessible containers that cannot be ascertained by the container’s exterior; locked areas of the vehicle or locked containers if access can be gained without damage.
Exigent circumstances are ones that require a police officer to act immediately. This may include situations where the officer feels that they or others are in immediate danger of bodily harm or death; to prevent the destruction of evidence; or amid pursuit of a fleeing subject.
Search Incident to a Lawful Arrest
When a person is placed under arrest, police can search the person, as well as any containers found on them. This search can extend to the area under the immediate control (such as the area a person has to grab a gun) of the arrestee, including any accessible containers found in their immediate area.
When a person is arrested in a motor vehicle, the officer may search the passenger compartment without a warrant to prevent the person from gaining possession of a firearm or destroying relevant evidence. However, this can only occur when the arrestee is not secured and within reachable distance of the compartment; or when the officer believes that evidence relevant to the crime the person was arrested for may be found in the vehicle.
In situations where a person is arrested at home, an officer is within their legal right to make a sweep of the home, if they believe that there might be other persons in the home that pose a threat to the officer or others.
If desired, a person may consent to a search by law enforcement, however, an officer must be able to prove that the person did indeed freely and voluntarily provide consent. When a person is in custody, the officer must advise them of their right to counsel prior to being asked to consent to a search. If consent is given, the officer must document the person’s consent in writing, using the Department Consent to search form. If the person is NOT in custody, written consent is not required.
If an officer stops a motor vehicle and has probable cause to believe that the vehicle contains contraband, it can be searched without a warrant provided that it is in the exact location where the stop took place. The search can extend to any part of the vehicle where the officer has probable cause to believe that contraband may be located – including the trunk, the glovebox, or containers/packages found in the vehicle.
Stop and Frisk
When an officer observes someone acting in a manner that leads them to conclude that criminal activity may be occurring and the person may be armed and/or dangerous, the officer may stop the person. Furthermore, the officer is within their legal right to ask the person for identification and inquire about their activities. That person may be detained for a brief period to allow for investigation, provided that the investigation does not extend beyond the place where the person was first stopped. If the officer believes that the person may be armed and dangerous, they are able to frisk them for weapons.
Police officers can take part in an administrative search that is specifically authorized by statute. This may include situations like searches in a public, government, or medical facility or any property authorized in statute.
Further Questions about Indiana Search Warrant Laws?
If you are under investigation, have been raided by police using an Indiana search warrant, or anticipate that you may be raided, you’ll need to find a high-quality, dedicated criminal defense attorney to help protect you. The criminal defense team at Keffer Hirschauer LLP is led by two former deputy prosecutors who are now fighting for you. We utilize effective and aggressive defense strategies to minimize your criminal penalties and protect your rights. Our driven, experienced trial attorneys are available to speak with you today. Call us at 317-751-7186 or schedule a risk-free case consultation online.