IC 35-33-5-1
Issuance by court; probable cause; oath and affirmation;
"place" defined; objects of search
35-33-5-1 Sec. 1. (a) A court may issue warrants only upon
probable cause, supported by oath or affirmation, to search any place
for any of the following:
(1) Property which is obtained unlawfully.
(2) Property, the possession of which is unlawful.
(3) 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.
(4) Property constituting evidence of an offense or tending to
show that a particular person committed an offense.
(5) Any person.
(6) Evidence necessary to enforce statutes enacted to prevent
cruelty to or neglect of children.
(7) A firearm possessed by a person who is dangerous (as
defined in IC 35-47-14-1).
(b) As used in this section, "place" includes any location where
property might be secreted or hidden, including buildings, persons,
or vehicles. As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982,
P.L.204, SEC.10; P.L.187-2005, SEC.1; P.L.1-2006, SEC.526.
IC 35-33-5-2
Affidavit; descriptions; information to establish credibility of
hearsay; form
35-33-5-2 Sec. 2. (a) Except as provided in section 8 of this
chapter, no warrant for search or arrest shall be issued until there is
filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be
searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that
the affiant believes and has good cause to believe that:
(A) the things as are to be searched for are there concealed;
or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or
information based on hearsay, constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) contain reliable information establishing the credibility of
the source and of each of the declarants of the hearsay and
establishing that there is a factual basis for the information
furnished; or
(2) contain information that establishes that the totality of the
circumstances corroborates the hearsay.
(c) An affidavit for search substantially in the following form
shall be treated as sufficient:
STATE OF INDIANA )
) SS:
COUNTY OF ___________________ )
A B swears (or affirms, as the case may be) that he
believes and has good cause to believe (here set forth the
facts and information constituting the probable cause) that
(here describe the things to be searched for and the
offense in relation thereto) are concealed in or about the
(here describe the house or place) of C D, situated in the
county of _____________________, in said state.
Subscribed and sworn to before me this _____ day of
_______ 20__. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.177-1984,
SEC.1; P.L.161-1990, SEC.1; P.L.1-1991, SEC.190; P.L.2-2005,
SEC.117.
IC 35-33-5-3
Form
35-33-5-3 Sec. 3. A search warrant in substantially the following
form shall be sufficient:
STATE OF INDIANA )
) SS:
COUNTY OF _____________ ) IN THE _______ COURT
OF
_____________________
To _______________ (herein insert the name, department or
classification of the law enforcement officer to whom it is addressed)
You are authorized and ordered, in the name of the State of
Indiana, with the necessary and proper assistance to enter into or
upon ________________________ (here describe the place to be
searched), and there diligently search for ________________ (here
describe property which is the subject of the search). You are
ordered to seize such property, or any part thereof, found on such
search.
Dated this ____ day of ______, 20___, at the hour of ___ __M.
_________________________
(Signature of Judge)
Executed this ___ day of ______, 20___, at the hour of ____
___M.
________________________________
(Signature of Law Enforcement Officer)
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.2-2005,
SEC.118.
IC 35-33-5-4
Return; initial disposition of property seized
35-33-5-4 Sec. 4. When the warrant is executed by the seizure of
property or things described in it or of any other items:
(1) The officer who executed the warrant shall make a return on
it directed to the court or judge, who issued the warrant, and
this return must indicate the date and time served and list the
items seized.
(2) The items so seized shall be securely held by the law
enforcement agency whose officer executed the search warrant
under the order of the court trying the cause, except as provided
in section 6 of this chapter. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-5-5 Version a
Disposition of property held as evidence; records
Note: This version of section amended by P.L.1-2006, SEC.527.
See also following version of this section amended by P.L.151-2006,
SEC.14.
35-33-5-5 Sec. 5. (a) All items of property seized by any law
enforcement agency as a result of an arrest, search warrant, or
warrantless search, shall be securely held by the law enforcement
agency under the order of the court trying the cause, except as
provided in this section.
(b) Evidence that consists of property obtained unlawfully from
its owner may be returned by the law enforcement agency to the
owner before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returned
to its rightful owner, if known. If ownership is unknown, a
reasonable attempt shall be made by the law enforcement
agency holding the property to ascertain ownership of the
property. After ninety (90) days from the time:
(A) the rightful owner has been notified to take possession
of the property; or
(B) a reasonable effort has been made to ascertain ownership
of the property;
the law enforcement agency holding the property shall, at such
time as it is convenient, dispose of this property at a public
auction. The proceeds of this property shall be paid into the
county general fund.
(2) Except as provided in subsection (e), property, the
possession of which is unlawful, shall be destroyed by the law
enforcement agency holding it sixty (60) days after final
disposition of the cause.
(3) A firearm that has been seized from a person who is
dangerous (as defined in IC 35-47-14-1) shall be retained,
returned, or disposed of in accordance with IC 35-47-14.
(d) If any property described in subsection (c) was admitted into
evidence in the cause, the property shall be disposed of in accordance
with an order of the court trying the cause.
(e) A law enforcement agency may destroy or cause to be
destroyed chemicals or controlled substances associated with the
illegal manufacture of drugs or controlled substances without a court
order if all the following conditions are met:
(1) The law enforcement agency collects and preserves a
sufficient quantity of the chemicals or controlled substances to
demonstrate that the chemicals or controlled substances were
associated with the illegal manufacture of drugs or controlled
substances.
(2) The law enforcement agency takes photographs of the
illegal drug manufacturing site that accurately depict the
presence and quantity of chemicals and controlled substances.
(3) The law enforcement agency completes a chemical
inventory report that describes the type and quantities of
chemicals and controlled substances present at the illegal
manufacturing site.
The photographs and description of the property shall be admissible
into evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction on
appeal, a photograph demonstrating the nature of the property, and
an adequate description of the property must be obtained before the
disposition of it. In the event of a retrial, the photograph and
description of the property shall be admissible into evidence in place
of the actual physical evidence. All other rules of law governing the
admissibility of evidence shall apply to the photographs.
(g) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), or (e) shall maintain certified
records of any such disposition. Disposition by destruction of
property shall be witnessed by two (2) persons who shall also attest
to the destruction.
(h) This section does not affect the procedure for the disposition
of firearms seized by a law enforcement agency.
(i) A law enforcement agency that disposes of property by auction
under this section shall permanently stamp or otherwise permanently
identify the property as property sold by the law enforcement agency.
(j) Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the perfected
liens or other security interests of any person in the property, to the
appropriate federal authority for disposition under 18 U.S.C. 981(e),
19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations
adopted by the United States Department of Justice. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.320-1983,
SEC.6; P.L.294-1989, SEC.1; P.L.174-1999, SEC.2; P.L.17-2001,
SEC.11; P.L.187-2005, SEC.2; P.L.1-2006, SEC.527.
IC 35-33-5-5 Version b
Disposition of property held as evidence; records
Note: This version of section amended by P.L.151-2006, SEC.14.
See also preceding version of this section amended by P.L.1-2006,
SEC.527.
35-33-5-5 Sec. 5. (a) All items of property seized by any law
enforcement agency as a result of an arrest, search warrant, or
warrantless search, shall be securely held by the law enforcement
agency under the order of the court trying the cause, except as
provided in this section.
(b) Evidence that consists of property obtained unlawfully from
its owner may be returned by the law enforcement agency to the
owner before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returned
to its rightful owner, if known. If ownership is unknown, a
reasonable attempt shall be made by the law enforcement
agency holding the property to ascertain ownership of the
property. After ninety (90) days from the time:
(A) the rightful owner has been notified to take possession
of the property; or
(B) a reasonable effort has been made to ascertain ownership
of the property;
the law enforcement agency holding the property shall, at a
convenient time, dispose of this property at a public auction.
The proceeds of this property shall be paid into the county
general fund.
(2) Except as provided in subsection (e), property, the
possession of which is unlawful, shall be destroyed by the law
enforcement agency holding it sixty (60) days after final
disposition of the cause.
(3) A firearm that has been seized from a person who is
dangerous (as defined in IC 35-47-13-1) shall be retained,
returned, or disposed of in accordance with IC 35-47-13.
(d) If any property described in subsection (c) was admitted into
evidence in the cause, the property shall be disposed of in accordance
with an order of the court trying the cause.
(e) A law enforcement agency may destroy or cause to be
destroyed chemicals, controlled substances, or chemically
contaminated equipment (including drug paraphernalia as described
in IC 35-48-4-8.5) associated with the illegal manufacture of drugs
or controlled substances without a court order if all the following
conditions are met:
(1) The law enforcement agency collects and preserves a
sufficient quantity of the chemicals, controlled substances, or
chemically contaminated equipment to demonstrate that the
chemicals, controlled substances, or chemically contaminated
equipment was associated with the illegal manufacture of drugs
or controlled substances.
(2) The law enforcement agency takes photographs of the
illegal drug manufacturing site that accurately depict the
presence and quantity of chemicals, controlled substances, and
chemically contaminated equipment.
(3) The law enforcement agency completes a chemical
inventory report that describes the type and quantities of
chemicals, controlled substances, and chemically contaminated
equipment present at the illegal manufacturing site.
The photographs and description of the property shall be admissible
into evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction on
appeal, a photograph demonstrating the nature of the property, and
an adequate description of the property must be obtained before the
disposition of it. In the event of a retrial, the photograph and
description of the property shall be admissible into evidence in place
of the actual physical evidence. All other rules of law governing the
admissibility of evidence shall apply to the photographs.
(g) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), or (e) shall maintain certified
records of any disposition under subsection (b), (c), or (e).
Disposition by destruction of property shall be witnessed by two (2)
persons who shall also attest to the destruction.
(h) This section does not affect the procedure for the disposition
of firearms seized by a law enforcement agency.
(i) A law enforcement agency that disposes of property by auction
under this section shall permanently stamp or otherwise permanently
identify the property as property sold by the law enforcement agency.
(j) Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the perfected
liens or other security interests of any person in the property, to the
appropriate federal authority for disposition under 18 U.S.C. 981(e),
19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations
adopted by the United States Department of Justice. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.320-1983,
SEC.6; P.L.294-1989, SEC.1; P.L.174-1999, SEC.2; P.L.17-2001,
SEC.11; P.L.187-2005, SEC.2; P.L.151-2006, SEC.14.
IC 35-33-5-5.1
Gambling devices seized; return to owner
35-33-5-5.1 Sec. 5.1. Notwithstanding section 5 of this chapter, if:
(1) property alleged to be a gambling device:
(A) was seized by a law enforcement agency; and
(B) has been in the custody of a law enforcement agency for
more than one (1) year;
(2) no criminal charges have been filed for which the property
is necessary as evidence; and
(3) the owner of the property requests in writing that it be
returned;
the property shall be promptly returned to the owner. As added by P.L.321-1983, SEC.1.
IC 35-33-5-6
Dead body; search of building or place; affidavit
35-33-5-6 Sec. 6. When an affidavit is filed before a judge
alleging that the affiant has good reasons to believe, and does
believe, that a dead human body is illegally secreted in a certain
building, or other particularly specified place in the county, the judge
may issue a search warrant authorizing a law enforcement officer to
enter and search the building or other place for the dead body. While
making the search, the law enforcement officer shall have the power
of an officer executing a regular search warrant. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-5-7
Execution of search warrant; forcible entry; wrongful entry;
recovery of damages
35-33-5-7 Sec. 7. (a) A search warrant issued by a court of record
may be executed according to its terms anywhere in the state. A
search warrant issued by a court that is not a court of record may be
executed according to its terms anywhere in the county of the issuing
court.
(b) A search warrant must be:
(1) executed not more than ten (10) days after the date of
issuance; and
(2) returned to the court without unnecessary delay after the
execution.
(c) A search warrant may be executed:
(1) on any day of the week; and
(2) at any time of the day or night.
(d) A law enforcement officer may break open any outer or inner
door or window in order to execute a search warrant, if he is not
admitted following an announcement of his authority and purpose.
(e) A person or persons whose property is wrongfully damaged or
whose person is wrongfully injured by any law enforcement officer
or officers who wrongfully enter may recover such damage from the
responsible authority and the law enforcement officer or officers as
the court may determine. The action may be filed in the circuit court,
superior court or county court in the county where the wrongful entry
took place. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.320-1983,
SEC.7.
IC 35-33-5-8
Issue of warrant without affidavit; types of sworn testimony;
procedures; perjury
35-33-5-8 Sec. 8. (a) A judge may issue a search or arrest warrant
without the affidavit required under section 2 of this chapter, if the
judge receives sworn testimony of the same facts required for an
affidavit:
(1) in a nonadversarial, recorded hearing before the judge;
(2) orally by telephone or radio; or
(3) in writing by facsimile transmission (FAX).
(b) After reciting the facts required for an affidavit and verifying
the facts recited under penalty of perjury, an applicant for a warrant
under subsection (a)(2) shall read to the judge from a warrant form
on which the applicant enters the information read by the applicant
to the judge. The judge may direct the applicant to modify the
warrant. If the judge agrees to issue the warrant, the judge shall
direct the applicant to sign the judge's name to the warrant, adding
the time of the issuance of the warrant.
(c) After transmitting an affidavit, an applicant for a warrant
under subsection (a)(3) shall transmit to the judge a copy of a
warrant form completed by the applicant. The judge may modify the
transmitted warrant. If the judge agrees to issue the warrant, the
judge shall transmit to the applicant a duplicate of the warrant. The
judge shall then sign the warrant retained by the judge, adding the
time of the issuance of the warrant.
(d) If a warrant is issued under subsection (a)(2), the judge shall
record the conversation on audio tape and order the court reporter to
type or transcribe the recording for entry in the record. The judge
shall certify the audio tape, the transcription, and the warrant
retained by the judge for entry in the record.
(e) If a warrant is issued under subsection (a)(3), the judge shall
order the court reporter to the retype or copy the facsimile
transmission for entry in the record. The judge shall certify the
transcription or copy and warrant retained by the judge for entry in
the record.
(f) The court reporter shall notify the applicant who received a
warrant under subsection (a)(2) or (a)(3) when the transcription or
copy required under this section is entered in the record. The
applicant shall sign the typed, transcribed, or copied entry upon
receiving notice from the court reporter. As added by P.L.161-1990, SEC.2.
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