2014 Indiana Code TITLE 35. CRIMINAL LAW AND PROCEDURE ARTICLE 33. PRELIMINARY PROCEEDINGS CHAPTER 5. SEARCH AND SEIZURE
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IC 35-33-5
Chapter 5. Search and Seizure
IC 35-33-5-0.1
Application of certain amendments to chapter
Sec. 0.1. The amendments made to section 5 of this chapter by
P.L.17-2001 apply to all actions of a law enforcement agency taken
after June 30, 2001.
As added by P.L.220-2011, SEC.584.
IC 35-33-5-0.5
Definitions
Sec. 0.5. The following definitions apply throughout this chapter:
(1) "Electronic communication service" means a service that
provides users with the ability to send or receive wire or
electronic communications.
(2) "Electronic storage" means any storage of electronic user
data on a computer, computer network, or computer system
regardless of whether the data is subject to recall, further
manipulation, deletion, or transmission. "Electronic storage"
includes any storage or electronic communication by an
electronic communication service or a remote computing
service.
(3) "Electronic user data" means any data or records that are in
the possession, care, custody, or control of a provider of an
electronic communication service, a remote computing service,
or any other service or program that stores, uses, collects, or
safeguards electronic user data.
(4) "Governmental entity" has the meaning set forth in
IC 35-31.5-2-144. For purposes of this chapter, "governmental
entity" also includes a person authorized to act on behalf of a
state or local agency.
(5) "Intercept" means to acquire geolocation data through the
use of an electronic device, mechanical device, or other device.
(6) "Remote computing service" means the provision to the
public of computer storage or processing services by means of
an electronic communication service.
(7) "Unmanned aerial vehicle" means an aircraft that:
(A) does not carry a human operator; and
(B) is capable of flight under remote control or autonomous
programming.
(8) "Use of an unmanned aerial vehicle" means the use of an
unmanned aerial vehicle by a law enforcement officer to obtain
evidence relevant to the enforcement of statutes, rules, or
regulations. The term includes:
(A) the interception of wire, electronic, or oral
communications; and
(B) the capture, collection, monitoring, or viewing of images.
(9) "User" means any person who:
(A) uses an electronic communication service, remote
computing service, geolocation information service, or an
electronic device; and
(B) may or may not be the person or entity having legal title,
claim, or right to the electronic device or electronic user data.
As added by P.L.170-2014, SEC.16.
IC 35-33-5-1
Issuance by court; probable cause; oath and affirmation; "place"
defined; objects of search
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
Sec. 2. (a) Except as provided in section 8 of this chapter, and
subject to the requirements of section 11 of this chapter, if applicable,
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 sought are concealed there; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts known to the affiant through personal
knowledge or 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.
In accordance with Indiana Trial Rule 11, I affirm under
the penalties for perjury that the foregoing representations
are true.
_______________________________________
(Signed) Affiant Date
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; P.L.170-2014, SEC.17.
IC 35-33-5-3
Form
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
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
Disposition of property held as evidence; records
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 35-47-14-1) 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, 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 the property. 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.1-2006, SEC.527; P.L.151-2006,
SEC.14; P.L.1-2007, SEC.225.
IC 35-33-5-5.1
Repealed
(Repealed by P.L.227-2007, SEC.70.)
IC 35-33-5-6
Dead body; search of building or place; affidavit
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
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 the officer is
not admitted following an announcement of the officer's 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
or superior 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; P.L.201-2011, SEC.111.
IC 35-33-5-8
Issue of warrant without affidavit; types of sworn testimony;
procedures; perjury
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 testimony subject to the penalties for perjury of the same
facts required for an affidavit:
(1) in a nonadversarial, recorded hearing before the judge;
(2) orally by telephone or radio;
(3) in writing by facsimile transmission (FAX); or
(4) in writing by electronic mail or other electronic
transmission.
(b) If a warrant is issued under subsection (a)(1), the judge shall
order the court reporter to type or transcribe the testimony from the
hearing for entry in the record. The judge shall then certify the
transcript.
(c) 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.
(d) After transmitting an affidavit, an applicant for a warrant under
subsection (a)(3) or (a)(4) 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 sign, affix the date and time, and transmit to the applicant a
duplicate of the warrant.
(e) 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.
(f) If a warrant is issued under subsection (a)(3), the facsimile
copy of the affidavit and warrant sent to the judge shall be retained
as if they were the originals. If a warrant is issued under subsection
(a)(4), the electronically transmitted copy of the affidavit and warrant
sent to the judge shall be printed and retained as if they were the
originals.
(g) The court reporter shall notify the applicant who received a
warrant under subsection (a)(1) or (a)(2) when the transcription
required under this section is entered in the record. The applicant
shall sign the transcribed entry upon receiving notice from the court
reporter.
(h) The affiant and the judge may use an electronic signature on
the affidavit and warrant. An electronic signature may be indicated
by "s/Affiant's Name" or "s/Judge's Name" or by any other electronic
means that identifies the affiant or judge and indicates that the affiant
or judge adopts the contents of the document to which the electronic
signature is affixed.
As added by P.L.161-1990, SEC.2. Amended by P.L.170-2014,
SEC.18.
IC 35-33-5-9
Unmanned aerial vehicles; search warrant; exceptions
Sec. 9. (a) Except as provided in subsection (b), a law enforcement
officer must obtain a search warrant in order to use an unmanned
aerial vehicle.
(b) A law enforcement officer or governmental entity may use an
unmanned aerial vehicle without obtaining a search warrant if the law
enforcement officer determines that the use of the unmanned aerial
vehicle:
(1) is required due to:
(A) the existence of exigent circumstances necessitating a
warrantless search;
(B) the substantial likelihood of a terrorist attack;
(C) the need to conduct a search and rescue or recovery
operation;
(D) the need to conduct efforts:
(i) in response to; or
(ii) to mitigate;
the results of a natural disaster or any other disaster; or
(E) the need to perform a geographical, an environmental, or
any other survey for a purpose that is not a criminal justice
purpose; or
(2) will be conducted with the consent of any affected property
owner.
As added by P.L.170-2014, SEC.19.
IC 35-33-5-10
Admissibility of evidence; unmanned aerial vehicles
Sec. 10. The following are not admissible as evidence in an
administrative or judicial proceeding:
(1) A communication or an image that is obtained through the
use of an unmanned aerial vehicle in violation of section 9 of
this chapter.
(2) Evidence derived from a communication or an image
described in subdivision (1).
As added by P.L.170-2014, SEC.20.
IC 35-33-5-11
Electronic user data held in electronic storage
Sec. 11. (a) This subsection does not apply to electronic or video
toll collection facilities or activities authorized under any of the
following:
(1) IC 8-15-2.
(2) IC 8-15-3.
(3) IC 8-15.5.
(4) IC 8-15.7.
(5) IC 8-16.
(6) IC 9-21-3.5.
A law enforcement officer may not compel a user to provide a
passkey, password, or keycode to any electronic communication
service, electronic device, or electronic storage, or any form of stored
electronic user data, without a valid search warrant issued by a judge
using search warrant procedures.
(b) A judge may issue a court order under this section for
electronic user data held in electronic storage, including the records
and information related to a wire communication or electronic
communication held in electronic storage, by a provider of an
electronic communication service or a provider of a remote
computing service regardless of whether the user data is held at a
location in Indiana or at a location in another state.
(c) A judge may issue a court order under this section on a service
provider that is a corporation or entity that is incorporated or
organized under the laws of Indiana or a company or business entity
doing business in Indiana under a contract or terms of a service
agreement with an Indiana resident. The service provider shall
produce all information sought, as required by the court order.
(d) Any Indiana corporation that provides electronic
communication services or remote computing services to the public
shall comply with a valid court order issued in another state that is
seeking the information described in this section, if the court order is
served on the corporation.
As added by P.L.170-2014, SEC.21.
IC 35-33-5-12
Use of real time tracking instruments; geolocation information
Sec. 12. (a) A law enforcement officer or law enforcement agency
may not use a real time tracking instrument that is capable of
obtaining geolocation information concerning a cellular device or a
device connected to a cellular network unless:
(1) the law enforcement officer or law enforcement agency has
obtained an order issued by a court based upon a finding of
probable cause to use the tracking instrument; or
(2) exigent circumstances exist that necessitate using the
tracking instrument without first obtaining a court order.
(b) If a law enforcement officer or law enforcement agency uses
a real time tracking instrument described in subsection (a) based upon
the existence of exigent circumstances, the law enforcement officer
or law enforcement agency shall seek to obtain an order issued by a
court based upon a finding of probable cause not later than
seventy-two (72) hours after the initial use of the real time tracking
instrument.
As added by P.L.170-2014, SEC.22.
IC 35-33-5-13
Immunity from civil or criminal liability
Sec. 13. An electronic communication service, remote computing
service, and geolocation information service are immune from civil
or criminal liability for providing information or evidence as required
by a court order under this chapter.
As added by P.L.170-2014, SEC.23.
IC 35-33-5-14
Notice to news media concerning search warrants
Sec. 14. (a) For purposes of IC 34-46-4 (Journalist's Privilege
Against Disclosure of Information Source) and subject to subsection
(b), if:
(1) a governmental entity requests that a court issue a search
warrant to a provider of:
(A) electronic communication service; or
(B) remote computing service; and
(2) the search warrant seeks information or communications
concerning a news media entity or a person otherwise described
in IC 34-46-4-1;
the news media entity or person described in IC 34-46-4-1 shall be
given reasonable and timely notice of the search warrant request and
shall be given an opportunity to be heard by the court concerning the
issuance of the search warrant before the search warrant is issued.
(b) If:
(1) the search warrant that would be issued to a provider
described in subsection (a)(1) concerns a criminal investigation
in which the news media entity or person described in
IC 34-46-4-1 is a target of the criminal investigation; and
(2) the notice that would be provided to the news media entity
or person described in IC 34-46-4-1 under subsection (a) would
pose a clear and substantial threat to the integrity of the criminal
investigation;
the governmental entity shall certify the threat to the court and notice
of the search warrant shall be given to the news media entity or
person described in IC 34-46-4-1 as soon as the court determines that
the notice no longer poses a clear and substantial threat to the
integrity of the criminal investigation.
As added by P.L.170-2014, SEC.24.
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