Search and Seizure Jennifer Haley Staff Attorney Indiana

Search and Seizure Jennifer Haley, Staff Attorney Indiana Prosecuting Attorneys Council 1

DO I NEED A SEARCH WARRANT? If in doubt – tell the police to get one! 2

Legal Provisions 4 th Amendment Ind. Const. Art. I, Sec. 11

4 th Amendment - 3 Questions Is it a seizure? Does it apply? Is it a search?

Does the 4 th Amendment Apply? What are Papers Persons Houses & Effects

What can you search for? I. C. 35 -33 -5 -1(a) Unlawfully obtained property Unlawfully possessed property Property used in a crime Property that is evidence of a crime

What can you search for? I. C. 35 -33 -5 -1(a) Any person Evidence of cruelty or neglect of children Firearm possessed by dangerous person

Other things you can search for… Dead bodies – I. C. 35 -33 -5 -6 Fish and wildlife violations Vehicle parts – salvage laws

4 th Amendment - 3 Questions Is it a seizure? Does it apply? Is it a search?

Getting the Search Warrant Affidavit • I. C. 35 -55 -5 -2 Sworn • I. C. 35 -33 -5 -8 testimony

Indiana Code 35 -33 -5 -2 I. C. 35 -33 -5 -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:

Indiana Code 35 -33 -5 -2 (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; 12

Indiana Code 35 -33 -5 -2 (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 13

Contents of a Search Warrant Heading Detective Training Inferences Investigation - PC The Request Signatures

Requirements of a Search Warrant Probable Cause Description of Location Description of Person Description of Property Evidence/Person Tied to Location

Probable Cause Item searched for is probably in place to be searched 16

Source of Information for PC Probable Cause Knowledge of Affiant Hearsay Information

Collective Knowledge Of Law Enforcement Knowledge of other officers can be imputed to officer signing affidavit

I. C. 35 -33 -5 -2(b) When based on hearsay, the affidavit must either: (1) contain reliable hearsay information establishing the credibility of the source 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 19

Totality of the Circumstances Reliability Basis of Knowledge Veracity Totality

Hearsay Cooperative citizens Crime victims Professional or Anonymous Tipsters Eyewitnesses

Cooperative Citizens Presumed reliable Unless circumstances cast suspicion

Professional Informants & Anonymous Tipsters You must establish reliability!

Establishing Reliability Hearsay Police corroboration Track record Basis for knowledge Prediction of conduct

Track Record How much info? Outcome of info?

Caution! Crime Victims Eyewitnesses Professional Informants

Examples: q. Mother - Father - Sibling q. Teacher - Social Worker - Babysitter q. Delivery Person - Repair Man q. Neighbor - Friend q. Girlfriend - Boyfriend q. EX-Girlfriend q. Baby’s Mama 27

What If Your Facts Change? Issue material? Advise judge Update warrant

If evidence that false statement was knowingly and intentionally OR with reckless disregard for the truth included in the affidavit. . . IT MUST BE SET ASIDE If remaining content is insufficient to establish probable cause… 29

Description of Location House number and street Description good Attach photo Specify subunits

Description of Property Sought Particularly describe Exact description not necessary Unbridled discretion void

Description of Person Sought Proper name usually sufficient Physical description may be needed

Tied to the Location Person Property Location

Judge’s Signature Methods In person Telephone Fax Any court of record in the state Must leave copy with the Judge Email

When Execute? I. C. 35 -33 -5 -7 Not more Any time than 10 Any day of of the days after the week or night issuance

Be Careful You may not have 10 days to execute search warrant 36

Staleness Stale information will not support warrant • No precise rule on time…. Factors to consider • Passage of time • Nature of the criminal activity • Kind of property sought

If your Warrant Goes Stale Must add “fresh” PC Why will the contraband still be there? How do you know it is still there?

Serving the Warrant Knock & Announce I. C. 35 -33 -5 -7(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

Exception to Knock & Announce Those inside are made aware Trying to escape or destroy evidence

Scope of the Search Yard Curtilage Residence Outbuildings Other Structures

Good Faith Exception Reasonable good faith belief Sole purpose is to deter violations

Arresting Suspect In Home • Arrest warrant In own home • Belief he is there In 3 rd person’s home • Need arrest warrant • Need search warrant

Arrest Warrant Authority to enter Search where people may be Stop and get search warrant if needed

WARRANTLESS SEARCHES

Warrantless Searches Presumed unreasonable State bears burden of proof to show exception

Plain View PC to get a warrant Legal right to be there Immediately apparent

Enhancements Not a search

Open Fields Areas outside curtilage Not subject to 4 th Fields, woods, brush, water

Plain Hearing Legal right to be there Overhearing conversation Not a search

Plain Smell Provides PC Legal right to be there Not a search

Canines During Traffic Stop Not search • Stop must not be extended beyond time needed Need • Necessary to prolong the reasonable stop suspicion

Canine Sniffs at Residence Curtilage of residence IS a search Requires Warrant

Plain Feel Lawful seizure Lawful patdown Immediately apparent

Abandonment of Property Voluntary Abandonment No Expectation of Privacy Not Caused by Illegal Police Conduct

Trash Pulls Litchfield v. State, 824 N. E. 2 d 356 (Ind. 2005) Recover from normal place Recover in Need same reasonable manner suspicion

Consent Voluntary? Limited Scope Pirtle rights? “Knock and Talks”

Exigent Circumstances Still Need PC Risk of bodily injury or death Aid person in need of assistance Protect private property Destruction of evidence

Automobile Searches Still Need PC Inherent mobility of vehicle If PC is for container, Can search can’t search all containers entire vehicle

4 th Amendment - 3 Questions Is it a seizure? Does it apply? Is it a search?

A seizure occurs when: Show of force or authority Submission – voluntary or involuntary