CHAPTER 2. APPLICATIONS, PROCEDURES, AND REPORTS
IC 35-33.5-2
Chapter 2. Applications, Procedures, and Reports
IC 35-33.5-2-1
Application for warrant by prosecuting or designated deputyprosecuting attorney; coapplicant; interception equipment undercontrol of state police; reimbursement to state police
Sec. 1. (a) A prosecuting attorney or, if the prosecuting attorneyis unavailable, a chief deputy prosecuting attorney specificallyauthorized by the prosecuting attorney, may submit an application fora warrant or an extension to a circuit or superior court where:
(1) the county that the prosecuting attorney represents islocated; and
(2) the communication subject to the warrant is anticipated tobe sent or received.
The prosecuting attorney or authorized chief deputy prosecutingattorney may not delegate the responsibility of applying for a warrantor an extension to another deputy prosecuting attorney.
(b) One (1) of the following persons must serve as a coapplicantfor a warrant or an extension under subsection (a):
(1) The superintendent of the state police department.
(2) The police chief of a consolidated city where thecommunication subject to the warrant is anticipated to be sentor received.
(3) The sheriff of the county containing a consolidated citywhere the communication subject to the warrant is anticipatedto be sent or received.
(c) Only the state police department may install equipment usedto intercept an electronic communication under this chapter.
(d) The state police department may:
(1) operate or monitor equipment used to intercept an electroniccommunication; or
(2) if the interception of an electronic communication isperformed on behalf of another law enforcement agency, permitthe law enforcement agency to operate or monitor theequipment under the supervision of the department.
(e) The superintendent of the state police department mayterminate an interception under this chapter if the superintendent ofthe state police department determines that there is probable cause tobelieve that the allegations concerning the offense that are the basisof the interception are without merit. If an interception of anelectronic communication is terminated under this subsection, thelaw enforcement agency that is the co-applicant for the interceptionshall reimburse the state police department for the department'sexpenses incurred in connection with the application for interception,including the costs of removing equipment related to theinterception.
(f) If the interception of an electronic communication isperformed on behalf of another law enforcement agency, the lawenforcement agency shall reimburse the department for the
department's expenses in connection with the installation, operation,and maintenance of equipment used to intercept an electroniccommunication.
As added by P.L.161-1990, SEC.3. Amended by P.L.105-2007,SEC.6.
IC 35-33.5-2-2
Application or extension in writing and upon oath of affirmation;information required
Sec. 2. (a) Except as provided in section 3.5 of this chapter, anapplication for a warrant or extension must be made in writing andupon oath or affirmation. Each application must also include thefollowing:
(1) The identity of the persons submitting the application.
(2) An affidavit setting forth the facts relied upon by anapplicant to show why a warrant should be issued or anextension granted, including the following:
(A) Facts establishing probable cause for the belief that adesignated offense allegedly has been, is being, or may becommitted.
(B) A description of the nature and location of the facility,place, or device from which the communication is to beintercepted.
(C) The identity, if known, of the person allegedlycommitting the designated offense whose communication isto be intercepted.
(D) A description of the type of communication to beintercepted.
(3) A statement specifying that other investigative procedures:
(A) have been tried and failed; or
(B) may not succeed or are too dangerous to attempt.
(4) A statement of the duration necessary for the interception.However, if the applicant requests that the authorization forinterception not automatically terminate once the described typeof communication is initially obtained, the application must alsoinclude a description of facts supporting the belief thatadditional communications of the same type will occur.
(5) A statement of facts and any action taken by the courtconcerning any previous application for a warrant or anextension that:
(A) has been made to a court under this article;
(B) sought to obtain communications from any of the samepersons, places, or facilities as the current application; and
(C) is known to exist by the persons making the currentapplication.
(6) If it is reasonably necessary to make a secret entry uponprivate property to install an interception device, a statementdescribing the following:
(A) The private property.
(B) Who owns and who occupies the private property. (C) The reasons necessitating secret entry.
(b) In addition to the information required in subsection (a), if anapplication is for an extension, the application must contain astatement setting forth the results obtained from the original warrantor a reasonable explanation of the failure to obtain results under theoriginal warrant.
(c) The court may require an applicant to furnish additionaltestimony or evidence in support of an application.
As added by P.L.161-1990, SEC.3. Amended by P.L.105-2007,SEC.7.
IC 35-33.5-2-3
Allegations of fact; basis; information required; supportingaffidavits
Sec. 3. (a) Allegations of fact in an application for a warrantsubmitted under this chapter may be based either upon the personalknowledge of the applicant or upon information and belief.
(b) If the applicant personally knows the facts alleged, theapplicant shall state that the affidavit is based upon personalknowledge.
(c) If the allegations of fact are derived in whole or in part fromthe statements of persons other than the applicant:
(1) the sources of the applicant's information and belief must beeither disclosed or described;
(2) the application must contain facts establishing the existenceand reliability of:
(A) any informant; and
(B) information supplied by any informant; and
(3) the basis of an informant's knowledge or belief must bedisclosed, as far as possible.
(d) If the applicant's information and belief is derived from:
(1) tangible evidence; or
(2) recorded oral evidence;
the applicant shall attach to the application a copy or detaileddescription of the tangible evidence or recorded oral evidence.
(e) Affidavits of persons other than the applicant may be attachedto the application if the affidavits of other persons tend to supportany fact or conclusion alleged in the application. An affidavitattached to the application under this subsection may be based eitheron personal knowledge of the affiant or on information and belief.However, if the attached affidavit is based on information and beliefthe affiant shall state the source of, and the reason for, theinformation and belief.
As added by P.L.161-1990, SEC.3.
IC 35-33.5-2-3.5
Alternative procedure for issuance of warrant; requirement forrecording and transcription
Sec. 3.5. (a) A court may issue a warrant without the affidavitrequired under section 2 of this chapter, if the court 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 (fax) transmission.
In addition, the prosecuting attorney or, if the prosecuting attorneyis unavailable, a chief deputy prosecuting attorney specificallyauthorized by the prosecuting attorney, shall inform the court that aperson described in section 1(b) of this chapter has agreed to serveas a coapplicant of the warrant. The prosecuting attorney orauthorized chief deputy prosecuting attorney may not delegate theresponsibility of applying for a warrant to another deputy prosecutingattorney.
(b) After the affiant recites the facts required for an affidavit andverifies the facts recited under penalty of perjury, a prosecutingattorney or chief deputy prosecuting attorney who applies for awarrant under subsection (a)(2) shall read to the court from a warrantform on which the prosecuting attorney or chief deputy prosecutingattorney enters the information read by the affiant to the court. Thecourt may direct the prosecuting attorney or chief deputy prosecutingattorney to modify the warrant. If the court agrees to issue thewarrant, the court shall direct the prosecuting attorney or chiefdeputy prosecuting attorney to sign the judge's name to the warrant,adding the time of the issuance of the warrant.
(c) After transmitting an affidavit, a prosecuting attorney or chiefdeputy prosecuting attorney who applies for a warrant undersubsection (a)(3) shall transmit to the court a copy of a warrant formcompleted by the prosecuting attorney or chief deputy prosecutingattorney. The court may modify the transmitted warrant. If the courtagrees to issue the warrant, the court shall transmit to the applicanta duplicate of the warrant. The judge shall then sign the warrantretained by the court, adding the time of the issuance of the warrant.
(d) If a warrant is issued under subsection (a)(2), the court shallrecord the conversation and order the court reporter to type ortranscribe the recording for entry in the record. The court shallcertify the recording, the transcription, and the warrant retained bythe court for entry in the record.
(e) If a warrant is issued under subsection (a)(3), the court shallorder the court reporter to retype or copy the facsimile transmissionfor entry in the record. The court shall certify the transcription orcopy and warrant retained by the court for entry in the record.
(f) The court reporter shall notify the prosecuting attorney or chiefdeputy prosecuting attorney who received a warrant under subsection(a)(2) or (a)(3) when the transcription or copy required under thissection is entered in the record. The prosecuting attorney or chiefdeputy prosecuting attorney shall sign the typed, transcribed, orcopied entry upon receiving notice from the court reporter.
As added by P.L.105-2007, SEC.8.
IC 35-33.5-2-4
Reports to legislative council on warrants or extensions granted;
reports on arrests or convictions
Sec. 4. (a) Not later than December 31 of each year, a prosecutingattorney who during that year:
(1) has received a warrant or an extension; or
(2) represents a county in which an arrest or a conviction hasoccurred as the result of the warrant or extension;
shall report in an electronic format under IC 5-14-6 the informationdescribed in subsection (b) to the legislative council.
(b) A prosecuting attorney shall report the following informationunder subsection (a):
(1) The information required in section 5 of this chapter.
(2) The number of arrests resulting from an interception madeunder a warrant or extension and the designated offense forwhich each arrest was made.
(3) The number of charges filed as a result of an interception.
(4) The number of motions to suppress made with respect to aninterception and the number of motions granted or denied.
(5) The number of convictions resulting from an interception,the designated offense for which each conviction was obtained,and a general assessment of the importance of interception inobtaining the convictions.
(6) A general description of the interceptions made under awarrant or an extension, including the following:
(A) The approximate nature and frequency of incriminatingcommunications intercepted.
(B) The approximate nature and frequency of othercommunications intercepted.
(C) The approximate number of persons whosecommunications were intercepted.
(D) The approximate nature, amount, and cost of manpowerand other resources used in relation to the interceptions.
As added by P.L.161-1990, SEC.3. Amended by P.L.28-2004,SEC.176.
IC 35-33.5-2-5
Reports to executive director of division of state courtadministration on terminations and denials
Sec. 5. Within twenty-eight (28) days after the termination of awarrant or an extension, or the denial of an application for a warrantor an extension, the court to which application for the warrant or anextension was made shall submit a report to the executive director ofthe division of state court administration (IC 33-24-6-1) containingthe following information:
(1) The fact that a warrant or an extension was applied for.
(2) The type of warrant or extension applied for.
(3) The fact that the application for a warrant or an extensionwas granted, modified, or denied.
(4) The duration authorized for interception by the warrant andthe number and duration of any extensions.
(5) The designated offense for which the warrant or extension
was issued or applied for.
(6) The identity of the persons who applied for the warrant orextension.
(7) The nature and location of the place, facility, or device fromwhich communications were to be intercepted.
(8) The reasons for withholding notice under IC 35-33.5-4-3, ifthe notice was withheld.
As added by P.L.161-1990, SEC.3. Amended by P.L.98-2004,SEC.142; P.L.105-2007, SEC.9.