CHAPTER 5. SEARCH AND SEIZURE
IC 35-33-5
Chapter 5. Search and Seizure
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 thefollowing:
(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 themeans of committing an offense or concealed to prevent anoffense from being discovered.
(4) Property constituting evidence of an offense or tending toshow that a particular person committed an offense.
(5) Any person.
(6) Evidence necessary to enforce statutes enacted to preventcruelty to or neglect of children.
(7) A firearm possessed by a person who is dangerous (asdefined in IC 35-47-14-1).
(b) As used in this section, "place" includes any location whereproperty 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 ofhearsay; form
Sec. 2. (a) Except as provided in section 8 of this chapter, nowarrant for search or arrest shall be issued until there is filed with thejudge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to besearched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and thatthe 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 orinformation based on hearsay, constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) contain reliable information establishing the credibility ofthe source and of each of the declarants of the hearsay andestablishing that there is a factual basis for the informationfurnished; or
(2) contain information that establishes that the totality of the
circumstances corroborates the hearsay.
(c) An affidavit for search substantially in the following formshall be treated as sufficient:
STATE OF INDIANA )
) SS:
COUNTY OF ___________________ )
A B swears (or affirms, as the case may be) that hebelieves and has good cause to believe (here set forth thefacts and information constituting the probable cause) that(here describe the things to be searched for and theoffense in relation thereto) are concealed in or about the(here describe the house or place) of C D, situated in thecounty 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
Sec. 3. A search warrant in substantially the following form shallbe sufficient:
STATE OF INDIANA )
) SS:
COUNTY OF _____________ ) IN THE _______ COURT
OF
_____________________
To _______________ (herein insert the name, department orclassification of the law enforcement officer to whom it is addressed)
You are authorized and ordered, in the name of the State ofIndiana, with the necessary and proper assistance to enter into orupon ________________________ (here describe the place to besearched), and there diligently search for ________________ (heredescribe property which is the subject of the search). You areordered to seize such property, or any part thereof, found on suchsearch.
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 onit directed to the court or judge, who issued the warrant, andthis return must indicate the date and time served and list theitems seized.
(2) The items so seized shall be securely held by the lawenforcement agency whose officer executed the search warrantunder the order of the court trying the cause, except as providedin 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 enforcementagency as a result of an arrest, search warrant, or warrantless search,shall be securely held by the law enforcement agency under the orderof the court trying the cause, except as provided in this section.
(b) Evidence that consists of property obtained unlawfully fromits owner may be returned by the law enforcement agency to theowner before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or anyother final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returnedto its rightful owner, if known. If ownership is unknown, areasonable attempt shall be made by the law enforcementagency holding the property to ascertain ownership of theproperty. After ninety (90) days from the time:
(A) the rightful owner has been notified to take possessionof the property; or
(B) a reasonable effort has been made to ascertain ownershipof the property;
the law enforcement agency holding the property shall, at aconvenient time, dispose of this property at a public auction.The proceeds of this property shall be paid into the countygeneral fund.
(2) Except as provided in subsection (e), property, thepossession of which is unlawful, shall be destroyed by the lawenforcement agency holding it sixty (60) days after finaldisposition of the cause.
(3) A firearm that has been seized from a person who isdangerous (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 intoevidence in the cause, the property shall be disposed of in accordancewith an order of the court trying the cause.
(e) A law enforcement agency may destroy or cause to bedestroyed chemicals, controlled substances, or chemicallycontaminated equipment (including drug paraphernalia as describedin IC 35-48-4-8.5) associated with the illegal manufacture of drugsor controlled substances without a court order if all the following
conditions are met:
(1) The law enforcement agency collects and preserves asufficient quantity of the chemicals, controlled substances, orchemically contaminated equipment to demonstrate that thechemicals, controlled substances, or chemically contaminatedequipment was associated with the illegal manufacture of drugsor controlled substances.
(2) The law enforcement agency takes photographs of theillegal drug manufacturing site that accurately depict thepresence and quantity of chemicals, controlled substances, andchemically contaminated equipment.
(3) The law enforcement agency completes a chemicalinventory report that describes the type and quantities ofchemicals, controlled substances, and chemically contaminatedequipment present at the illegal manufacturing site.
The photographs and description of the property shall be admissibleinto evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction onappeal, a photograph demonstrating the nature of the property, andan adequate description of the property must be obtained before thedisposition of the property. In the event of a retrial, the photographand description of the property shall be admissible into evidence inplace of the actual physical evidence. All other rules of lawgoverning the admissibility of evidence shall apply to thephotographs.
(g) The law enforcement agency disposing of property in anymanner provided in subsection (b), (c), or (e) shall maintain certifiedrecords 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 dispositionof firearms seized by a law enforcement agency.
(i) A law enforcement agency that disposes of property by auctionunder this section shall permanently stamp or otherwise permanentlyidentify the property as property sold by the law enforcement agency.
(j) Upon motion of the prosecuting attorney, the court shall orderproperty seized under IC 34-24-1 transferred, subject to the perfectedliens or other security interests of any person in the property, to theappropriate 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 regulationsadopted 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 theaffiant has good reasons to believe, and does believe, that a deadhuman body is illegally secreted in a certain building, or otherparticularly specified place in the county, the judge may issue asearch warrant authorizing a law enforcement officer to enter andsearch the building or other place for the dead body. While makingthe search, the law enforcement officer shall have the power of anofficer 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 beexecuted according to its terms anywhere in the state. A searchwarrant issued by a court that is not a court of record may beexecuted according to its terms anywhere in the county of the issuingcourt.
(b) A search warrant must be:
(1) executed not more than ten (10) days after the date ofissuance; and
(2) returned to the court without unnecessary delay after theexecution.
(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 innerdoor or window in order to execute a search warrant, if he is notadmitted following an announcement of his authority and purpose.
(e) A person or persons whose property is wrongfully damaged orwhose person is wrongfully injured by any law enforcement officeror officers who wrongfully enter may recover such damage from theresponsible authority and the law enforcement officer or officers asthe court may determine. The action may be filed in the circuit court,superior court or county court in the county where the wrongful entrytook 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
Sec. 8. (a) A judge may issue a search or arrest warrant withoutthe affidavit required under section 2 of this chapter, if the judgereceives 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 verifyingthe facts recited under penalty of perjury, an applicant for a warrantunder subsection (a)(2) shall read to the judge from a warrant formon which the applicant enters the information read by the applicantto the judge. The judge may direct the applicant to modify thewarrant. If the judge agrees to issue the warrant, the judge shalldirect the applicant to sign the judge's name to the warrant, addingthe time of the issuance of the warrant.
(c) After transmitting an affidavit, an applicant for a warrantunder subsection (a)(3) shall transmit to the judge a copy of awarrant form completed by the applicant. The judge may modify thetransmitted warrant. If the judge agrees to issue the warrant, thejudge shall transmit to the applicant a duplicate of the warrant. Thejudge shall then sign the warrant retained by the judge, adding thetime of the issuance of the warrant.
(d) If a warrant is issued under subsection (a)(2), the judge shallrecord the conversation on audio tape and order the court reporter totype or transcribe the recording for entry in the record. The judgeshall certify the audio tape, the transcription, and the warrantretained by the judge for entry in the record.
(e) If a warrant is issued under subsection (a)(3), the judge shallorder the court reporter to the retype or copy the facsimiletransmission for entry in the record. The judge shall certify thetranscription or copy and warrant retained by the judge for entry inthe record.
(f) The court reporter shall notify the applicant who received awarrant under subsection (a)(2) or (a)(3) when the transcription orcopy required under this section is entered in the record. Theapplicant shall sign the typed, transcribed, or copied entry uponreceiving notice from the court reporter.
As added by P.L.161-1990, SEC.2.