When are Warrants Required and When are Warrantless Searches Allowed?

In criminal law, almost everyone realizes that police officers cannot search people or places on a hunch without probable cause or a search warrant. Part and parcel to this common knowledge is the expectation from the average person that in order to search a person or property the police should be required to have a warrant. And, while that is true for many situations, what most people don’t realize is that there is a myriad of exceptions to this requirement. Therefore, when people call our office complaining that a warrant wasn’t issued as part of their criminal case, we often have to dig into the facts of the case itself before telling them if the lack of a warrant is detrimental to the State’s case or not. Often, it isn’t as straight forward as it seems.

Procedurally, warrant related issues and improper searches dominate the field of litigation in criminal cases and often lead to hard fought suppressions between the State and the Defense. Leading the charge in that litigation are drug related offenses, gun related cases, and physical evidence-based seizures tied to criminal charges. Typically, in these cases, the State’s case is reliant on the evidence found on scene during the search. If the officers don’t follow the letter of the law through a search warrant or a proven exception, the evidence can be suppressed as ‘Fruit of the Poisonous Tree,’ and as a result, the State (more than likely) will be unable to proceed. This blog will address the search warrant requirements and exceptions.

For a quick read of resources provided by the Indiana State Police and which helped guide the information for this blog, please click here:

Search Warrants: the general requirements for police officers looking to search property or a person through a warrant require:

1. The officer, in the county where the crime was allegedly committed, should author an affidavit and/or formally request the ability to search to a judge either orally or in writing under IC 35-33-5
2. The request can be over the phone, in person, through a recording, fax, or by writing and submitted in electronic format.
3. The request must lay out the reason for the request, the law that is alleged to have been broken, why the request is being made, what is requested to be searched specifically (the search cannot extend beyond that), the location of the search, the name of the person(s) and/or property involved, often times the officers’ training and experience and how that plays a role in their request, and any other relevant facts.
4. The warrant must be signed by a judge and dated

Warrant Exceptions: when a warrant cannot be obtained, there are other legal basis to search. They are below (although not exhaustive), and it is the State’s burden to prove why they exist and why the warrant wasn’t feasible given the circumstances:

1. The officer must have a legal right to be where he/she is
   • Stop & Frisk (a.k.a “Terry Stop”):
     • If an officer has “reasonable belief” based on their experience and training that “criminal activity may be afoot” by the defendant
     • And that the defendant may be armed and/or potentially dangerous
     • A brief stop of the defendant (where they were found) may be authorized, allowing the officer to:
       • Ask for identification
       • Ask preliminary questions without Miranda/Pirtle (with some exceptions)
       • Frisk the defendant for weapons only (by an officer of the same sex)
       • Frisk any other person in the vehicle (by an officer of the same sex) if there is reasonable suspicion that person may be dangerous or armed
       • If a weapon is believed to be felt during the brief and limited frisk or pat down, the officer may remove the weapon.
         • Importantly, it must actually feel like a weapon. This is not carte blanche to search anything (this is the State’s burden to prove)
   • Consent to Search:
     • “Consent” is not looked at in a vacuum. Consent will be evaluated on the “totality of the circumstances”
     • The defendant must be proven to be free to act and does not feel forced (this is a burden on the State to prove)
     • If in custody, written consent is not required in all circumstances (county dependent), however if consent is to be given, the defendant must be given the chance to speak to a lawyer
       • Consent in writing should use State Form 39329/R
       • The defendant should be read Pirtle warnings & Miranda
     • If they are not detained, visual or audible recording and/or written consent is required
2. Exigent Circumstances:
   • The officer has a subjective belief that they must act instantaneously, because:
     • They are in pursuit of a defendant who has fled the police
     • The officer believes that evidence might be destroyed, and/or
     • There is a belief that there is a serious risk of death or SBI (serious bodily injury)
3. Search Incident to an Arrest:
   • The search must occur at the time of the arrest and allows for search of the person and any items on the person by an officer of the same sex
   • The search may extend beyond the person to their surroundings and to items within their control. They may include containers or other unlocked and accessible items
   • If a vehicle is involved as part of the arrest, an officer may search the passengers compartments in case of fear of destroying evidence or quick access to weapons, however that is limited to:
     • The officers’ reasonable suspicion that evidence tied to the crime are present in the vehicle
     • The person being searched is not in handcuffs and is able to access the property within arms’ reach or other compartments
   • If a home or other property is involved, an officer may do a very quick “protective sweep” of the premises if there are others in the home or property that may be a risk of harm or danger
4. Plain View Doctrine:
   • While encountering the defendant, if anything is open and obvious and is able to be sensed by the police officer (audibly, visually, olfactorily, and/or tactilely)
   • That is clearly illegal, possible contraband and/or possible evidence
   • The officer may search or seize the evidence without a warrant
   • The police, through the plain view exception may:
     • Search open fields and areas that are clearly separate from and not considered “curtilage” and/or any other structure where there would be a right to privacy
     • Search abandoned property, including discarded trash meant for pick up by a trash company (with some limitations)
     • Use aerial observation over private property and homes in public air space
5. Inventory of a Vehicle After Arrest:
   • So long as a vehicle is lawfully in the custody of the police according to the polices laid forth by the officers’ agency rules
   • An officer may search (also pursuant to the agency rules of that officer) a vehicle and chronicle what is searched and found on an itemized check list
   • This search can involve:
     • “Accessible containers” if the contents cannot easily be seen from the exterior (i.e. a pill bottle that is clear cannot be searched unless what is inside is clearly illegal, etc)
     • Locked portions of the vehicle and/or containers (with some exceptions) if the search will not damage the item and/or container being searched

As anyone can see, there are quite a few scenarios where a warrant isn’t required, but it is equally obvious that there is a lot to litigate over in all of these exceptions. While this list is not exhaustive, and it would be impossible to cover all the relevant case law pertaining to these exceptions, this provides a quick framework for what is permissible, when it is, and what isn’t allowed. Any experienced Indianapolis Criminal Defense attorney worth their weight in gold should know these exceptions like the back of their hand and not be afraid to litigate them when necessary.

Should you or a loved one be facing a criminal offense in Indiana, give the experienced Criminal Attorneys at Banks & Brower, LLC a call today. We are available 24/7/365 at 317.870.0019. Or, shoot us an email at info@banksbrower.com.