The officer here needed a search warrant for defendant’s blood for suspicion of DUI. When the warrant was issued, a photograph of it was sent to his cell phone. Defendant objected to the form of the warrant claiming that it wasn’t served on him. A cell phone picture of the warrant served the purposes under the statute to inform the officer of the scope of the search. The actual warrant was in existence and in the record, too. The statute permits “transmission” of the warrant, and this suffices. Taylor v. State, 2017 Ind. App. LEXIS 15 (Jan. 17, 2017):
P8 As to the first point, the officer need not serve the search warrant on the person to be searched at all, let alone in any particular format. Indiana Code section 35-33-5-7 sets forth the requirements for execution of a search warrant, including the requirement the officer announce his authority and purpose. Ind. Code § 35-33-5-7(d). Neither this statute, our state criminal procedure rules, nor the state or federal constitutions require service of a copy of the warrant on the person whose property is to be searched. State v. Smith, 562 N.E.2d 428, 429 (Ind. Ct. App. 1990); see also United States v. Grubbs, 547 U.S. 90, 98-99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006) (stating that neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes a requirement that the executing officer present the property owner with a copy of a search warrant before conducting the search). Accordingly, the fact that Taylor was not served with a paper copy of the search warrant before the blood draw is not a violation of his constitutional rights.
P9 As to the second point, Taylor argues Sergeant Brahaum did not have an “actual warrant” at the time of the blood draw because she had only a photograph of the warrant. See Appellant’s Br. at 8. Both the Fourth Amendment and Article 1, section 11 require a warrant to be issued only upon probable cause “supported by oath or affirmation.” Indiana Code section 35-33-5-2 generally requires a person seeking a search warrant to file a written affidavit with a judge, except as provided in section 8. In turn, section 35-33-5-8 provides that a judge may issue a warrant without the section 2 affidavit if he or she receives sworn testimony of the same facts required for an affidavit that is given orally in person or over the phone, or in writing by FAX, email, or other electronic transmission. Ind. Code § 35-33-5-8(a)5; see Missouri v. McNeely, 133 S.Ct. 1552, 1562, 185 L. Ed. 2d 696 (2013) (noting “[w]ell over a majority of States” have “innovated” with “technology-based developments” that allow applications for search warrants to be made remotely through various reliable electronic means). It is unclear how Sergeant Brahaum obtained the search warrant here, but for our purposes, it does not matter. Section 35-33-5-8 allows for an affiant applying by telephone to sign the judge’s name to a warrant under the judge’s direction, Ind. Code § 35-33-5-8(c); for a judge to transmit a duplicate of a signed warrant to an affiant applying by FAX or email, Ind. Code § 35-33-5-8(d); and for the affiant and judge to use an electronic signature on the affidavit and warrant, Ind. Code § 35-33-5-8(h). In other words, it is clear section 35-33-5-8 contemplates a situation where the officer and judge do not exchange pieces of paper in order to procure a search warrant, and also contemplates an officer may not have a physical copy of the warrant in his or her possession at the time the warrant is executed. Indiana Code section 35-33-5-8(d) states that if a judge agrees to issue a warrant transmitted by FAX or email, the judge shall “transmit to the applicant a duplicate of the warrant.” The easiest and most likely way to transmit a warrant to an officer who applied via email is to reply to the email. The only specific requirement with regard to warrants procured via electronic means is that the affidavit and warrant be printed and retained as if they were the originals. Ind. Code § 35-33-5-8(f). The statute therefore preserves the creation of a permanent written record of the warrant proceedings to protect the defendant’s Fourth Amendment rights while allowing for efficient use of technology in the process.