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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)