An Overview of Fourth Amendment Search and Seizure

In many criminal prosecutions, the government gathers its strongest (and sometimes only) evidence through a search of the defendant or of the defendant’s property. The Fourth Amendment of the United States Constitution protects American citizens against unreasonable searches and seizures. Specifically, the Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This post will provide an overview of the Fourth Amendment, how it applies, and some common exceptions to requirement that police obtain a valid warrant based upon probable cause.

The first real inquiry one should make when challenging the validity of a government search is whether a reasonable expectation of privacy exists. This is critical, because if the person challenging the search does not have a reasonable expectation of privacy in the property searched or seized, then that person lacks legal standing to challenge the search. The reasonable expectation of privacy analysis is incredibly fact-sensitive, and should be reviewed on a case-by-case basis. However, there are certain scenarios where a reasonable expectation of privacy almost always exists. For example, if you own, live on, or are an overnight guest at the premises searched, you have a reasonable expectation of privacy in that premises, and would have standing to challenge the search. On the other hand, there are also scenarios where courts are not going to find a reasonable expectation of privacy. These “no standing” categories generally deal with things that you hold out to the public, such as the sound of your voice, the paint on your car, the location of your car on a public road, the style of your handwriting, or anything that can be seen across open fields.
If you have a reasonable expectation of privacy, the next question we need to answer for Fourth Amendment purposes is whether the police have a valid search warrant. For a search warrant to be valid, it must (1) be based on probable cause and (2) state with particularity the place to be searched and the things to be seized. Probable cause exists if there is a fair probability that evidence of a crime will be found in the area searched. If police have a valid warrant, they are allowed to search the area(s) listed in the warrant and seize the items listed in the warrant, if found during the search.

While police are generally required to get a warrant before executing a search or seizure, courts have developed quite a few exceptions to that general rule over time. In these certain scenarios, police are not required to get a warrant at all. Some of the more common exceptions to the warrant requirement include:

1. Search Incident to Arrest.

Police are permitted to search you following a lawful arrest, with some limitations. First, the arrest must be legal. If the arrest is illegal, the search incident to that arrest is also illegal. Next, the arrest and search must take place at the same time and place. For example, police cannot arrest someone in Indianapolis, transport that person to Cincinnati, and then search the person incident to arrest once they get to Cincinnati. Police are also generally limited to searching the person and the area within the person’s wingspan when searching incident to arrest.

2. Vehicle Search Incident to Arrest.

There are also circumstances that allow police to search a vehicle incident to arrest. Police may search the interior of a vehicle incident to arrest only if (1) the arrestee is unsecured and can still access the vehicle, or (2) the police reasonably believe that evidence of the offense that the person was arrested for may be found in the vehicle. It is important to note here that it does not matter what evidence police ultimately find during a vehicle search incident to arrest, so long as the search itself was valid.

3. Automobile Exception.

Police must have probable cause before searching anything or anyone within the purview of the automobile exception. The probable cause justifying a warrantless vehicle search under this exception can arise after a traffic stop, but must arise before any search. If, and only if, police have probable cause before searching anything or anyone, then they can search the entire car. That means they can search the entire interior, including the trunk, and any luggage or containers inside the car—so long as the luggage or containers may reasonably contain the item that they have probable cause to be searching for.

4. Plain View Exception.

The plain view exception permits police to seize evidence of crimes that, not surprisingly, are in the plain view of the police. The two key factors in determining the validity of a plain view seizure are (1) whether the police are legitimately present at the location where the item is seized and (2) whether it is immediately apparent that the item is contraband. For example, if a police officer bursts into your home for no apparent reason and finds marijuana on your table, the officer is not likely “legitimately present,” and the evidence should be suppressed. However, if a police officer makes a valid traffic stop and sees marijuana on your passenger seat, he may properly seize it under the plain view exception.

5. Consent.

Police may search a person or property if given consent. For consent to be valid, it must be voluntary. Additionally, if two or more people have authority to consent to a search of certain property, any one of those people can consent to a warrantless search. However, if all people with authority are present, and even one person does not consent to a warrantless search, then that person’s refusal overrides the others’ consent.

Fourth Amendment search and seizure is tremendously nuanced, but is one of the most important areas of the law for a criminal defense attorney to know and understand. If the government violates the Fourth Amendment, evidence derived from its violation may be suppressed—meaning it can’t be used at trial. If the government cannot use evidence at trial, it may have no choice but to dismiss charges.

If you or a loved one are the subject of an investigation, or have been charged with a crime, contact us at any time via email at legal@pillarlgp.com or by phone at (812) 539-2111. We will help you.

Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.

What Happens If I Get Pulled Over and Refuse a Chemical Test in Indiana?

In Indiana, there are a wide range of consequences for operating a vehicle while intoxicated. Most Hoosiers are well aware that there are substantial risks associated with OWI, including criminal convictions and jail time. However, many are not aware of Indiana’s Implied Consent Law and the impact it may have on an OWI case and a defendant’s foreseeable future. This post will review the Implied Consent Law and how it applies to each and every one of us who drive in Indiana.

The Implied Consent Law generally states that a person who operates a vehicle impliedly consents to a chemical test as a condition of operating a vehicle in Indiana. In other words, you really have no choice but to submit to a chemical test properly offered to you by a police officer. There are harsh penalties for refusing such a chemical test.

First, it is important to distinguish between a chemical test and the other types of tests that may be offered during the course of a traffic stop or OWI investigation. A preliminary breath test or “PBT” (the handheld breathalyzer device that officers carry with them while on patrol) is not a chemical test as contemplated by Indiana’s Implied Consent Law. The standardized field sobriety tests typically offered roadside are not chemical tests either. “Chemical test” under the Implied Consent law means either (1) a blood test or (2) a breath test conducted by a certified operator using a certified instrument/machine (typically handled at a police station on an “EC/IR II” breathalyzer). The State of Indiana regularly inspects each police department’s EC/IR II, and maintains certifications for each instrument and each certified operator.

So, when can a police officer offer a driver a chemical test? Indiana code requires an officer to offer a chemical test to a driver within three hours of operation when the officer has probable cause to believe that the driver operated while intoxicated. Police officers use a combination of the circumstances of the stop, initial contact and observations of the driver, and the results of any standardized field sobriety tests in order to determine whether they have probable cause to offer the chemical test.

If the officer believes probable cause exists, the officer will then inform the driver of the Implied Consent Law and the possible consequences of refusing the chemical test. The officer will typically read the advisement from an implied consent card that officers carry, which states as follows:

“I am a police officer; I have probable cause to believe that you have operated a vehicle while intoxicated. I must now offer you the opportunity to submit to a chemical test, and inform you that your refusal to submit to a chemical test will result in the suspension of your diving privileges for one year. If you have at least one previous conviction for operating while intoxicated, your refusal to submit to a chemical test will result in the suspension of your driving privileges for two years. Will you now take a chemical test?”

As you can see, the Implied Consent Law requires the BMV to suspend a driver’s driving privileges for one to two years for refusing a chemical test, depending on the driver’s history of OWI. That refusal suspension is further required to run first, and in addition to, any other suspension resulting from an OWI conviction. A refusal suspension also renders the driver statutorily ineligible for specialized driving privileges, meaning that there is no possibility of having driving privileges restored during the term of the refusal suspension.

Clearly, a driver’s decision to submit to or refuse a chemical test is an important one with potentially devastating consequences. An experienced OWI attorney can help navigate the nuances associated with OWI investigations and charges, and will be able to help mitigate any resulting penalties. If you or a loved one have been charged with OWI, contact us at any time via email at legal@pillarlgp.com or by phone at (812) 539-2111. We will fight for you.

Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.

Miranda, Pirtle, and How They May Impact a Criminal Case

As defense lawyers, we often receive questions about whether or when a criminal defendant should have been read his or her rights. More often than not, those questions are referring to Miranda rights:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

However, in Indiana, Pirtle rights also exist. This blog will provide an overview of these rights, when they apply, and how they may impact the outcome of a criminal case.

Most people are familiar with Miranda rights, at least to some extent. Generally, police must read Miranda warnings to an individual once that individual is (1) in custody and (2) subject to interrogation. That means that police only have to “Mirandize” a suspect if the suspect is in custody and the police want to question the suspect. “Custody” for purposes of this inquiry is determined by a “reasonable person” standard—if a “reasonable person” in the suspect’s position would not feel free to leave, then the law says that the suspect is/was in custody. The custody analysis is incredibly fact-sensitive and should be reviewed on a case-by-case basis. Most often, Miranda issues that arise in a criminal case relate to statements or confessions that a criminal defendant is alleged to have made during the course of an investigation.

Importantly, suspects and criminal defendants in Indiana are also protected by a set of rights called Pirtle rights. Pirtle rights typically apply in situations where police want to search a suspect’s vehicle or home. Like Miranda rights, Pirtle rights attach or apply to persons in custody. However, Pirtle further entitles Hoosiers to the presence and advice of counsel prior to consenting to a search. That means that, in addition to reading Miranda rights to suspects in custody prior to interrogation, police also have to read Pirtle warnings to suspects in custody if they are seeking consent to a search of the suspect’s property. The Pirtle warnings must inform the person in custody as follows:

“You have the right to require that a search warrant be obtained before any search of your residence, vehicle or other premises. You have the right to refuse to consent to any such search. You have the right to consult with an attorney prior to giving consent to any such search. If you cannot afford an attorney, you have the right to have an attorney provided to you at no cost.”

There are, of course, exceptions to these general rules. For example, even if a suspect chooses to invoke his or her Miranda rights, he or she may still be required to answer questions seeking basic identifying information (i.e. name, date of birth, address). Suspects may also be patted down (i.e. searched) for weapons in the interest of officer safety. Both sets of rights may also be waived by suspects or defendants.
Finally, if a Court determines that the State obtained or derived certain evidence from a violation of either Miranda or Pirtle, the Court may suppress that evidence. If the Court suppresses evidence, the State cannot use that evidence at trial. And, if the State cannot use certain evidence at trial, the State may be left with no choice but to dismiss the criminal charges that it filed against a defendant.

The rights of the accused should be at the forefront of, and of the utmost importance to, any criminal justice proceeding. An experienced and dedicated defense attorney can help protect those rights. If you or a loved one are the subject of a criminal investigation or have been charged with a crime, contact us at any time via email at legal@pillarlgp.com or by phone at (812) 539-2111. Thank you.

Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.

Updates to Specialized Driving Privileges in Indiana

Last year, Indiana legislators amended the law to the benefit of those recently charged with Operating a Vehicle While Intoxicated (“OWI”). Under the new law, Hoosiers have the ability to avoid an immediate license suspension. This post will lay out the general procedure for staying that initial suspension and obtaining Specialized Driving Privileges (“SDP”) when charged with OWI.

First, one must be eligible for SDP. You are ineligible for SDP in Indiana if (1) you have never been an Indiana resident, (2) you refused a certified chemical test offered to you by a police officer, or (3) the BMV determined that you are incompetent or unfit to operate a vehicle.

Generally, if, at an initial hearing, a Judge finds probable cause that a defendant operated a vehicle while intoxicated, the Judge is required to suspend your driving privileges and notify the BMV of that suspension. This is commonly referred to as a “probable cause suspension.” Prior to the recent amendment to the SDP law and procedure, an OWI defendant would be stuck with the probable cause suspension unless and until the defendant was awarded SDP. Previously, that meant that defendants could not drive until (1) they obtained the required SR-22/insurance coverage, (2) they drafted and filed their Petition for SDP, and (3) they attended a subsequent hearing at which the Judge would hopefully grant SDP.

Indiana Code 9-30-16-1(g) now changes that procedure and offers an avenue to stay the probable cause suspension. More specifically, if a defendant indicates to the Court at an initial hearing that (1) the defendant is eligible for SDP and (2) the Defendant intends to file a Petition for SDP, the Court must stay the probable cause suspension for a period of 30 days. From there, time is of the essence, as the defendant has only 10 days from the date of the initial hearing to obtain the required SR-22 coverage and file the Petition for SDP. The suspension will go into effect if the defendant does not properly file for SDP within that 10-day window. However, so long as a defendant properly files for SDP within 10 days, the suspension will remain stayed until the Court holds a subsequent hearing and either grants (and thus continues) the SDP or denies the SDP.

While the possibility of staying a suspension of driving privileges is a positive for Hoosiers charged with OWI, it must be noted that Courts can, and frequently do, impose certain conditions or limitations on the privileges they grant. For example, Courts can limit your driving privileges to certain days of the week, certain hours of the day, or even limit where you are allowed to drive to and from. Courts may also require that the defendant only operate a vehicle with an ignition interlock device installed.

Choosing an attorney with knowledge and experience in OWI and SDP laws can make a drastic impact in your case, which can in turn make a drastic impact on your future. If you or a loved one have been charged with OWI, or need help applying for specialized driving privileges, please contact us at any time via email at legal@pillarlgp.com or by phone at (812) 539-2111. Thank you.


Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. Please consult an attorney with questions regarding a specific case.

COVID and the Courts

How is the COVID-19 Health Emergency Impacting the Judicial System?

The COVID-19 (“COVID”) pandemic has the entire country in a state of emergency. Just yesterday, Governor Holcomb formally ordered Indiana schools closed for the remainder of the year. Businesses and restaurants are either closed or operating under significant restraints. Even “essential businesses” that are permitted to remain open must do so subject to the social distancing guidelines prescribed by the Centers for Disease Control and Prevention. Unfortunately, COVID is significantly impacting the judicial system as well.

On March 16, 2020, the Indiana Supreme Court issued an Order directing trial courts to prepare emergency local plans to protect against COVID’s onslaught. Specifically, the Court recommended petitioning for the following relief:

1. Tolling for a limited time all laws, rules, and procedures setting time limits for speedy trials in criminal and juvenile proceedings, public health, mental health, and appellate matters; all judgments, support, and other orders; and in all other civil and criminal matters before all State of Indiana trial courts.

2. Suspending and/or rescheduling criminal and civil jury trials for a limited time (subject in criminal cases to the Constitutional right to speedy trial and Constitutional protection against double jeopardy).

3. Suspending new juror orientations, extending existing jury panels, and/or postponing jury service to a later date for jurors who are ill, caring for someone who is ill, or in a high-risk category.

4. Continuing and/or rescheduling non-essential hearings (excluding emergency matters, domestic violence hearings, and evidentiary hearings in criminal cases).

5. Using telephonic or video technology in lieu of in-person appearances, unless a litigant’s due process rights would be violated.

6. Flexibility allowing the county’s judges to exercise general jurisdiction over cases in each other’s courts.

7. Issuing summonses in lieu of bench warrants or notices of failure to appear.

8. Considering (a) the existence of flu or flu-like symptoms in any attorney, selfrepresented litigant, or witness expected to testify; (b) exposure of such individuals to anyone who has or may have COVID-19; or (c) status of such individuals in a highrisk category; to constitute “good cause” to either appear remotely or continue a court setting, to the extent possible without violating statutory or constitutional rights.

9. Allowing any attorney wishing to appear remotely (e.g., through teleconference systems, etc.) for any status conference or non-evidentiary hearing without further leave of court upon filing a “Notice of Remote Appearance” in the court in which the matter will be heard.

10. Subject to applicable Constitutional limitations, limiting spectators (other than parties to the litigation and their attorneys) in courtrooms to the extent necessary to provide adequate social distancing.

11. For trial court clerks, making drop boxes available, for conventionally filed documents.

12. Posting signage at all public entry points to judicial facilities advising individuals not to enter the building if they have:

a. Visited China, Iran, South Korea, any European countries, or any other high-risk countries identified by the CDC in the previous 14 days;

b. Resided with or been in close contact with someone who has been in any of those countries within the previous 14 days;

c. Traveled domestically within the United States where COVID-19 has sustained widespread community transmission;

d. Been asked to self-quarantine by any doctor, hospital, or health agency;

e. Been diagnosed with or had contact with anyone who has been diagnosed with COVID-19; or

f. A fever, cough or shortness of breath; and directing bailiffs or court security officers to deny entrance to individuals attempting to enter in violation of these protocols.

 

13. Allowing individuals with legitimate court business to stay home and request a continuance by phone to the county Clerk if they are ill, caring for someone who is ill, or in a high-risk category.

14. Providing sanitation materials (such as hand sanitizer or bleach wipes) at all courtroom entrances and counsel tables.

Indiana trial courts thus requested and were granted that relief from the Supreme Court, and have gone on to implement local emergency action plans. The complete list of Counties and their respective Petitions may be viewed here. The result of the emergency action plans has been severely limited access to the courts, continuance of most hearings, telephonic appearances for hearings that are required, and general disruption to the typical processes and procedures that courts follow. USA Today also recently weighed in and highlighted some of these issues facing the judicial system and the real-life decisions that Hoosier practitioners are being forced to make under these difficult circumstances.

So, what does all of this mean for the people that the judicial system serves? Generally, it means that we should expect (potentially significant) delays in most cases, even criminal cases, as we work our way through these uncertain times. Please be patient if your case or a loved one’s case is impacted by this ongoing COVID health emergency. Your hearing dates may be moved without request, and it may take longer than anticipated to get the judicial relief you seek.

If you need help with your case, or have questions about what to expect from the courts in light of the COVID health emergency, please contact us at any time via email at legal@pillarlgp.com or by phone at (812) 539-2111. Above all else—stay home, stay safe, and take care of one another.

Disclaimer: this post is made for informational purposes only, and should not be construed as legal advice. The information provided herein is subject to change on a daily basis. Pillar Law Group LLP will strive to provide updates as they come, but please contact an attorney with questions regarding specific cases or for the most recent information available. Thank you.