Indiana Suppression Law: Do Plastic Bags Create Probable Cause for a Search?

Indiana Suppression Law by Criminal Attorney Jeff Cardella

If you are in need of a top rated criminal defense attorney in Indiana, call me at 317-695-7700 for a free consultation or email me. I have been a criminal attorney in Indiana for my entire legal career, with nearly two decades of experience, and taught criminal law at the Indiana University School of Law. I have extensive experience with Suppression Law and taught Suppression as part of my course at the law school. A common issue that arises in many cases is whether or not a police officer can conduct a search after seeing a plastic bag.  There is nothing illegal about owning plastic bags, but they are sometimes used to package drugs. This topic actually comes up surprisingly often. We will discuss the case law on this legal question more below. 

The Plain View Doctrine and Probable Cause

In the realm of Fourth Amendment jurisprudence, the question of whether the mere observation of plastic bags can furnish probable cause for a search or seizure is a nuanced inquiry that hinges on the principles of the plain view doctrine. This doctrine, as articulated by the United States Supreme Court in Horton v. California, 496 U.S. 128 (1990), permits warrantless seizures when three conditions are met: (1) the officer must be lawfully positioned to observe the item; (2) the incriminating character of the item must be immediately apparent; and (3) the officer must have a lawful right of access to the object. In Indiana, these federal standards are supplemented by Article 1, Section 11 of the Indiana Constitution, which emphasizes reasonableness under the totality of the circumstances, as expounded in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005).

The crux of the analysis often lies in the second prong: whether the incriminating nature is “immediately apparent.” Probable cause demands more than a mere hunch; it requires a practical, non-technical probability that the item is evidence of a crime, viewed through the lens of an officer’s training and experience, per Illinois v. Gates, 462 U.S. 213 (1983). Applied to plastic bags—ubiquitous containers with myriad innocent uses—courts have frequently held that their observation alone falls short of this threshold unless accompanied by additional indicia of criminality.

Case Law Analysis: Plastic Bags and Probable Cause

Consider Abner v. State, 741 So.2d 440 (Ala. Crim. App. 1998), where an officer’s knowledge that plastic bags are commonly used to transport narcotics did not render their incriminating nature apparent. The court reasoned: “It is not the primary purpose of plastic bags to hold illegal drugs, and the fact that an officer has first-hand experience with plastic bags containing drugs cannot, without more, provide probable cause to seize each plastic bag the officer may encounter. Moreover, . . . the fact that the appellant was in an area known for drug activity and the fact that he had a clear plastic bag in his pocket that was partially exposed do not by themselves, or taken together, constitute sufficient facts and circumstances upon which to base a finding of probable cause to search.” This holding underscores that generic containers, even in suspicious contexts, do not inherently satisfy the immediately apparent requirement.

This perspective resonates in federal jurisprudence applicable to Indiana via the Seventh Circuit. In Moya v. United States, 761 F.2d 322 (7th Cir. 1985), the court determined that the visible corner of a plastic bag protruding from luggage did not establish probable cause under the plain view doctrine. The panel emphasized that plastic bags are commonplace and lack inherent criminal connotations, absent visible contents or other corroborative factors. Similarly, in U.S. v. Miller, 769 F.2d 554 (9th Cir. 1985), while a clear plastic bag that fell from a suitcase permitted a field test, the court distinguished opaque containers, requiring a warrant for further intrusion.

Contrast this with scenarios where additional elements tip the scales. The U.S. Supreme Court in Texas v. Brown, 460 U.S. 730 (1983), upheld probable cause for seizing a tied-off balloon, noting the officer’s experience with such containers for narcotics packaging, alongside plastic vials and loose powder. Here, the container’s specific configuration and contextual clues rendered its illicit nature apparent. In Indiana-specific precedent, State v. Hollins, 672 N.E.2d 427 (Ind. Ct. App. 1996), illustrates this distinction: officers observed a defendant drop a plastic bag containing visible white powder, which field-tested as cocaine, thereby establishing probable cause for arrest and further search.

Further, in trash-pull investigations, plastic bags can contribute to probable cause when they bear traces of contraband. In State v. Harmon, 846 N.E.2d 1056 (Ind. Ct. App. 2006), discarded plastic bags with white residue, corners cut off (a common drug-packaging technique), and marijuana remnants provided sufficient indicia of ongoing criminal activity to support a search warrant. Yet, as in Cody Moore v. State, 220 N.E.3d 65 (Ind. Ct. App. 2023), where large plastic bags of marijuana were discovered post-search, the initial probable cause stemmed from the odor of marijuana, not the bags themselves.

Implications for Suppression Motions

The case law shows that the totality of circumstances governs. Mere visibility of a plastic bag, even in a high-crime area or coupled with officer expertise, seldom suffices without observable contents, distinctive packaging, or corroborative evidence like residue or odors. Defense counsel should scrutinize whether the “immediately apparent” prong is met, potentially leveraging cases like Abner and Moya to argue for suppression. In Indiana courts, invoking both federal and state constitutional protections can yield robust challenges to warrantless seizures.

Contact My Office for a Free Consultation

Call me for a free consultation to discuss your case.

Phone: 317-695-7700

Email: jeffcardella@cardellalawoffice.com

I handle cases throughout all of Indiana, including the Federal District Courts and the Seventh Circuit Court of Appeals. The main geographic areas that I practice law in are:

DISCLAIMER – The information contained on this website is provided for educational and informational purposes only and should not be construed as legal advice or as an offer to perform legal services on any subject matter. The content of this website contains general information and may not reflect current legal developments or information. The information is not guaranteed to be correct, complete, or current. We make no warranty, expressed or implied, about the accuracy or reliability of the information at this website or at any other website to which it is linked. Recipients of content from this site should not act or refrain from acting on the basis of any information included in the site without seeking appropriate legal advice on the particular facts and circumstances at issue from an Indiana Criminal Defense attorney or an attorney licensed in the recipient’s state. Nothing herein is intended to create an attorney-client relationship and shall not be construed as legal advice. This is not an offer to represent you, nor is it intended to create an attorney-client relationship.