Indiana Suppression Law: The Misdemeanor Arrest Rule By Criminal Attorney Jeff Cardella

My office has been recognized as one of the Ten Best Law Firms in the State of Indiana by the American Institute of Criminal Law Attorneys, I was selected as one of the Top 100 Attorneys by the National Trial Lawyers Association, my office has been recognized as one of the Top 10 Law Firms in the State of Indiana by the American Association of Attorney Advocates, and I have been recognized as one of the Top 10 Criminal Defense Attorneys in the State under the age of forty by the National Academy of Criminal Defense Attorneys. I taught criminal law at theIndiana University School of Law and served as a Judge pro tem in Indiana. I filed the Federal Class Action lawsuit of Washington v. Marion County Prosecutor, in which Indiana’s vehicle forfeiture statute was held to be unconstitutional under the Due Process Clause of the US Constitution. I also co-authored the amicus brief for the United States Supreme Court case of Timbs v. State of Indiana, in which the United States Supreme Court held that Indiana’s attempts at forfeiture were unconstitutional under the Excessive Fines Clause of the US Constitution. I handled over a dozen successful lawsuits against the Indiana Department of Corrections, challenging solitary confinement procedures under the Due Process Clause of the US Constitution. I also filed several successful lawsuits against the Indianapolis Metropolitan Police Department for arrests that violated the First Amendment of the US Constitution. Additionally, I have represented a fellow criminal defense attorney, an IMPD Police Officer, and two former Sheriff’s deputies after they were arrested and accused of illegal activity. As members of the legal community, these individuals spend a great deal of time in court and have firsthand experience with many different criminal lawyers. These individuals, having familiarity with many different criminal attorneys, were aware of the high quality of legal representation that I provide and trusted me to serve as their Indiana criminal defense lawyer. You can find additional information about my career as an Indiana criminal defense attorney and cases that I have handled on my In the News page.

The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution protect individuals from unreasonable searches and seizures, including arrests. In Indiana, warrantless arrests are governed by Indiana Code (IC) § 35-33-1-1, which outlines the circumstances under which law enforcement officers may arrest without a warrant. This statute balances law enforcement needs with individual liberties, generally requiring misdemeanors to occur in an officer’s presence while allowing broader probable cause arrests for felonies and specific exceptions. Below, we look at the general rule for misdemeanor arrests, examination of each exception, supported by relevant case law and analysis. Judicial interpretations emphasize constitutional limits, such as the prohibition on warrantless home entries absent exigent circumstances, and highlight policy rationales like protecting vulnerable populations.

Full Text of IC § 35-33-1-1

The statute reads as follows:

(a) A law enforcement officer may arrest a person when the officer has:

(1) a warrant commanding that the person be arrested;

(2) probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony;

(3) probable cause to believe the person has violated the provisions of IC 9-26-1-1.1 or IC 9-30-5;

(4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer’s presence;

(5) probable cause to believe the person has committed a:

(A) battery resulting in bodily injury under IC 35-42-2-1; or

(B) domestic battery under IC 35-42-2-1.3.

The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause;

(6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy) or IC 35-46-1-15.3;

(7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun without a license) or IC 35-47-2-22 (counterfeit handgun license);

(8) probable cause to believe that the person is violating or has violated an order issued under IC 35-50-7;

(9) probable cause to believe that the person is violating or has violated IC 35-47-6-1.1 (undisclosed transport of a dangerous device);

(10) probable cause to believe that the person is:

(A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime); and

(B) interfering with or preventing the reporting of a crime involving domestic or family violence (as defined in IC 34-6-2-34.5);

(11) probable cause to believe that the person has committed theft (IC 35-43-4-2);

(12) a removal order issued for the person by an immigration court;

(13) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or

(14) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).

(b) A person who:

(1) is employed full time as a federal enforcement officer;

(2) is empowered to effect an arrest with or without warrant for a violation of the United States Code; and

(3) is authorized to carry firearms in the performance of the person’s duties;

may act as an officer for the arrest of offenders against the laws of this state where the person reasonably believes that a felony has been or is about to be committed or attempted in the person’s presence.

General Rule for Warrantless Misdemeanor Arrests: IC § 35-33-1-1(a)(4)

IC § 35-33-1-1(a)(4) permits a law enforcement officer to arrest a person without a warrant if the officer has probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer’s presence. This “in-presence” requirement originates from common law. It ensures that arrests rely on direct, reliable evidence. The rule aligns with Fourth Amendment protections against unreasonable seizures. It prevents arrests based on hearsay or speculation, requiring firsthand observation by the officer.

Case Law and Analysis

• Garrett v. City of Bloomington, 453 N.E.2d 308 (Ind. Ct. App. 1983): In this case, police arrested the defendant for telephone harassment, a misdemeanor, after a dispatcher traced a 911 call involving abusive language. The arresting officers did not personally witness the offense but relied on the dispatcher’s report. The Indiana Court of Appeals upheld the arrest. The court held that the offense occurred “in the presence” of the law enforcement agency as a collective entity. The court stated: “The collective information known to the law enforcement organization satisfies the in-presence requirement.” This interpretation accommodates modern policing, where technology and coordination are critical. However, a dissenting opinion argued that the statute requires personal observation by the arresting officer. The dissent warned that expanding the rule risks overreach. Analysis: The Garrett decision broadens the in-presence requirement to reflect contemporary policing practices, such as call tracing. However, it risks weakening the rule’s protective function by allowing arrests based on secondhand information. Courts must ensure that collective knowledge is reliable to prevent arbitrary arrests.

• Frasier v. State, 312 N.E.2d 77 (Ind. 1974): This case involved a warrantless vehicle search following a traffic stop for a misdemeanor. The Indiana Supreme Court clarified that officers are not obligated to arrest for every misdemeanor committed in their presence. The court stated: “The law does not mandate an arrest in every instance, allowing officers discretion based on circumstances.” This flexibility prevents over-enforcement of minor offenses, such as traffic violations. Over-enforcement could overburden the judicial system or escalate minor encounters unnecessarily. Analysis: Frasier emphasizes proportionality in enforcement. The decision ensures that the in-presence rule does not compel arrests for trivial matters. This approach balances public safety with individual rights, preventing undue intrusion.

• Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893): In this early case, the Indiana Supreme Court invalidated a warrantless misdemeanor arrest because the offense did not occur in the officer’s presence. The court held that citizens could reasonably resist such unlawful arrests. Modern law discourages resistance to avoid escalation, as seen in IC § 35-44.1-3-1 (resisting law enforcement). Nevertheless, Plummer establishes that non-presence misdemeanor arrests are invalid. Analysis: Plummer reinforces the in-presence requirement as a constitutional safeguard. Although its resistance holding is outdated due to public safety concerns, the case underscores the rule’s role in preventing arbitrary arrests.

Exceptions to the In-Presence Requirement

IC § 35-33-1-1 enumerates exceptions where warrantless arrests for misdemeanors are permitted based solely on probable cause, without requiring the offense to occur in the officer’s presence. These exceptions target offenses with significant public safety concerns, such as violence, recidivism, or transient evidence. Each exception is analyzed below with relevant case law and detailed interpretation.

IC § 35-33-1-1(a)(3): Violations of IC 9-26-1-1.1 (Hit-and-Run) or IC 9-30-5 (Operating While Intoxicated)

This exception permits warrantless arrests for hit-and-run incidents causing injury or death (IC 9-26-1-1.1) or operating a vehicle while intoxicated (IC 9-30-5). These offenses involve transient evidence, such as blood alcohol levels, or immediate public safety risks, necessitating swift action.

• Case Law: In Moody v. State, 448 N.E.2d 660 (Ind. 1983), police arrested the defendant for operating while intoxicated after observing erratic driving and conducting field sobriety tests. The Indiana Supreme Court upheld the arrest. The court found probable cause based on the officer’s observations, even though the arrest occurred shortly after the driving ceased. The court stated: “Probable cause existed due to the defendant’s behavior and test results, justifying the warrantless arrest under IC 9-30-5.”

• Analysis: This exception aligns with the Fourth Amendment’s exigent circumstances doctrine. Delays in hit-and-run or intoxication cases could allow evidence to dissipate or suspects to flee, endangering public safety. The Moody decision confirms that probable cause must rest on specific, articulable facts, such as observed behavior or test results. This requirement prevents speculative arrests while enabling rapid response to serious traffic offenses.

IC § 35-33-1-1(a)(5): Battery Resulting in Bodily Injury (IC 35-42-2-1) or Domestic Battery (IC 35-42-2-1.3)

This exception allows officers to arrest on probable cause for battery causing bodily injury or domestic battery. Officers may use affidavits from individuals with direct knowledge to establish probable cause. The provision targets violent offenses, particularly in domestic settings, where immediate intervention protects victims.

• Case Law: In Adkisson v. State, 728 N.E.2d 175 (Ind. Ct. App. 2000), police responded to a battery complaint where neighbors reported being struck by the defendant. Probable cause was established under IC § 35-33-1-1(a)(5). However, the defendant retreated into her home, and officers entered without a warrant or exigent circumstances. The Indiana Court of Appeals reversed the defendant’s resisting law enforcement conviction. The court stated: “While the statute authorizes a warrantless arrest for battery, the Fourth Amendment requires exigent circumstances, such as hot pursuit or imminent danger, for home entry.”

• Analysis: This exception facilitates rapid intervention in violent situations, especially domestic cases where victims may be reluctant to report. The allowance of affidavits broadens the evidence base for probable cause, accommodating private settings. The Adkisson case integrates statutory authority with Payton v. New York, 445 U.S. 573 (1980), which prohibits warrantless home entries absent exigency. This ensures that while arrests are expedited, constitutional protections for home privacy remain intact, preventing police overreach.

IC § 35-33-1-1(a)(6): Invasion of Privacy (IC 35-46-1-15.1 or IC 35-46-1-15.3)

This exception permits arrests based on probable cause for violations of protective or no-contact orders, addressing risks of harassment or stalking.

• Case Law: In Albritton v. State, No. 19A-CR-2928 (Ind. Ct. App. 2020), police arrested the defendant in his home for invasion of privacy after he allegedly violated a protective order. The court upheld probable cause under IC § 35-33-1-1(a)(6) but reversed related convictions due to the warrantless home entry. The court found no exigent circumstances, such as an immediate threat, and stated: “The statute does not override the Fourth Amendment’s restrictions on home entry.”

• Analysis: This exception enables swift enforcement of protective orders, which is critical for victim safety in cases of harassment or stalking. The Albritton decision reinforces that probable cause alone does not justify home intrusions. It aligns with Payton, ensuring that statutory exceptions respect constitutional limits and prevent unauthorized entries into private residences.

IC § 35-33-1-1(a)(7): Carrying a Handgun Without a License (IC 35-47-2-1) or Counterfeit License (IC 35-47-2-22)

This exception, relevant before Indiana’s 2022 permitless carry law, allows arrests for unlicensed handgun possession or counterfeit licenses. After 2022, it applies to persons prohibited from carrying firearms.

• Case Law: In Pinner v. State, 74 N.E.3d 78 (Ind. 2017), the Indiana Supreme Court addressed a related issue, holding that merely observing a handgun does not justify detention without reasonable suspicion of a crime. The court stated: “Possession of a firearm alone does not provide reasonable suspicion for a stop, let alone probable cause for an arrest.” While not directly addressing arrests under this statute, Pinner informs its application.

• Analysis: This exception targets public safety concerns related to illegal firearms. The Pinner decision ensures that arrests require specific evidence of a violation, such as verification of prohibited status. This protects Second Amendment rights while allowing enforcement against unlawful possession, particularly in the context of Indiana’s evolving gun laws.

IC § 35-33-1-1(a)(8): Violating an Order Under IC 35-50-7 (Sex or Violent Offender Registration)

This exception allows arrests based on probable cause for failure to comply with sex or violent offender registration or residency restrictions.

• Case Law: In State v. Reinhart, 112 N.E.3d 705 (Ind. 2018), the Indiana Supreme Court discussed related registration violations. The court noted that probable cause for non-compliance justifies enforcement actions, though the case focused on other charges.

• Analysis: This exception addresses recidivism risks by enabling proactive arrests for non-compliance with registration requirements. The Reinhart case suggests that arrests must rely on concrete evidence, such as registration records or address verification, to avoid arbitrary enforcement. This ensures that the exception targets genuine threats while maintaining fairness.

IC § 35-33-1-1(a)(9): Undisclosed Transport of a Dangerous Device (IC 35-47-6-1.1)

This misdemeanor involves failing to declare weapons in checked airline baggage. The exception permits arrests based on probable cause, typically in airport settings.

• Case Law: No significant Indiana cases interpret this provision, likely due to its narrow application in aviation contexts.

• Analysis: This exception enhances aviation security by allowing rapid response to undeclared weapons. Probable cause must be based on reliable indicators, such as security screening results or passenger behavior. This prevents profiling or abuse while addressing transportation-related risks.

IC § 35-33-1-1(a)(10): Interference with Reporting a Crime (IC 35-45-2-5) Involving Domestic Violence

This exception requires probable cause that the person intentionally prevented the reporting of a domestic or family violence crime, as defined in IC 34-6-2-34.5.

• Case Law: Case law on this specific provision is limited, reflecting its narrow scope. However, it complements domestic battery exceptions by addressing coercive behaviors.

• Analysis: This exception targets tactics that silence victims, such as destroying communication devices. Probable cause must be specific, relying on evidence like victim statements or physical evidence of interference. This ensures that arrests are justified and prevents misuse in ambiguous situations.

IC § 35-33-1-1(a)(11): Theft (IC 35-43-4-2)

This exception permits warrantless arrests based on probable cause for theft, whether classified as a misdemeanor or felony. It facilitates responses to retail or property crimes.

• Case Law: In Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the Indiana Supreme Court upheld a theft-related arrest based on probable cause from store employee reports and surveillance footage. The court stated: “Probable cause was established by direct evidence, justifying the warrantless arrest under IC 35-33-1-1.”

• Analysis: This exception allows pursuit of suspects beyond direct observation, addressing crimes where evidence like stolen goods may be concealed. The Litchfield decision ensures that arrests rely on verifiable evidence, such as video or witness accounts. This prevents arbitrary arrests while enabling effective responses to theft.

IC § 35-33-1-1(a)(12)-(14): Immigration-Related Provisions

These provisions authorize arrests based on removal orders, detainers, or aggravated felony indictments/convictions.

• Case Law: In Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011), the federal district court issued a preliminary injunction against these provisions. The court found that they violate the Fourth Amendment by permitting arrests for non-criminal matters, such as immigration status. The court also held that they are preempted by federal immigration law. The court stated: “Section 19 authorizes arrests for matters that are not crimes, lacking due process protections.”

• Analysis: These provisions are unenforceable due to Buquer. They highlight tensions between state and federal authority over immigration enforcement. The ruling ensures that arrests adhere to constitutional standards, preventing detentions based on non-criminal status.

IC § 35-33-1-1(b): Federal Enforcement Officers

This subsection allows federal enforcement officers to arrest for state felonies in their presence, acting as state officers.

• Case Law: No major Indiana cases interpret this subsection, likely due to its limited application in state contexts.

• Analysis: This provision facilitates inter-agency cooperation for imminent felony threats. It maintains the presence requirement for felonies, ensuring consistency with state law. The lack of case law suggests rare use, but it supports seamless enforcement across jurisdictions.