                                                                  FILED
                                                             Jan 17 2017, 7:17 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Scott Knierim                                             Curtis T. Hill, Jr.
Danville, Indiana                                         Attorney General of Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Edward Taylor,                                            January 17, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A05-1608-CR-1720
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Stephanie LeMay-
Appellee-Plaintiff.                                       Luken, Judge
                                                          Trial Court Cause No.
                                                          32D05-1603-F5-31



Robb, Judge.




Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017             Page 1 of 9
                                 Case Summary and Issue
[1]   Police encountered Edward Taylor passed out behind the wheel of his running

      car. Suspecting he was intoxicated, they sought a search warrant for a blood

      draw. Because of statutory time constraints on conducting a chemical test, a

      photograph of the signed search warrant was sent by email to an officer’s cell

      phone. Taylor objected to the blood draw because the officer was unable to

      show him a physical copy of the search warrant and struggled with the officer

      before finally complying. After Taylor was charged with battery, resisting law

      enforcement, driving while suspended, and operating a vehicle while

      intoxicated, he filed a motion to suppress the blood draw evidence. The trial

      court denied the motion but certified its order for this interlocutory appeal in

      which Taylor raises the sole issue of whether the trial court erred in denying his

      motion to suppress. Concluding the trial court did not err in denying the

      motion to suppress because the blood draw was conducted pursuant to a valid

      search warrant, we affirm.



                             Facts and Procedural History
[2]   On March 18, 2016, at approximately 2:30 in the afternoon, Hendricks County

      Sheriff’s Deputy Dan Parrott approached a vehicle stopped along the road in

      which Taylor, the driver, appeared to be asleep or passed out. The vehicle was

      running and in gear and Deputy Parrott was unable to rouse the driver by

      knocking on the window. Deputy Parrott entered the unlocked car, put it in

      park, and was then able to wake Taylor, who exhibited signs of intoxication.

      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017   Page 2 of 9
      Taylor had a suspended license and an active warrant out of Brown County,

      Indiana. Sergeant Jennifer Brahaum of the Avon Police Department arrived on

      the scene and also observed signs of intoxication in Taylor. Taylor failed two

      field sobriety tests and consented to a chemical test. Sergeant Brahaum

      transported Taylor to a local hospital for a blood draw.


[3]   Once at the hospital, however, Taylor refused the blood draw so Sergeant

      Brahaum contacted the prosecutor’s office to obtain a search warrant. She

      submitted an affidavit of probable cause and a search warrant was signed by the

      court at approximately 5:15 p.m. As it was approaching three hours since

      Deputy Parrott first observed Taylor,1 the prosecutor’s office sent a photograph

      of the signed search warrant to Sergeant Brahaum’s cellphone via email.

      Sergeant Brahaum advised Taylor she had a search warrant to proceed with the

      blood draw and Taylor asked to see it. When Sergeant Brahaum showed

      Taylor the email on her phone, he protested that he needed to see a paper copy

      of the search warrant. Sergeant Brahaum told Taylor a hard copy of the search

      warrant would be provided to him or his attorney later. Taylor then refused to

      cooperate with the blood draw and a scuffle ensued, during which Sergeant

      Brahaum’s thumb was sprained and she received several scratches to her arms.




      1
        See Indiana Code section 9-30-6-2(c) (requiring a chemical test to be administered within three hours after a
      law enforcement officer has probable cause to believe a person committed an offense under Indiana Code
      chapters 9-30-5 or 9-30-15).

      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017                         Page 3 of 9
      Taylor finally complied and the blood draw was completed at approximately

      5:20 p.m.


[4]   Taylor was charged with battery, a Level 5 felony, resisting law enforcement, a

      Level 6 felony, and driving while suspended and operating a vehicle while

      intoxicated, both Class A misdemeanors. Taylor filed a motion to suppress the

      blood draw evidence, arguing the electronic copy of the search warrant in

      Sergeant Brahaum’s possession was insufficient to proceed with the blood

      draw. After a hearing which was not transcribed for this appeal, the trial court

      denied the motion to suppress but certified the order for interlocutory appeal.

      This court granted Taylor’s motion for interlocutory appeal on September 8,

      2016.



                                 Discussion and Decision
                                      I. Standard of Review
[5]   Our review of a trial court’s ruling on a motion to suppress is similar to our

      review of other sufficiency matters. Doctor v. State, 57 N.E.3d 846, 852-53 (Ind.

      Ct. App. 2016). The record must disclose substantial evidence of probative

      value supporting the trial court’s decision. Id. at 853. We do not reweigh the

      evidence. Id. We consider conflicting evidence most favorable to the trial

      court’s ruling, but unlike other sufficiency matters, we must also consider

      undisputed evidence favorable to the defendant. Robinson v. State, 5 N.E.3d

      362, 365 (Ind. 2014).


      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017   Page 4 of 9
                                         II. Validity of Search
[6]   The taking of a blood sample is a search. Birchfield v. North Dakota, 136 S.Ct.

      2160, 2173 (2016). The Fourth Amendment to the United States Constitution

      generally requires law enforcement officials to obtain a valid warrant before

      conducting a search or seizure. Garcia-Torres v. State, 949 N.E.2d 1229, 1237

      (Ind. 2011). Taylor asks whether the Constitution “requires a law enforcement

      officer to have a copy of the warrant in more than just a photo on a phone.”

      Appellant’s Brief at 9. He posits, without citation to relevant authority, that

      having a photograph of a search warrant is akin to “not having a warrant at

      all[,]” id. at 8, and his state and federal constitutional rights were violated when

      he was subjected to a forcible blood draw without being shown a physical copy

      of the search warrant. Taylor therefore claims the trial court erred in denying

      his motion to suppress.


[7]   Taylor does not challenge the existence of probable cause to issue the search

      warrant or the validity of the search warrant itself; he only challenges the form

      in which it was in Sergeant Brahaum’s possession.2 Whether Taylor is arguing

      the officer must have a physical copy of the search warrant for the purpose of

      serving it upon the person to be searched or whether he is arguing the officer




      2
        The search warrant itself does not appear in the record before us, but there appears to be no dispute that the
      search warrant of which Sergeant Brahaum had a photograph exists in paper form.

      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017                          Page 5 of 9
      must simply have a physical copy of the search warrant in hand at the time of

      the search, Taylor is mistaken.


[8]   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.3 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

      (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).4 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.




      3
        Taylor cites Indiana Code section 35-33-5-2 as the statute he believes is controlling with respect to the issue
      he raises. See Appellant’s Br. at 8. That section concerns the requirements for the affidavit upon which a
      search or arrest warrant may be issued. However, Taylor raises no issue regarding the affidavit supporting
      the search warrant in this case.
      4
       Federal Rule of Criminal Procedure 41(f)(1) does require the executing officer to give a copy of the warrant
      and a receipt for any property taken to the person after the search, however.

      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017                           Page 6 of 9
[9]   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 (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
       The statute allowing alternative means of applying for a search warrant was added in 1990 and amended in
      2014 to add the provision for sworn testimony by email or other electronic transmission.

      Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017                    Page 7 of 9
       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.


[10]   Taylor’s only objection is that Sergeant Brahaum did not have a physical piece

       of paper to show him when he asked to see it; he does not claim that the

       affidavit and search warrant were not properly retained. A photograph or PDF

       of a search warrant transmitted via email is as valid and effective as a paper

       copy. See Smith v. State, 311 P.3d 132, 140 (Wyo. 2013) (noting that while state

       constitutional requirements for a written affidavit showing probable cause for

       issuance of a warrant remain the same, “[w]hat has changed over time, because

       of technological advances, is the meaning of the word ‘written.’ Recorded

       sworn testimony, which if preserved, and from which a transcript may be

       produced, is as much a ‘writing’ in today’s world as was a quill-penned line on


       Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017   Page 8 of 9
       a piece of parchment two centuries ago. To conclude otherwise would ignore

       today’s technological realities, and would place form over substance.”). That

       Sergeant Brahaum had only an electronic copy of the search warrant at the time

       of the blood draw did not violate Taylor’s rights because the search warrant was

       otherwise valid.



                                                Conclusion
[11]   The trial court did not err in denying Taylor’s motion to suppress evidence

       because the evidence was obtained via a valid search warrant despite the fact

       the officer had in hand only an electronic copy at the time of the search. The

       trial court’s order is therefore affirmed.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 32A05-1608-CR-1720 | January 17, 2017   Page 9 of 9
