The Limits of Indiana’s Misdemeanor Arrest Statute

brandonmurphy • Jan 23, 2016

Law enforcement always has authority to arrest when there is an arrest warrant for the person, and when the police have probable cause to believe the person has committed or attempted to commit a felony. However, there are limits to law enforcement’s power to arrest for a misdemeanor if they do not actually observe the misdemeanor.

I.C. 35-33-1-1 enumerates a number of misdemeanors for which law enforcement may arrest so long as they have probable cause, but a number of the most common misdemeanors require that the police actually observe the commission of the misdemeanor or the attempted commission of the misdemeanor in order to arrest. Some misdemeanors which must be committed in the off icer’s presence to justify an actual arrest in Indiana are public intoxication, illegal possession or consumption of alcohol, possession of marijuana, possession of a controlled substance and possession of drug paraphernalia.

This can be important as it relates to an actual search of the person “incident to an arrest.” Law enforcement routinely search those that they arrest, including their pockets and containers. This is generally permitted for safety. However, if the police lack the authority to arrest, they lack the authority to conduct a search incident to an arrest and must justify any search they perform on some other basis, which is frequently difficult. For example, the State might attempt to justify the search on the basis of what is called a Terry frisk, but Terry frisks are limited to external pat-downs unless law enforcement feels something “immediately and apparently incriminating,” which they are permitted to retrieve. Any manipulation of the suspect item or any other searches of the insides of pockets and containers are generally not permitted under Terry. The purpose of a Terry frisk is intended to be limited to ensure safety; it is not for evidence gathering purposes.

Should you have been arrested for a misdemeanor not listed as an exception in I.C. 35-33-1-1 and should the police not have actually observed the commission or attempted commission of a misdemeanor, you may have a basis for the suppression of any evidence found as a result of the search, and you should contact an experienced attorney regarding a Motion to Suppress Evidence.

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Murphy Again Named to Rising Stars List

By brandonmurphy • 10 Mar, 2019
Managing Attorney Brandon Murphy was again named to the Super Lawyers’ Rising Star list in the Criminal Defense practice area. To be eligible to be a Rising Star, a candidate must be forty (40) years of age or younger or have fewer than ten (10) years experience in the practice of law. No more than [..] The post Murphy Again Named to Rising Stars List appeared first on Cannon Bruns & Murphy, LLC.

Murphy Named Rising Star by Super Lawyers

By brandonmurphy • 27 Feb, 2018
Managing Attorney Brandon E. Murphy was named as a Rising Star in Criminal Defense in the 2018 publication of Indiana Super Lawyers. To be eligible to be a Rising Star, a candidate must be forty (40) years of age or younger or have fewer than ten (10) years experience in the practice of law. No [..] The post Murphy Named Rising Star by Super Lawyers appeared first on Cannon Bruns & Murphy, LLC.

The Corpus Delicti Rule

By brandonmurphy • 17 Feb, 2017
A recent Court of Appeals decision, Shinnock v. State, 18A05-1606-CR-1258 (opinion can be found here: http://www.in.gov/judiciary/opinions/pdf/02091701jts.pdf), highlights the little-known Corpus Delicti Rule in the course of some very unfortunate facts. This case was tried in the Delaware County Circuit Court No. 2. It should be noted that this opinion is still subject to appeal by [..] The post The Corpus Delicti Rule appeared first on Cannon Bruns & Murphy, LLC.

Court of Appeals Panel Split on Intimidation Charge

By brandonmurphy • 25 Apr, 2016
On April 21, 2016, the Indiana Court of Appeals affirmed Victor Roar’s conviction for intimidation in part because they “conclude[d] that the majority in [an earlier case] did not correctly decide that question.” Roar v. State, 49A02-1506-CR-506 (Ind. Ct. App. 2016). The case the Roar Court was criticizing was C.L. v. State, 2 N.E.3d 798 (Ind. Ct. [..] The post Court of Appeals Panel Split on Intimidation Charge appeared first on Cannon Bruns & Murphy, LLC.

Lessons for Defense Counsel from Making a Murderer

By brandonmurphy • 28 Dec, 2015
One of the most popular recent shows on NetFlix is a series entitled “Making a Murderer,” concerning the investigation and murder trials of Defendants Steven Avery and Brendan Dassey. The “hook” of the show is that Defendant Avery had previously been convicted, and later exonerated, of a brutal rape. Avery spent eighteen (18) years in [..] The post Lessons for Defense Counsel from Making a Murderer appeared first on Cannon Bruns & Murphy, LLC.

The Mysterious Omnibus Date

By brandonmurphy • 25 Nov, 2015
Defendants in criminal matters are frequently confused by the “omnibus date” that the Court sets. Pursuant to statute, the omnibus date “shall” be set by the Court during the initial hearing, and the omnibus date is to be between 45 and 75 days after the initial hearing. See I.C. 35-36-8-1. So what is the omnibus [..] The post The Mysterious Omnibus Date appeared first on Cannon Bruns & Murphy, LLC.

Cleaning Criminal Records

By brandonmurphy • 08 May, 2015
One of the most under-utilized services the attorneys at Cannon Bruns & Murphy, LLC. provide is the process of cleaning an individual’s criminal record. Under certain circumstances, eligible convictions or arrests can be ordered expunged (or removed) from a person’s criminal history. The Order of Expungement is sent to the Indiana State Central Repository, law [..] The post Cleaning Criminal Records appeared first on Cannon Bruns & Murphy, LLC.
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