IN THE
Court of Appeals of Indiana
Kyle Mason Kerr, FILED
Sep 30 2026, 9:42 am
Appellant-Defendant
CLERK
Indiana Supreme Court
Court of Appeals
v. and Tax Court
State of Indiana,
Appellee-Plaintiff
September 30, 2026
Court of Appeals Case No.
26A-CR-431
Appeal from the Hendricks Superior Court
The Honorable Mark Smith, Judge
Trial Court Cause No.
32D04-2504-F5-54
Opinion by Judge Kenworthy
Judges May and Weissmann concur.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 1 of 21
Kenworthy, Judge.
Case Summary
[1] After a search of his cellphone, Kyle Mason Kerr was convicted in a bench trial
of seventeen counts of Level 5 felony possession of child pornography. 1 At the
time of his arrest, Kerr was serving probation in Hendricks County. As part of
his probation, he signed a document in which he waived “any and all rights as
to search and seizure” under the United States and Indiana Constitutions while
serving probation. Appellant’s App. Vol. 2 at 59. On appeal, Kerr raises several
issues tied to the allegedly unconstitutional search of his cellphone:
1. Is the Hendricks County probation waiver constitutionally
valid?
2. Was the search of his cellphone unreasonable under the
totality of the circumstances?
3. Did the search of his cellphone exceed the scope of the
warrant the trial court issued?
[2] We affirm.
1
Ind. Code § 35-42-4-4(d)(1) & (e)(1)(F) (2022).
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 2 of 21
Facts and Procedural History 2
[3] In June 2024, Kerr pleaded guilty in Clark County to possession of marijuana,
possession of paraphernalia, and operating a vehicle while intoxicated,
convictions for which the trial court sentenced him to a suspended jail sentence
and a term of probation. Kerr transferred his probation to Hendricks County
the following month, and Probation Officer Kevin McCleese (“PO McCleese”)
was assigned to his case. Upon transfer, Kerr signed a document titled “Fourth
Amendment Waiver of Rights as Condition of Probation and Home
Detention.” Id. The document stated in part:
Probationer . . . specifically waives any and all rights as to search
and seizure under the laws and Constitution of both the United
States and the State of Indiana during his/her period of
probation.
Probationer . . . agrees to submit to search and seizure of his/her
person, property, vehicle, residence, and any other property
under his/her control, at any time, by any Probation Officer, and
any Law Enforcement Officer accompanying the Probation
Officer, with or without suspicion.
***
2
We heard oral argument on September 8, 2026, at Indiana University Kokomo. We thank counsel for their
skilled presentations and all those present for their hospitality and thoughtful questions.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 3 of 21
Probationer . . . is informed of his/her Fourth Amendment rights
and hereby knowingly and intentionally waives those rights to
the extent provided in this waiver as a condition of probation.
Id.
[4] During a “standard probation appointment” in March 2025, Kerr handed his
cellphone to PO McCleese because he needed help replying to daily “text
reminders” pursuant to his drug testing obligations. Tr. Vol. 2 at 34. As PO
McCleese rendered assistance, he “stumbled across what appeared to [him] to
be child pornography.” Id. at 35. PO McCleese did not question Kerr about
the images; he “just kind of played coy” and returned the cellphone. Id. After
Kerr completed the appointment, PO McCleese contacted Probation Officer
Chad Koebcke (“PO Koebcke”), who typically supervised sex offenders in the
county. The two officers discussed the incident, and PO Koebcke agreed to
investigate the matter further during Kerr’s next appointment.
[5] Kerr arrived at PO McCleese’s office on April 9 for another probation meeting.
PO Koebcke joined them sometime after the appointment began. PO Koebcke
asked Kerr for his cellphone, which he had to retrieve from his vehicle. Kerr
handed the phone to PO Koebcke, who asked Kerr for the passcode needed to
access the device. Kerr complied. PO Koebcke searched the contents of the
cellphone for about fifteen minutes, until he came across a locked folder titled
“safe folder.” Id. at 48. PO Koebcke asked Kerr for the folder’s passcode, and
Kerr gave it to him. Once he accessed the folder, PO Koebcke observed several
images of nude, seemingly underage girls. PO Koebcke seized Kerr’s
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 4 of 21
cellphone. He then contacted Detective Samuel Chandler of the Hendricks
County Sheriff’s Office, who instructed PO Koebcke to place it in airplane
mode and shut it off.
[6] Detective Chandler submitted a probable cause affidavit asking the trial court to
“issue a warrant to seize, search, download, copy, and inspect the electronic
data” stored on Kerr’s cellphone. Appellant’s App. Vol. 2 at 84. After finding
probable cause existed, the court issued a search warrant authorizing the
“necessary and proper assistance to enter into” Kerr’s phone. Id. at 82.
Pursuant to the warrant, Detective Chandler and a digital forensic analyst with
Hendricks County searched the device. An initial search with the software
available at the county revealed several images of child pornography and
various “path files” associated with the images. Tr. Vol. 2 at 73. The phone
was afterward transported to the Indiana State Police Laboratory “to see if they
had software” better suited for searching Kerr’s phone model. Id. at 60.
Detective Chandler filed a warrant return indicating Kerr’s cellphone had been
seized. At the state laboratory, analysts extracted about 1,500 image and video
files depicting child pornography.
[7] The State charged Kerr with seventeen counts of possession of child
pornography. 3 Kerr filed a motion to suppress before trial, alleging the search
of his cellphone and its data violated his rights under the federal and state
3
From the evidence extracted, Detective Chandler selected seventeen images of “nude children having sex
acts performed on them” for use as exhibits during trial. Id. at 92–93.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 5 of 21
constitutions. More specifically, Kerr argued the Hendricks County probation
waiver was constitutionally deficient under the Fourth Amendment, and the
search of his phone was unreasonable under the totality of the circumstances.
See Appellant’s App. Vol. 2 at 66–75. He asked the court to suppress the evidence
extracted from the search of his cellphone. The State opposed the motion,
arguing Kerr consented to the warrantless and suspicionless searches when he
signed the waiver. See id. at 60–65, 77. The trial court denied Kerr’s motion. 4
[8] Following a bench trial, the court found Kerr guilty as charged. The trial court
imposed an aggregate sentence of nine years, with five years suspended.
Standard of Review
[9] We generally review decisions on the admissibility of evidence for an abuse of
discretion. Ramos-Osario v. State, 280 N.E.3d 784, 789 (Ind. 2026). But where a
defendant’s challenge to the decision is based on an argument which challenges
the constitutionality of the search or seizure of evidence, it raises a question of
law which we consider de novo. Id. (citing Guilmette v. State, 14 N.E.3d 38, 40–
41 (Ind. 2014)). We can affirm the trial court “on any basis supported by the
record.” Id. (quoting Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023)).
4
Kerr also challenged the search of his cellphone that occurred after Detective Chandler filed the warrant
return. The trial court requested and considered additional briefing on this issue before final ruling. See id. at
86–88, 121–24; Tr. Vol. 2 at 93, 104.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 6 of 21
The Hendricks County waiver is constitutionally valid.
[10] Kerr first argues the Hendricks County waiver he signed is invalid under the
Fourth Amendment to the United States Constitution. According to Kerr, the
waiver “obliterates the constitutional rights of a probationer and extinguishes
any expectation of privacy, regardless of what is searched.” Appellant’s Br. at 8.
Kerr argues the waiver is “both overbroad and ambiguous” and he therefore
asks this Court to remand “for retrial without the illegally obtained evidence[.]”
Id. at 9, 19.
[11] The Fourth Amendment to the United States Constitution provides, “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated[.]” The basic purpose
of that Amendment is “to safeguard the privacy and security of individuals
against arbitrary invasions by government officials.” Chatrie v. United States, 609
U.S. ---, 146 S.Ct. 2193, 2204 (2026) (citations omitted). “The touchstone of
the Fourth Amendment is reasonableness, and the reasonableness of a search is
determined by assessing, on the one hand, the degree to which it intrudes upon
an individual’s privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.” United States v. Knights,
534 U.S. 112, 118–19 (2001) (quotation marks and citation omitted). When
police conduct a search to discover evidence of criminal wrongdoing,
reasonableness typically requires a judicial warrant. Riley v. California, 573 U.S.
373, 382 (2014). Yet consent is a well-established exception to the warrant
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 7 of 21
requirement. See United States v. Coleman, 154 F.4th 558, 561 (7th Cir. 2025),
cert. denied; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
[12] More broadly, the Supreme Court’s “general Fourth Amendment approach”
examines the totality of the circumstances to determine whether a search is
reasonable. Samson v. California, 547 U.S. 843, 848 (2006) (citation omitted).
And the Court has recognized probationers have a diminished expectation of
privacy. Knights, 534 U.S. at 119. That’s because probation is only one point
on a “continuum of possible punishments ranging from solitary confinement in
a maximum-security facility to a few hours of mandatory community service.”
Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)).
[13] Simply put, probationers do not enjoy the “absolute liberty to which every
citizen is entitled.” Id. (citation omitted). “Just as other punishments for
criminal convictions curtail an offender’s freedoms, a court granting probation
may impose reasonable conditions that deprive the offender of some freedoms
enjoyed by law-abiding citizens.” Id. The Supreme Court has also observed
states have a strong interest in “integrating probationers back into the
community and combating recidivism.” Samson, 547 U.S. at 849. To that end,
a state need not “ignore the reality of recidivism or suppress its interests in
‘protecting potential victims of criminal enterprise’ for fear of running afoul of
the Fourth Amendment.” Id. (quoting Knights, 534 U.S. at 121).
[14] Indiana has similarly established the parameters of probation and circumscribed
the liberty afforded probationers. See generally Prewitt v. State, 878 N.E.2d 184,
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 8 of 21 188 (Ind. 2007) (“Probation is a matter of grace left to the trial court discretion,
not a right to which a criminal defendant is entitled.”); see also Ind. Code § 35-38-2-1 (2022) (conditions of probation); I.C. § 35-38-2-3 (2015) (violations of
conditions of probation). In State v. Vanderkolk, the Indiana Supreme Court
considered whether a probationer or community-corrections participant may
consent to future warrantless searches of their premises without reasonable
suspicion. 32 N.E.3d 775, 775 (Ind. 2015). At issue in Vanderkolk was language
from a handbook the community-corrections participant signed, where he
waived his Fourth Amendment rights and consented to searches of his
residence. Id. The Court concluded such a waiver is valid where (1) the search
condition is clearly expressed; and (2) the probationer was unambiguously
informed of the conditions of his release. See id. at 778. “The crux of the
Vanderkolk holding is that a probation search need not be supported by
reasonable suspicion and may be predicated solely upon a valid search
condition contained in the conditions of probation.” Hodges v. State, 54 N.E.3d
1055, 1059 (Ind. Ct. App. 2016); 5 see also State v. Terrell, 40 N.E.3d 501, 506
(Ind. Ct. App. 2015) (applying Vanderkolk and concluding defendant
surrendered “any and all of his search and seizure rights” by signing a
probation waiver).
5
Judge Vaidik wrote a concurring opinion rejecting application of Vanderkolk to all probationers. Id. at 1061. However, she concluded Hodges’ challenge to the search failed because reasonable suspicion existed to search his property. Id. at 1061–62.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 9 of 21 [15] Along similar lines, in State v. Ellis, our Supreme Court considered whether a
defendant serving a sentence on home detention who waived the “right against
search and seizure” was clearly informed his property could be searched
without reasonable suspicion. 167 N.E.3d 285, 286 (Ind. 2021). The Court
concluded he was, holding that an individual who waives his rights against
search and seizure inevitably waives the right to be free from search and seizure
absent reasonable suspicion. Id. 6 As the Court explained, “neither probable
cause nor reasonable suspicion is required if a person on probation or home
detention unambiguously consents to a warrantless and suspicionless search.”
Id. at 287 (citing Vanderkolk, 32 N.E.3d at 779). “Additional language
specifying that the defendant may be searched without reasonable suspicion is
simply unnecessary.” Id. at 288.
[16] In this case, Kerr transferred his probation to Hendricks County. As part of the
transfer process, Kerr signed a Fourth Amendment Waiver of Rights as
Condition of Probation and Home Detention. Pursuant to this document, he
agreed to waive “any and all rights as to search and seizure under the laws and
Constitution of both the United States and the State of Indiana[.]” Appellant’s
App. Vol. 2 at 59. He further agreed to submit to search and seizure of his
“person, property, vehicle, residence, and any other property” under his
control. Id.
6
Because the defendant in Ellis was on home detention, the Court indicated it was limiting its holding “to
that context only.” Id. at 286 n.1.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 10 of 21 [17] First, the waiver Kerr signed clearly expressed the conditions of his probation.
See Vanderkolk, 32 N.E.3d at 778. Second, Kerr’s signature on the document
demonstrates he was unambiguously informed of the rights he was
surrendering. See id. When Kerr waived his rights, the waiver encompassed the
right against search and seizure absent reasonable suspicion. See Ellis, 167
N.E.3d at 288. Therefore, we conclude the waiver Kerr signed is consistent
with the Fourth Amendment. 7
[18] Kerr does not dispute he willingly signed the waiver. Instead, he argues the
waiver “eliminated all expectation of privacy,” even though his “underlying
offense had nothing to do with cell phone usage or pornography[.]” Appellant’s
Reply Br. at 5. But courts have long recognized probationers like Kerr have a
diminished expectation of privacy. See United States v. Dixon, 137 F.4th 592, 606
(7th Cir. 2025) (citing Knights, 534 U.S. at 119–20), cert. denied. As a
probationer, Kerr does not enjoy the absolute liberty to which every citizen is
entitled. See Samson, 547 U.S. at 848–49. As our Supreme Court explained,
“probation, like parole, involves the conditional release of a prisoner who
would otherwise be subject to unrestricted searches during his or her
7
We acknowledge Ellis limited its holding to the context of home detention. Nevertheless, in both Terrell and
Hodges, this Court rejected challenges by probationers not on home detention who signed search and seizure
waivers as conditions of their probation. And in Ellis, the Court discussed Hodges at length without
disapproval. See id.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 11 of 21
incarceration[.]” Vanderkolk, 32 N.E.3d at 779. 8 In short, Kerr’s diminished
expectation of privacy—coupled with a valid waiver of his rights against search
and seizure without reasonable suspicion—convince us no Fourth Amendment
violation occurred.
The search of Kerr’s cellphone was reasonable under the
totality of the circumstances.
[19] Kerr next argues the search of his cellphone violated the Indiana Constitution
because it was unreasonable under the totality of the circumstances. See
Appellant’s Br. at 12 (citing Litchfield v. State, 824 N.E.2d 356 (Ind. 2005)).
[20] Article 1, Section 11 of the Indiana Constitution states, “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable search or seizure, shall not be violated[.]” Although Section 11 is
worded nearly identically to its federal counterpart, “we interpret it
independently and ask whether the State has shown that a particular search or
seizure was reasonable based on the totality of the circumstances.” Ramirez v.
State, 174 N.E.3d 181, 191 (Ind. 2021). The reasonableness of a search or
seizure turns on a balance of: “1) the degree of concern, suspicion, or
knowledge that a violation has occurred, 2) the degree of intrusion the method
8
Indiana applies the Samson Court’s holding to probationers, “in effect lowering a probationer’s privacy
expectation to that of a parolee.” United States v. Wood, 16 F.4th 529, 536 n.1 (7th Cir. 2021) (citing
Vanderkolk, 32 N.E.3d at 779), cert. denied.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 12 of 21
of the search or seizure imposes on the citizen’s ordinary activities, and 3) the
extent of law enforcement needs.” Litchfield, 824 N.E.2d at 361.
[21] As an initial matter, the State argues a separate Litchfield analysis is not required
because the only inquiry remaining “when a probationer has waived his Section
11 rights against suspicionless searches is whether the search was executed in a
reasonable manner, not whether the search itself was reasonable[.]” Appellee’s
Br. at 21 (citing Terrell, 40 N.E.3d at 506). In Terrell, a panel of this Court
questioned whether a separate Litchfield analysis was required in assessing the
reasonableness of a probation search given “Vanderkolk’s expansive
endorsement of warrantless and suspicionless probation searches under the
Fourth Amendment[.]” 40 N.E.3d at 506. And in Hodges, the reviewing panel
declined to conduct a separate Litchfield analysis because “lack of reasonable
suspicion is no longer a legitimate objection to the constitutionality of Indiana
probation searches pursuant to Vanderkolk[.]” 54 N.E.3d at 1060. As we have
already determined Kerr waived his rights against search and seizure even
without reasonable suspicion, we too conclude a separate analysis under
Litchfield is unnecessary.
[22] Even without a separate Litchfield analysis, however, Kerr contends the manner
of the “search and seizure was itself unreasonable.” Appellant’s Reply Br. at 5.
PO McCleese testified he “stumbled across what appeared to [him] to be child
pornography” while helping Kerr respond to drug testing reminders. Tr. Vol. 2
at 35. He shared his observations with PO Koebcke, who agreed to investigate
further during Kerr’s next appointment. At the appointment, Kerr retrieved his
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 13 of 21
cellphone from his vehicle and handed it to PO Koebcke. He also provided the
cellphone’s password upon request. PO Koebcke searched the phone for
approximately fifteen minutes before finding a password-protected folder which
contained images of nude, underage girls. A subsequent forensic extraction
revealed additional evidence of child pornography.
[23] Even setting aside Kerr’s diminished rights as a probationer, police suspected he
possessed child pornography because his probation officer encountered
evidence of it during a routine appointment. Kerr provided PO Koebcke with
the necessary passwords to unlock the phone and the “safe folder” without
force or coercion. The probation officers conducted a brief search to confirm
their suspicions that the phone contained child pornography, then contacted
law enforcement for assistance. Law enforcement then obtained a warrant.
Under the totality of the circumstances, the search was executed in a reasonable
manner.
The search of Kerr’s cellphone did not exceed the scope of the
warrant.
[24] Finally, Kerr argues police exceeded the scope of the warrant issued. See
Appellant’s Br. at 16–18. He argues the warrant identified the phone but
“provided no further authorization to do anything” such as being able to
“download, save, or analyze any data.” Id. at 16. Kerr claims the waiver
contained “no language regarding a seizure of the cell phone’s contents[.]” Id.
Kerr continues, “the warrant obtained . . . for [his] cell phone was for the
seizure—since [officers] already believed they had the authority to conduct a
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 14 of 21
search.” Id. Kerr concludes the request for a warrant implies officers believed
they lacked “authority for an extraction.” Id.
[25] Both the Fourth Amendment and Article 1, Section 11 require search warrants
based on probable cause. U.S. Const. amend. IV; Ind. Const. art. 1, § 11; see
also I.C. § 35-33-5-2 (2014) (specifying information which must be included in
an affidavit supporting each warrant). “Probable cause exists when the
supporting affidavit sets forth sufficient facts to induce a reasonably prudent
person to believe that a search will uncover contraband or evidence of a crime.”
United States v. Fifer, 863 F.3d 759, 764 (7th Cir. 2017) (quotation marks and
citation omitted), cert. denied; see also Banks v. State, 231 N.E.3d 853, 860 (Ind.
Ct. App. 2024) (describing probable cause as a “fluid concept” to be decided
“on the facts of each case”), trans. denied.
[26] The duty of the reviewing court is to determine whether the warrant-issuing
judge had a “substantial basis” for concluding probable cause existed. Bunnell v.
State, 172 N.E.3d 1231, 1235 (Ind. 2021) (citation omitted). “When a
magistrate concludes that an affidavit establishes probable cause, we accord that
determination great deference.” Heuring v. State, 140 N.E.3d 270, 273 (Ind.
2020) (citing United States v. Leon, 468 U.S. 897, 914 (1984)).
[27] In addition to probable cause, a warrant “must contain a particular description
of the place to be searched and the persons or things to be seized.” Carter v.
State, 105 N.E.3d 1121, 1129 (Ind. Ct. App. 2018), trans. denied. Warrants may
incorporate probable cause affidavits to satisfy this particularity requirement.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 15 of 21
Price v. State, 119 N.E.3d 212, 224 (Ind. Ct. App. 2019), trans. denied. “A
warrant may be thought ‘too general’ only if some more-specific alternative
would have done better at protecting privacy while still permitting legitimate
investigation.” United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018), cert.
denied. The description in a search warrant should be as particular as
circumstances allow. Banks, 231 N.E.3d at 863.
[28] Here, the search warrant stated:
You are AUTHORIZED and ORDERED, in the name of the
State of Indiana, with the necessary and proper assistance to
enter into or upon the Motorola Moto G, model XT24117D,
[International Mobile Equipment Identity Number . . .] cell
phone that was in care, custody, and control of . . . Kerr on April
9, 2025. The cell phone is currently located at the Hendricks
County Sheriff’s Office[.]
Appellant’s App. Vol. 2 at 81. The affidavit on which the judge found probable
cause was attached to and incorporated into the warrant. See id. In that
document, Detective Chandler averred:
On April 9, 2025, I was contacted by Hendricks County
Probation Officer Chad Koebcke. He explained that [Kerr] . . .
was at his office. [. . . .]
Officer Koebcke explained that Kerr was on probation and part
of his provisions were that he was subject to the search of his cell
phone.
. . . Officer Koebcke performed a routine screen of Kerr’s cell
phone. . . . He said he opened a folder on the phone titled “safe
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 16 of 21
folder[.”] When he opened that folder, he found an estimated
total of 10-12 images of nude juveniles. He believed the nude
juveniles were under the age of ten (10).
Id. at 83. Detective Chandler asked the trial court to “issue a warrant to seize,
search, download, copy, and inspect the electronic data stored” on Kerr’s
cellphone. Id. at 84.
[29] Based on the above, the State argues the search warrant authorized police to
“enter into or upon” Kerr’s cellphone—a device identified by make, model, and
identity number—and to obtain the “necessary and proper assistance” to do so.
Appellee’s Br. at 23 (quoting Ex. Vol. 1 at 34). We agree. The warrant indicated
the cellphone’s location, and clarified the device was under Kerr’s control when
it was confiscated. The warrant also incorporated the probable cause affidavit,
in which Detective Chandler specifically requested permission to extract data
stored on the cellphone.
[30] Because the warrant authorized search and seizure of Kerr’s cellphone, there
was an implicit directive for law enforcement to search the device for evidence
of his alleged possession of child pornography. See Fifer, 863 F.3d at 766 (“We
think it generally makes more sense to read a search warrant’s command to
seize an electronic device as including a concomitant directive to search that
device’s digital contents.”); Bishop, 910 F.3d at 337–38 (comparing the search of
documents on a cellphone for incriminating evidence pursuant to a warrant to
searching folders in filing cabinets for the same, and concluding both may be
searched).
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 17 of 21 [31] In a related argument, Kerr maintains “[t]he filing of the warrant return in this
matter ends the authority of the warrant.” Appellant’s Br. at 17. Once the phone
was seized, Kerr continues, “[n]o further search or seizure of data was
authorized[.]” Id. (citing I.C. § 35-33-5-7(f) (2020)).
[32] Indiana Code Section 35-33-5-7 provides in part:
(b) Except as provided in subsection (f), a search warrant must
be:
(1) executed not more than ten (10) days after the date of
issuance; and
(2) returned to the court without unnecessary delay after
the execution.
***
(f) Notwithstanding section 4 of this chapter, a warrant
authorizing a search, testing, or other analysis of an item,
tangible or intangible, is deemed executed when the item is
seized by a law enforcement officer. A return of a warrant
authorizing a search, testing, or other analysis of an item is
sufficient if the return contains a statement indicating that the
item was seized by a law enforcement officer.
[33] In the event the warrant is executed by the seizure of property, “the officer who
executed the warrant shall make a return on it directed to the court or judge,
who issued the warrant, and this return must indicate the date and time served
and list the items seized[.]” I.C. § 35-33-5-4(1) (2020)). Section 35-33-5-4 “does
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 18 of 21
not require that the return be filed within any specific period of time.” Shepherd
v. State, 157 N.E.3d 1209, 1221 (Ind. Ct. App. 2020), trans. denied.
[34] In Brown v. Eaton, a panel of this Court clarified the meaning of “executed” in
Section 35-33-5-7 following a legislative amendment incorporating subsection
(f) to the statute. 164 N.E.3d 153, 164–65 (Ind. Ct. App. 2021), trans. denied.
Applying the amendment retroactively, the panel concluded subsection (f) was
a remedial measure intended to clarify that a search warrant is considered
“executed” when officers seize the items described in the search warrant. Id. at
165. As the Court explained, “retroactivity serves the purpose of efficiency
because it eliminates the need for law enforcement to continue reapplying for
search warrants while analyzing large troves of evidence.” Id.
[35] Here, an initial search of Kerr’s cellphone with the software available in
Hendricks County revealed various images of child pornography. A county
forensic analyst then transported the phone to the state police laboratory, where
analysts extracted approximately 1,500 image and video files depicting child
pornography. Detective Chandler filed a warrant return after the initial search,
in which he noted the date and time the warrant was served and the device
seized. See Appellant’s App. Vol. 2 at 82. The warrant return complied with the
statutory requirements. See I.C. § 35-33-5-4(1); I.C. § 35-33-5-7(f). Further,
there is no statutory requirement that the return be filed within any specific
period of time, see Shepherd, 157 N.E.3d at 1221, and police cannot always
anticipate the difficulty in de-encrypting a device after seizure, see Brown, 164
N.E.3d at 165. In sum, the filing of the warrant return did not foreclose the
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 19 of 21
subsequent extraction of evidence of child pornography at the state police
laboratory.
[36] Under these circumstances, officers did not exceed the scope of the warrant. 9
Conclusion
[37] Kerr waived his rights against search and seizure of his cellphone and its
contents absent reasonable suspicion. The search of Kerr’s phone was not
unreasonable, and law enforcement acted within the scope of the warrant
issued.
[38] Affirmed.
May, J., and Weissmann, J., concur.
ATTORNEYS FOR APPELLANT
Grace Atwater
Joshua Moudy
Kammen & Moudy, LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
9
Kerr also argues the Hendricks County waiver does not extend to cellphone data because data cannot be
considered property. See Appellant’s Br. at 9–11. He suggests cellphones and their data should have
heightened privacy protections. See id. at 14. Because we conclude the waiver Kerr signed is constitutionally
valid and covers his cellphone and its contents, we decline to consider Kerr’s additional claims.
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 20 of 21 Ellen H. Meilaender
Supervising Deputy Attorney General
Michelle Hawk Kazmierczak
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 26A-CR-431 September 30, 2026 Page 21 of 21