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Indianapolis Criminal & OWI Lawyers > Blog > Fourth Amendment > Criminal Law Podcast – Tales from the Brown Desk – Episode 2

Criminal Law Podcast – Tales from the Brown Desk – Episode 2

Weekly Criminal Law podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul mouth attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised.

Episode 2 – Discussion about criminal law misconception: Miranda Rights, how charges change after being arrested, Indiana’s Governor Holcomb vetoing tenant rights bill, penalties for violating Indiana’s stay-at-home order due to the coronavirus (Covid 19), collection of cell phone location data to track adherence of stay-at-home orders; calls for Governor Holcomb to release low level offenders from jail, Supreme Court ruling: Carpenter v. United States and cops needing warrant to collect data from cell phones, and Florida man.

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Podcast Transcript

Jake Rigney – It’s Friday afternoon. We’ve turned off the phone, locked the door and thereby guaranteed that no one will try to give us the Terra Rhona because it’s time for another edition of our weekly podcast, Tales From the Brown Desk. I’m Jake Rigney of Rigney Law LLC. With me, as usual, is my law partner, wife, and Nestle Water Rights Truther, Kassi Rigney. Our host is Teri Ulm. Friendly reminder, Tales from the Brown Desk is a free flowing conversation involving two foul mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and recently vetoed house bills. It almost certainly is unsuitable for children. Listener discretion is advised. Here’s Teri.

Teri Ulm – Hello, everyone. Hello, Jake and Kassi.

Jake Rigney – Hello. Welcome to the coronavirus addition.

Teri Ulm – We’ll be talking coronavirus.

Jake Rigney – Yeah. Everyone must think we’re like the worst bosses in the world because we’re sitting here doing a podcast with our employee during the stay home…

Teri Ulm – We’re six feet apart.

Kassi Rigney – We’re pretty close… six feet.

Jake Rigney – We’re six feet apart, and we were all coming in today for one reason or another anyway, so we figured while we were sitting here let’s talk about what everybody wants to talk about, legislation.

Miranda Rights – Do cops have to read rights when they make an arrest?

Teri Ulm – Actually, we’re gonna start with a listener question from our first podcast. Umm, Jake, you mentioned your number two misconception when it comes to criminal law. And that was… the number 2 one was, when asking an undercover cop if he was a cop, do they have to tell you? And so the listener question is, what is your number one misconception?

Jake Rigney – Oh, what is my number one misconception? Um oh, my number one misconception is that when the police arrest you, they have to read you your rights.

Teri Ulm – They don’t?

Jake Rigney – No, no, they do not have to read you your rights. But I don’t know if it’s from Law and Order or from some other ah type of media or something. Somebody’s got it in their head whenever the cuffs go on they have to read you your Miranda rights, and if they don’t, your whole case is gonna get thrown out next time you see the judge. And that is definitely not the case. But it’s a myth that seems to persist. Um and I don’t know why, but that’s that’s my number one misconception. The police do not have to Mirandize you when they arrest you. That’s the number one misconception.

Teri Ulm – Do they often, though?

Kassi Rigney – Well, they often times do, but Miranda is related to statements you make to the police, and that’s it. A violation of Miranda just prevents those statements being used against you. So I mean, they do if they think they’re going to talk to you and they think that they want their in a circumstance where they would have to. Ah, if they want to use that in court, because there’s sometimes they don’t have to read you your rights, and they could use those statements. But if you’re in police custody and being interrogated, they have to read your rights. Um, so I mean, the police want your confession to be usable certainly. Um, that’s what I mean I tell potentials all the time. I mean, there’s almost no evidence that’s more powerful against you than your own words. So, yeah, they often do read it a big net, and particularly if they don’t understand the requirements, the safe thing for the officer to do is to read you your rights.

Jake Rigney – Yeah, but they don’t have to. So, like, if if they already have probable cause to arrest you and they already know they’re going to arrest you and they’re not gonna ask any questions, they don’t have to read you your rights. They just slap the cuffs on, throw you in the back of a car and down to the jail you go. Um, they also don’t have to read you your rights if they’re going to question you as long as you’re not in custody. So if you’re out there on the side of the road or you know you’re walking around in the police encounter you and that they start asking you questions you don’t have to answer. But they don’t have to read you your rights either. That’s… Their just allowed to ask you questions if you’re not in custody. Now if they’ve got you in cuffs or they’ve got a hold of your driver’s license, or there’s some other reason you would not feel free to leave, and they’re going to interrogate you, then they have to read you your rights first.

Kassi Rigney – Well, to use those statements,

Jake Rigney – Yeah, sometimes they’re not going to use them.

Kassi Rigney – Because that’s the thing. I mean, it’s just like you can’t say you didn’t read me my rights. I’m you know, I’m not gonna talk to you. You have other reasons why you don’t have to talk to them. But, um, it’s it’s only… The only thing it does if they want to use your statements against you in court, and a failure to meet that as those statements are out. Not other evidence, just your admissions.

Jake Rigney – Yeah, that’s the other thing, right? If they if they messed up somehow and they didn’t, um, they didn’t read you your rights, all they do is they can’t use your statement. So if they already still have other evidence that you’re guilty, they’ll still go to trial even if you get the statement thrown out. So sometimes just because you have a good Miranda issue doesn’t mean that you’re definitely gonna win, because you can still lose, even after you win the Miranda argument, you could still lose the trial.

Should you talk to the police?

Teri Ulm – I’m assuming a lot of people would try to explain their situation and try to talk their way maybe out of it.

Jake Rigney – Yes.

Teri Ulm – I’m assuming criminal defense attorneys wouldn’t recommend this.

Kassi Rigney – My default is do not talk to the police. People, you’re very right. They want to explain their behavior, justify their behavior… The problem is, no matter how well they think they know the law, I bet you the cop knows better. And generally what I see people may deny one crime and not realize they’re admitting to another crime. I’ve seen that. Another one, even a denial. As a former prosecutor, sometimes a denial. Okay, you denied it. Well, did you put your put yourself in the place and time that we’re saying that you were there? Okay. You just gave me part of my case. Thanks. Then better yet, the you know, the second catching someone in a lie is second only to their confession. Because if you if you are caught in a provable lie, you know, of course, the state’s going to say, well you know, you’re lying to cover up something. Um, so I mean they’re skilled interrogators and off the cuff, you know, just statements of a layperson, I do not recommend it. Um, you do not give a layperson statement over to skilled orders for months. That’s how lawyers twist your words. That’s how they, I mean that’s a skill. That’s what we do. So I don’t give him any evidence is my my position.

Jake Rigney – Yeah, I mean, there are… I can imagine situations where it’s okay to talk to the police, right? If maybe there is some kind of just obvious misunderstanding that you can clear up with them right away by talking to them. But that assumes that they’ll believe you. And that’s not always true. In fact, it’s It’s probably not usually true. Um, but it’s always hard to say for sure, and that’s why defense attorneys, I think, almost always default to talk to an attorney whose job it is to protect you before you agree to talk to the police. Because the attorney that you talked to, if they have any experience, they’ll know whether it’s actually a good idea or a bad idea to go talk. And they will think of things that a layperson just simply…. It just won’t ever occur to them. Um, so that is that’s typically what we say. I have a very good imagination, so I can always imagine situations that would cut against my advice, but usually it’s just a much better idea to talk to an attorney first.

Teri Ulm – Are there certain words or phrases that you should use to state that you want an attorney or try to avoid?

Jake Rigney – Well, it reminds me of that “I want a lawyer dawg case. Uh, you remember that one, Kassi? Where they… Oh, some there was… I think it was in Louisiana, a guy, instead of saying “I want a lawyer” he said “I want a lawyer, dawg”. And they said that was that was ambiguous. That he might have been talking about ah, a canine attorney. Which doesn’t exist. And so that wasn’t an unequivocal assertion of his right to an attorney. So the police conduct of continuing to interrogate him after he asked for an attorney was allowed because that wasn’t unequivocal. Um, so, yeah, “I want a lawyer dawg” is not good enough. Apparently, um, which is silly.

Teri Ulm – Very much so.

Kassi Rigney – Some racism going on there?

Jake Rigney – Or just a lack of general understanding, yeah, I don’t know.

Kassi Rigney – I mean, it seems pretty… of the basic English. Um, I mean, that’s Louisiana has said?

Jake Rigney – If I remember, right. Yeah, I think it was in Louisiana.

Kassi Rigney – Well, I don’t know about your law school, but I was always told if you’re gonna look at other states’ law, never look at Louisiana or California.

Jake Rigney – That’s true. Although they tell you not to look at Louisiana’s because it doesn’t make sense. It’s not like any other states’ laws because they were a French protectorate. I think, before they became a state. And so most of their laws are written in weird, like French versions instead of the English versions of laws that were all used to. And so they don’t they don’t work the same way or they don’t read correctly. And so that’s why I think law schools tell you not to ever look at Louisiana. And boy, we’ve got way off topic. Sorry.

How arrest charges change

Teri Ulm – So my next question is, after coming to a recent realization that, um, people could be arrested and told that they’re being arrested for something, but when they go to court, they’re charged with something else. So how does that happen?

Kassi Rigney – Well, the process is two fold. The police investigate and arrest on a probable cause standard. They’re the first stage. They take the results of their investigation and turn it over to the state. The where you’re talking about having a prosecuting attorney. It’s actually an attorney that decides, that looks at that, and says what crimes have been committed and what they want to charge. Now to charge, you also only need probable cause. But for a prosecutor, the end of the road is beyond a reasonable doubt. So you don’t want to just charge a bunch of probable cause only cases. because they’re all gonna be terrible, and you’re gonna lose. Um, but people don’t seem to understand that the police don’t actually get to decide what people are charged with. And they don’t understand that they’re all the same; it’s a multi step. Um, so you know, if a police officer can put together an investigation, turn it over, you could get charged higher, you get charged, less. You can get charged with something completely different, if the prosecutor believes the evidence is there for a different charge.

Jake Rigney – And the police sort of exacerbate this misconception or this confusion by saying “I’m charging you with whatever” they end up charging, strangulation, domestic battery murder, whatever. And I assume partly it’s because that sounds cool. Like, you know, they’re like, “I’m the law. I charge you with murder, sir”. It’s very empowering to say that, right? But the truth is, they don’t have the power to charge anyone with anything in Indiana. Um, all they can do is turn the results of their investigation over the prosecutor’s office. And it’s not all the police is fault about that either. Because when they arrest somebody, they have to fill out a form and give it to the jail, so that the jail knows what they’re charged with so the jail can figure out generally like what wing to put him in. You know what I mean? So the jail needs to know something about why they were arrested in order to figure out what to do with them while they’re in jail. And so because of that, on their form, they have a space for the police to write in what the charges are, even though the police can’t charge them. But they still have to write well, these are the arrest charges. And so, as a result of the way, at least Marion County works, you could look those arrest charges up on the jails website. So people look up their friends or their loved ones and they see, you know six charges or eight charges or whatever. Um, and they’re like that’s what Jim’s been charged with; that’s what Chad’s been charged with. And then when Chad gets the court, Chad finds out that he didn’t get charged with that, he charged with some other things. And it doesn’t make sense, but that’s why. It’s one of these weird bureaucratic kind of things where if you haven’t been inside the system for a while, it doesn’t make any sense. But it makes sense to us just cause we’ve seen it so many times.

Indiana Governor Holcomb’s Veto Power

Teri Ulm – Now we’re gonna move on to Governor Holcomb and bill that he vetoed this week. It is in in regards to rental properties. Do you know anything about this bill and have any comments on it?

Jake Rigney – So I’ve read a little bit about it. Um, and it’s a It’s kind of a peculiar situation just because of the way just cause of where it’s at right now. Um, but so that Indiana, and by the way, I have handled about two landlord tenant cases in my life, so, uh, I’m coming at this with just slightly a little bit more knowledge than the average person who’s read one article. But Indiana landlord tenant law has, you know, their statutes, and they provide certain protections to tenants so the landlord’s can’t just for example, show up and say “You’re evicted today. Get out of here”. Um, things like that, um, certain municipalities, certain cities and maybe even counties had gone further and extended additional rights to their tenants by ordinance, creating additional duties for landlords to go through before they convict somebody. So it created this patchwork system where, depending on what place, your a landlord in, the rules are a little different. And some places it’s easier to evict people, and some places it’s harder. And I imagine landlords don’t like that because they always want to get bigger. They always want to have more properties and the more properties they get, the more different weird rules they have to figure out, the more they have to pay their lawyer to figure them out for them, and the more it costs them money. So it appears a group of lobbyists related to landlords in some way drafted a bill, or gotta got somebody at the statehouse to draft a bill for them, to make it so that municipalities can’t extend additional tenants rights to people. So Indiana law would be the only laws that could be passed. Tenants or cities can’t do or to help their tenants. That way, there’s a uniformity of rules. Um, Republicans, of course loving businessman like landlords, were generally all for it. Democrats were generally against it. In Indiana, the Republicans have a massive majority in the State House, so it passed. But then the Republican governor of Indiana vetoed it. Um, which is… that’s what’s peculiar. Um, and the reason it’s really peculiar is that the Indiana Governor’s veto is not very powerful. It doesn’t mean very much, because they can override it. The Legislature can override it with a simple majority. Um, which means the same people who voted this law into effect in the first place. All they got to do is go back and vote for it again and override Governor Holcomb’s veto, and it’ll still become law. Um, so that’s what’s its been a somewhat peculiar situation. You usually don’t see that because the governor knows that his veto doesn’t mean too much.

Penalties for not obeying Indiana’s stay-at-home due to Covid 19

Teri Ulm – Interesting. Now we’re gonna move on to the governor’s powers that he now has, um, in this disaster declaration that has been declared due to the coronavirus. He has issued a stay-at-home order for all Hoosiers. What types of penalties are involve if you don’t obey that order?

Kassi Rigney – I believe it’s a B Misdemeanor is what it is. So it’s a minor offense. Um, that’s a 180 days potentially in jail. Generally, that level of offense wouldn’t get you jail time or anything like that. Um, but I think it’s to be told how aggressive enforcement of that will be or need to get going forward.

Jake Rigney – Yeah, it’s an interesting situation, I guess. Or it’s just it’s weird because we’re living in sort of an unprecedented time. I guess. Or at least unprecedented in terms of the government’s response to this sort of thing. I don’t I don’t think we’ve ever… We certainly had pandemics before. We’ve never seen the government react so strongly, to one, I think in our lifetimes and probably ever. The flu pandemic of 1918 was really bad, and they certainly took some social distancing steps in some cities, but I don’t know that much of it was as bad or as severe is this. And I think what’s kind of wild is that people who don’t have any criminal record could get arrested now just for going outside the wrong way or time. And now they’ve got a crime on the record. It’s a pretty wild response. Personally, I think that really the penalty for it shouldn’t be more than a fine. It should probably be an infraction and not a B misdemeanor. Um, you getting drunk in public and fall down out in the street, you only get charged with a B misdemeanor. So that’s a bit much just for going outside your house when you’re not supposed to.

Teri Ulm – Now, the stay-at-home order allows some people to go and do things like go to the grocery store and go and take care of loved ones.

Jake Rigney – Go to your law office and go to work.

Teri Ulm – Right. What interests me is some of the things that have remained open and some of the things that are closed. One of the things that remained open is golf courses, and then one of the things that has closed is… I don’t know if it’s by order or they’re just doing it out of precaution, is that funeral homes are now doing things virtually.

Jake Rigney – Yeah. That’s probably related to the no more than 10 people, uh, rule. Because, I mean, if you think about running a funeral home, you don’t have control over who shows, how many people shows up for the wake. You know what I mean? Um, and they don’t want to be violating the rule because somebody was popular. They don’t have a way to predict that. So that’s probably why they’re just doing them entirely by virtually. And in case we sound a little confused, it’s because there’s a bum fight outside our office right now. Um, remember, we were talking about homelessness. So they’re out there in the rain. I can hear him yelling. We can all sort of like… What is that weird noise? Yeah, it’s the bums. The bums are out there yelling.

Kassi Rigney – The city did put a hand washing station on the street by the trash, out front of our office. So I thought that was nice. However, it did look like, um, the bit section that had the paper towel in it was already, like, broken off the top, and somebody appeared to have taken stuff. So it was the first morning I came in. On Monday, it looked like it had already been vandalized.

Jake Rigney – You can’t have nice things around Indiana man. It’s not… He just doesn’t get down like that.

Collection of cell phone location data

Teri Ulm – There’s this company that has created a social distancing scoreboard. And, the data that they’re using to create this is our location data from our phones. So they are grading each state at each city on, if people are abiding by the social distancing orders and a stay-at-home orders based upon their location. Indiana got a B. But I find this interesting because there’s a company out there that has all of our location data and they’re grading us and knowing where our location is. Um, is this legal?

Jake Rigney – Geese. Ah….. I don’t know.

Kassi Rigney – I assume we don’t know on part because we never read the fine print on all those… I accept. I accept. I accept.

Jake Rigney – Yeah. No, I don’t, um and I’m a lawyer, but its… I’d be interested. I can’t imagine how they would even actually do that. It’s interesting. I want to know their methodology, because there are about a 1,000,000 people in Indianapolis and there is no way they are accurately sifting through all that data by hand. That’s number one. Number two, even gathering all that data is difficult because it wouldn’t all be controlled by one company. Um, even the police, when they do it, it takes quite a bit of work and at least a couple of warrants to make it happen. And then sometimes they can only put you in, like, a for sure in, like a three or four square mile wedge. Um, so I’d be interested to know how it is they’re actually grading or examining that. Something tells me that’s probably more fluff than than them actually sifting through that data. They’d have to have a supercomputer to sift through the location data of a 1,000,000 people. I mean, that’s gonna be dozens of data points an hour, times a 1,000,000 people. That’s close to a 1,000,000,000 data points. I doubt they have a computer that can crunch that kind of that kind of data,

Teri Ulm – But I know the White House just teamed up with, um, the likes of Google and IBM and Amazon to create the computing power to help combat this virus and the pandemic.

Jake Rigney – So they say.

Kassi Rigney – How is a computer gonna protect me from the Ronna?

Jake Rigney – Kassi calls it the Ronna.

Calls for Governor Holcomb to Release Low-Level Offenders from Jail

Teri Ulm – Another thing that people have been calling upon Governor Holcomb to do during this pandemic, is to release low-level offenders from jail and people that were close to their sentences, close to the end of their sentences from jail. Do you agree with us?

Jake Rigney – I think that I agree with doing it. I don’t agree with doing it because of the Corona virus. That’s, um I think generally the state would do better if, this country would do better if they incarcerated fewer people. Um, if you’ve got people in for possessing drugs, I I don’t know why those people are in jail to begin with. I’m not I’m not scared of them, you know. So, uh, I tend to kind of look at this sort of thing, like jail is for people I’m afraid of. You know, and other stuff is for people I’m mad at. You know what I mean? I’m mad at the people who keep using drugs even after we make it illegal. But I’m not scared of them. I just want him to stop using drugs. Um, but I’m not in the legislature and they get to decide.

Supreme Court Ruling – Carpenter v. The United States

Teri Ulm – So, there was a Supreme Court ruling in 2018, Carpenter v. The United States and it had to do with how the government can gain access to information on people’s phones and whether the police or the government need a warrant. What are the laws in Indiana in regards to this?

Kassi Rigney – About getting into people’s phones?

Teri Ulm – Yeah. Can they do that? Do they need a warrant to do it?

Kassi Rigney – They generally do.

Jake Rigney – A warrant or consent.

Teri Ulm – Like, my own consent?

Jake Rigney – Right.

Teri Ulm – Or the consent of my cellphone provider?

Jake Rigney – No, no. Your consent. The in that 2018 Supreme Court case, the U. S. Supreme Court acknowledged that we all have a privacy interest in our phones. That we treat our phones similar to the way we would treat our briefcases or other personal papers, which were specifically mentioned in the Constitution as a thing that’s protected. And so because we treat it that way, we have an expectation of privacy in it. That they’re very personal things, that we keep… They are personal devices that we keep on ourselves, and keep our personal stuff in. They are protected by the U. S. Constitution in the Fourth Amendment. And so, in order to search it, the police need to get a warrant. Before that, it was kind of an open question. And you 2018 the Supreme Court said, you want to look in there, you got to get a warrant. Now you can always consent and wave your fourth Amendment rights, and then they don’t need to get one. But if you’re not consenting, they have to have a warrant. They have to have probable cause.

Teri Ulm – So when you say, like, get into my phone, you’re talking about, like seeing my text messages and the things I have on my phone.

Jake Rigney – Yes.

Teri Ulm – But what about my location?

Jake Rigney – If it’s on your phone, on your physical device, then they need to get a warrant to get it. Yeah.

Kassi Rigney – It’s just to get in your phone, whatever’s in there. And that would include your location.

Teri Ulm – What if my location is stored elsewhere, do they need to get a warrant?

Jake Rigney – Uh, yes. Um, typically in that situation, what they do is they get either a grand jury subpoena, in Indiana anyway. This is how they do it. They get a subpoena, and send its to whoever has that data or they get a court order or a search warrant, which is like a court order and send it to whoever is holding that data. Um, so that they will provide it, um, to the police.

Florida man using app to track bike rides dragged into crime after Google turned over his location data

Teri Ulm – Okay, so then that might have been what happened to Florida, man, because Florida man got dragged into a case because Google provided his location data and connected him to a crime.

Jake Rigney – Yeah. So this is interesting because she snuck Florida man up on us. Did you see that?

Kassi Rigney – She did. I didn’t know.

Jake Rigney – I thought we were talking about something funny. And there I thought we were talking about something real, and the next thing I know, it’s the Florida man segment. Uh, so, yeah. So what? Florida man was the scene of a murder and they figured it out because they said they searched his phone or they got a warrant and got his cell phone data?

Teri Ulm – Florida man was being a good guy, and he was just using this app on his phone for exercising to track his bike rides. And that app, of course, tracking his bike rides and seeing along he rode his bike for had his location data,

Jake Rigney – Uh, was a Fitbit or something like that.

Teri Ulm – Yeah, like a little app like that. And it connected him to being in this location at this time, huh? So the next thing you know, he’s now in trouble because he’s exercising.

Jake Rigney – Is he in trouble because he was exercising or is he in trouble because he killed someone?

Teri Ulm – Well, he’s in trouble because Google said he was there when indeed it wasn’t him that did it. He was actually on his bike on a bike ride.

Jake Rigney – He was not there.

Teri Ulm – Right.

Kassi Rigney – Well, was the… So was the information wrong or is that this is just the context and the meaning of the information? I mean, I think that’s what the problem is. Okay, so he gave his information to Google, and Google gave it up for a subpoena. I mean this comes down to the confusion that people have around DNA and fingerprints. The evidence was right. He was riding his bike and it put him near the scene of the crime. Well, just because you’re near the scene of crime, as Jake said, doesn’t mean that that he did it. Um, and it’s just like for DNA or fingerprints. That doesn’t give you a timeline. It doesn’t tell you how, um, so I mean, that seems to me, um, you know, if you really didn’t do it, maybe lazy investigative work. Okay, step one. These are the people that were present. But what happened? Just because you’re present, number one, being present at a crime is not a crime. Um, so that’s my my question. I mean, it’s one of those things he could not suppress that if I mean that information, if he lawfully gave it up, it’s up to Google’s rights that would be violated and trying to get that it doesn’t sound like they thought that.

Jake Rigney – So how did it turn out?

Teri Ulm – He fought it and was dismissed from the charges.

Kassi Rigney – He fought the criminal case? Not this turning over of the… okay. Which is probably what is it. This is what attorneys do, what is the meaning of that evidence? You know, not saying that the information was wrong, but what does it mean?

Florida man arrested and put in jail following flawed field test results – lidocaine tests positive for cocaine

Teri Ulm – Now there was another Florida man. So Florida man was pulled over and his car was searched and the police found a bottle, and it was labeled lidocaine . And the police tested it, and their tests said that it was cocaine.

Jake Rigney – Really?

Teri Ulm – It did. And the guy said it is not cocaine, but the test said it was. So off to jail he went. He fought it for a long time. Come to find out these tests that these police officers are using, they’re not very reliable. And when it was all said and done, it wasn’t actually cocaine. It was like a lidocaine, but this guy set in jail for a very long time.

Jake Rigney – Obviously, that’s frustrating. Um, at the same time. Heck, I mean, the police officer did what he was supposed to do, right? He field tested the substance. He thought it was contraband. The test said it was contraband. He’s not supposed to let him go at that point. And believe me, uh, that guy is not the first person. That guy is not the first person to say those aren’t drugs, I swear, when they were actually drugs. Um, uh, that’s probably second only to the those… Those illegal drugs aren’t mine as a defense. Um, at the same time, it is really frustrating that whoever is equipping the officers with bad tests is ah not paying for better tests. Because lidocaine and cocaine are actually not very similar in terms of their chemical, um, make up. Uh, and I did a little research on this issue once. So it’s it’s hard to mix them up. They don’t usually come up. And this is the sort of thing that would happen a lot if they did. Because lidocaine is very common. It’s an analgesic. You put it on, um, your teeth to numb them. It’s like you know that stuff that when you have a toothache, you put it on your gums and then your tooth doesn’t hurt anymore. Um, I mean you do that for cocaine, too. You could do that with cocaine. Okay, but they are not, um uh, they’re not chemically similar. And lots of people use lidocaine, and they don’t usually test positive for cocaine. So it’s peculiar that happened, but it’s also a shame if that guy sat in jail for a long time. It would be interesting to know if he sued and got any money out of him for that. He might not. I mean, the police officer did what he was supposed to do.

Kassi Rigney – Yeah, my guess is that he would just stand and they just shrug and be like: “Sorry about you, bro”. I mean, that’s why that is exactly why that field test is not admissible in court.

Jake Rigney – Right than the normal process, at least in Indiana is if a field test something that’s fine, but it eventually goes to a lab, and a lab technician tests it for real. You know, a scientist in a lab test and not not a dude with associates degree in criminal justice and a gun.

Teri Ulm – Right. And this was one of the issues that Florida man was dealing with, was how long it took that lab to test it. He sat in jail for a very long time, as the lab was taking their time getting to that.

Jake Rigney – I was just kind of mean to the police. I’m sorry… police officers who were listening. I know there’s some of you out there. Uh, most of them have four year degrees. Some of them even have masters or Ph. D’s. My bad.

Kassi Rigney – Yeah. I mean, you know, in that sense, you know, I don’t know if that was a history with that test, but yeah. I mean, what else are they supposed do? You know, I mean, it’s a very unfortunate situation, and it stinks. But how else is it gonna work? It doesn’t work any other way. You know, we gotta have a presumptive test, and we got to start somewhere. And that’s why that presumptive test is ill enough for the charge. But I don’t believe it wouldn’t be enough for a conviction.

Jake Rigney – I have a wild way to fix this sort of problem. This will never happen again. You wanna hear my solution?

Teri Ulm – Yeah. What’s that?

Jake Rigney – Legalized cocaine.

Teri Ulm – That’s not a bad idea.

Jake Rigney – There’s not a very large lobbying effort out there for legalizing cocaine. But here’s the thing. Cocaine and cocaine addiction is a problem that dudes with guns aren’t going to solve, right? So stop giving the police officers problems that they can’t solve. And the way you stop doing that is you make cocaine legal. You take the money that you used to spend on trying to lock people up for possessing cocaine, and you spend it on addiction treatment to treat the people who happen to get addicted to it. Then you wouldn’t have to worry about police officers doing field tests with bad field tests because they’re cheaper because the government doesn’t want to spend money on field tests. Take the problem out of their hands. They can’t fix it anyway.

Jake Rigney – Oh, you hear that, Kassi? They’re playing our music. Okay, time for me to go to the bank.

Jake Rigney – Additional legal disclaimer. While we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create an attorney client relationship with any listener. Our advice may not be applicable or appropriate to your legal issue. Please consult with an attorney you have hired to review your legal situation before you attempt to apply anything we said today.

Jake Rigney – Thanks for listening to Tales from the Brown Desk. If you need help with the criminal law issue, please contact Rigney Law. 317-316-8419. If you have a question for the attorneys, you’d like to be addressed on the air on our next podcast, please email us at Teri. That’s T E R I at Rigney Law Indy dot com. And title your email “podcast question”. The attorneys in this podcast do not comment on their current pending cases. None of this discussion is a comment on a current case or strategy, even if your name is Chad or Steve.

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