Tales from the Brown Desk – Episode 5
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-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised.
Episode 5 – Discussion about nonviolent civil disobedience and the criminal penalties that come with it (from arrest, to jail, to bail), Indiana inmates await court as the Covid 19 pandemic delays court proceedings, Drug crimes and penalties in Indiana, Indianapolis Metropolitan Police Department no longer administering naloxone until the end of the coronavirus pandemic, Indiana Court of Appeals opinion – Farris v. State of Indiana, Indiana Court of Appeals opinion – Quintanilla v. State of Indiana, Marijuana laws in Indiana and Indianapolis, United States Court of Appeals opinion regarding federal government execution of federal inmates, Florida Man – Tiger King and request to President Trump to pardon him.
Jake Rigney – It’s Friday afternoon. We’ve locked the door this week while we contemplate how very, very essential we feel, and also 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 hand sanitizer expert 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 mansplaining. It may not be suitable for children, women of a certain age, the sisterhood of the traveling pants, people who use bro more than once a week, or Rand Paul’s punctured lung. Listener discretion is advised. Here’s Teri.
Teri Ulm – Hello, everyone. Hi, Jake.
Jake Rigney – Hello.
Teri Ulm – Hi, Kassi.
Jake Rigney – Hi, Teri.
Teri Ulm – How are you guys today?
Kassi Rigney – Hang. No, No. Grouchy. Yeah. Grouchy is the word I’m looking for.
Teri Ulm – How about you, Kassi?
Jake Rigney – Still ah, dealing with allergies. So every time I sneeze or get a runny nose, I think I have Rona.
Penalties in Indiana for Nonviolence Civil Disobedience
Teri Ulm – I’m glad you don’t. I’m glad you don’t. So, this episode we’re going to start off with some questions. There is a local group of activists who are part of a global environmental movement. They use nonviolent civil disobedience to try to convince governments to declare a climate and ecological emergency and take immediate action to address climate change. Civil disobedience can lead to getting arrested, and this group has some questions for you.
Jake Rigney – Okay.
Teri Ulm – One other questions is, is what kind of charges can be filed against someone who gets arrested for nonviolent civil disobedience?
Jake Rigney – I think Kassi is gonna answer this question. But before that, I do want to say, uh we are required by the Rules of Professional Conduct, to mention that we are not encouraging you to commit any crimes. We have to say this, and we also believe it’s true. You’d be better off finding some other way to make your point. But ah, beyond that… Ah, we can sort of explain generally what might happen to you.
Jake Rigney – Well, generally, you know, just brainstorming, we’re probably talking about, you know, the laws that you be breaking would be disorderly conduct or criminal trespass. Um, they’re both misdemeanors. They’re minor offenses. Um, so you know.
Teri Ulm – When you say misdemeanor, does that mean that they would serve time in jail? There would be a fine related with that?
Kassi Rigney – Both.
Teri Ulm – Both. How long in jail?
Kassi Rigney – Well. And I say both are potential. If it’s… And here’s the line, it’s either an infraction or it’s a criminal offence, and criminal offenses or misdemeanors or felonies. Criminal offense, even the lowest level misdemeanor, you can go to jail. The disorderly conduct is a B misdemeanor that you could go for a maximum of 180 days in jail. Trespass is an A misdemeanor which is 365 days. Now reviewing the statute, and this was new to me, they’ve enhanced some trespassed, to include the airport and funeral services. And in those cases, it would be a class 6, a level six felony.
Teri Ulm – What would it be if, let’s say they wanted to block the flow of traffic, and blocked the roads and traffic from getting through? Would that fall in the trespass, or…
Kassi Rigney – You know, and I meant to look and see, because I want to say that there is some kind of offense for traffic, but either one of those could apply. I mean, yeah, I don’t know off the top of my head. I meant I meant to look it up to see if there’s an infraction for flow of traffic. Um…
Jake Rigney – Yeah, I believe that blocking traffic is an infraction. It’s a ticket. So you can’t get jail time for it. You can get fined. But more importantly, uh, the street is owned by the government. So, if you stand in the street and the government tells you to move, and you don’t move off their property or off the particular part of their property they’re telling you to move off of, then they can arrest you for not for not moving,
Teri Ulm – Okay. And then there are also wondering what is the cost associated with getting arrested? And to elaborate on this, this would be like the fines that I think we touched on already. And then also, hiring an attorney for representation. What would be the total cost?
Kassi Rigney – That you can answer… I mean, I can tell you a maximum fine of a B misdemeanor is $1,000. And it’s $5,000 for an A misdemeanor. I can’t speak to any other attorney’s fees. And then, you know, if you’re talking about, you know, just the criminal aspect. Or do you really think that you have a civil claim against the police for violating free speech? That’s a totally different ball park. That’s not I don’t know what civil attorneys charge in that case, either. So, um, you know you’re gonna lose your job? You know, if you get arrested or have a criminal charge? I don’t know. Is that what they consider cost? Somewhere from a couple $100 to a few $1,000? Potentially even more.
Jake Rigney – Yeah. If if you went to trial and lost, you’d be assessed court costs. Those usually are around $185 depending. It depends a little bit from jurisdiction to jurisdiction. It’s a little different. But, then attorney’s fees can vary wildly, depending on what you’re trying to do. If you’ve never been arrested before, it’s likely that they could offer, that you could be offered a diversion. But if you are, there are usually additional fees attached to that as well. Those can run $300, $400, $500, I think. Sometimes. So it’s… I mean, I’d be surprised if a misdemeanor arrest ever ended up costing somebody $10,000. But it’ll run into four figures, especially if you’re hiring a, um, a good lawyer.
Teri Ulm – I think another thing that is associated with cost would be bond. Would… If someone participated in nonviolent civil disobedience, and they were arrested, would there be a bond or bail?
Kassi Rigney – There could be. Experience tells me, certainly first time offenders, something like this, they would not. They would be released on their own recognizance. But they are eligible for bond. And every individual person is evaluated standing alone. So you know, you’re… you hear pastors and things like that who goes out for the first time offense, maybe, yeah. somebody with the vastly different criminal history. Maybe they would get some kind of bond. So that’s I mean, it’s on the table for sure.
Jake Rigney – Yeah, The Indiana Constitution guarantees the right to bond for a person who’s been charged with a criminal offence. Except for murder. You could be held no bond on murder. But for the rest of them, the court has to give you some kind of bond. Um, if we’re talking about a disorderly conduct arrest in Marion County and Indianapolis, it’s unlikely that that person is going to get held in jail. Um, most likely they’ll be released on their own recognizance fairly quickly. Um, I’d say, you know, the average jail stay for something like that’s probably gonna be between 12 and 36 hours. Um, and they’ll either be given a very small bond that they can make, or they’ll just be released on their own recognizance. Unless, you know, someone has a really significant criminal history. And there is a point where, even the judges in Marion County, will run out of patience. And you can be held on misdemeanors if you go out and you pick up a bunch of them in a row. So, especially if you’ve got another one pending somewhere else, getting arrested has the… Makes it a lot more likely that you’ll end up sitting in jail. Especially if you’re older, pending case’s in some other county. Right? Because if you get arrested in Marion County, and you’ve got some older pending case somewhere else, the prosecutor in the older case can move to revoke your bond there. So even if you get out in Marion County, say you’ve got a pending misdemeanor in Hancock County too. Hancock County prosecutor will find out you got arrested. When they do, they’ll file a motion to revoke your bond. And, they’re not so forgiving out there. You know, I can’t tell you exactly what that judge will do. But I have seen that judge revoked people’s bonds before for picking up new cases and then holding them in the jail. So it’s it’s, ah… Your criminal history is going to be the largest determining factor on whether or not you end up being held for any arrests. And that’s true whether you’re blocking traffic because you wanna complain about the environment, or you rob somebody, or you got a DUI.
What’s the process of getting arrested, going to jail, and posting bail look like in Indiana?
Teri Ulm – What does the process of getting arrested look like? From when, like, when do you know you’re arrested? The cops say I’m arresting you… That is, when you have handcuffs on? Like, when do you know you’re now in their custody. And where do you go?
Kassi Rigney – Well, first off, they don’t have to tell you anything. Really. You need to follow their instructions according to them. And whether it’s lawful or not, that determination is something that a judge would decide later. Um, handcuffs is a really good sign. Um, I think I touched on this before. If you’re not sure, the question is “am I free to leave?” “Am I free to leave?” Ah, And if the answer is yes, and you’re in that situation asking that question, I suggest you just turn and leave. So, they… you will be processed in somehow. Fingerprints. Photograph. You know, you basically get booked in. A bond will be set. Some… most of the low level offenses like we’re talking about, counties have prescribed formulas. That’s how somebody who gets arrested for a low level nonviolent offense on Friday after courts are closed, doesn’t actually have to sit in jail till Monday. They can. Once they get processed through and do their thing, they can all agree this is what somebody gets. And then somebody, you know, once you’re in, you have to be booked all the way in. You can, I guess, call loved one. Have them pay. It’s my understanding you can pay by phone and card now, and then you’ll get released. Unfortunately, in Marion County, that release process can take anywhere from hours to days. It was my understanding that processing out had resulted in some weeks long delay.
Teri Ulm – Weeks?
Kassi Rigney – Yes. Give a little shout out fellow attorneys Waples & Hangar. If you think you’ve been held illegally by the Marion County Sheriff’s Department, they are currently putting together a class action lawsuit for delayed release. They got federal court approval for a class action lawsuit against them.
Jake Rigney – Yeah, I had one.. I had one that was particularly frustrating. Right. Where… And the case is resolved. I think I could talk about it. I’m just not gonna mention my client’s name. So my client… They alleged my client was in violation of his probation. Eventually admitted to a violation, and he got four days. Four days in the county jail. So, I think he actually got, like, 180, but he had 176 in. So he had to do four more, right? And that was on Friday, that he got that sentence. So he got four. And what… the way we usually described as four due two, right. So, uh, he had to He got four days, but with good time credit, he’d be out in two, which means that happened on Friday. He was supposed to be out on Sunday, right? That was his second day. But the jail wouldn’t release him because they couldn’t confirm that that was what was supposed to happen. And they needed a supervisor’s approval to process it, so they weren’t processing it. So he sat in jail at least another day or two, because they weren’t sure that four divided by two was two.
Teri Ulm – Wow.
Jake Rigney – Yeah. It was really frustrated. I called around all over the place like he’s supposed to be out. What are you doing? They’re like, well, check back tomorrow.
Teri Ulm – So if someone’s arrested for civil disobedience and they go to jail and they go through the whole process, once they’re out, would they have to appear before judge down the road? Or is it done?
Jake Rigney – They will, most likely… It’s difficult to predict. Because it can happen a couple of different ways. But they will most likely have to appear one more time. Although if they hire an attorney before their first hearing, it’s possible they may never end up having to go to court again. There are things an attorney can do that can sort of push the case along without you having to go to court. And then eventually resolve the case without you having to go to court. So occasionally, I get hired and then my client never actually appears in front of a judge. That doesn’t happen all the time, but it does happen sometimes. Especially on low level misdemeanors. But, in the normal non attorney aided procedure, you go to jail, you get out, and they give you a date to come back. And you have to go back that day and find out whether or not the prosecutor’s office has agreed… has decided to file charges against you. If you’re in custody, they usually bring you back within, like, a couple of days. Because they have to bring you back quick if you’re in custody. If you’re out of custody, it’s usually 3, 4, 5 weeks. And you come back and you find out whether you’ve been charged or not. If you have been charged, then you have an initial hearing. And your criminal process starts, and you eventually go to one of those courts that handles misdemeanors in Marion County. And you go back as many times as it takes to resolve your case. If they don’t charge you, then you don’t. Then you just go back that once, and find out that you didn’t get charged, and then you’re done.
Teri Ulm – So we talked a little bit about Miranda rights in a past episode. What types of rights does one have or doesn’t have any more when they’re getting arrested.
Jake Rigney – Well. I mean, the Constitution applies, but, I mean, it’s not the kind of thing where I can give someone a checklist. Like I’ve said before, you’re not going to win a legal argument with a police officer on the street. You have the right to peacefully… or you have the right to gather. You have a right to free speech, but you know those are rights that ultimately get enforced by a judge down the road if they are determined to be violated on scene.
Teri Ulm – Now, if the police officers were starting to ask questions, do they have the right to remain silent, even if they’re Marine to rights were read to them? Can they not answer questions or they… ?
Jake Rigney – Yeah. I mean, yeah. You don’t have to have your…. Being read your rights doesn’t determine whether or not you can keep your mouth shut. You know, we don’t in theory, don’t live in a country where you can be tortured to be forced to speak. Ah, you’re Miranda warning is really just a warning. Like, hey, you know, you’re now on notice that we’re triggering that we’re going to use this against you, in court, if we get there. Because you have been determined to be in custody and being interrogated. That doesn’t mean that other statements that you make cannot be used against you. Because you can voluntarily make statements out of police custody, and those can absolutely be used against you. Um, you know, what would they say? Depending on what book of evidence or interpretation of evidence, they’re 18 to 21 exceptions to the hearsay rule. The biggest one is, ah, statements of the accused. So I mean, if they’re asking you questions and you just start talking to him, that’s consensual.
Teri Ulm – Can you not talk to them?
Jake Rigney – Yes. Yeah. You just look at them and you either don’t say anything or you say “I choose to remain silent”.
Teri Ulm – Now, going back to the types of charges that one could face. How long do these charges stay on their record? And how long does someone have to wait before they can be expunged?
Jake Rigney – Well, there’s, I mean, they’re treated as just as any other crime? I mean, they’re not going to be… Like I explained before, you have to take these things one step at a time. And the fact that these laws were broken for the specific purpose of civil disobedience is a consideration, and what happens after you’ve been convicted. So up to that point, it is a criminal offence. They will stay on your record until and unless they are expunged. A misdemeanor, you have to wait five years after the conviction.
When can one expunge a criminal record in Indiana?
Teri Ulm – And can you expunge your record more than once… in your lifetime?
Jake Rigney – You can expunge arrests that did not results in a conviction. And you only have to wait a year to do that. So, if you if you got arrested for a misdemeanor and then got a diversion, um, the state dismissed your case. At the end of that you… One year from the date of your arrest, you can file a petition to expunge, and have the arrest removed from your record so that people can’t even see that you were arrested. But, yeah, if you get convicted, it’s five years. And with convictions you can only do it once in your life. So once you get convicted and then you decide to do an expungement, you had better be done with your criminal arrests because you won’t be able to expunge them again.
The Right to Gather in Indiana
Teri Ulm – Now, just going back a little bit to rights, and the right to gather. People have the right to gather…. and when are those rights breaking the law?
Kassi Rigney – The Supreme Court has said that governments can limit, because in the nature of free speech is all that it’s it’s time in place limitations. And those limitations can’t be content driven of the speech. But it has to be like safety driven. That’s why they’re allowed to make laws that say you shouldn’t gather in the middle of the street, and the laws say that you have to balance the right to free speech, and the right, you know, to gather against interests in safety. Um, you know, it’s reasonable. You know, the courts have said it’s reasonable to say we don’t want people gathering in the street, because that’s dangerous. That’s not only… that’s dangerous for everybody. So those are the types of limitations.
Jake Rigney – Yeah, just you normal time, place, and manner restrictions.
Teri Ulm – Can you elaborate on time, and yeah, on the time restrictions?
Jake Rigney – Well…
Teri Ulm – What do you mean by that?
Jake Rigney – They vary. I mean, I guess the easiest way to explain is the government has the right to… I guess the easier way to say it is your right to peaceably assemble, does not include the right to basically get together and do whatever you want, whenever you want to do it, in whatever way you want to do it. So you can decide that you wanna have a parade, but you have to apply. And that’s speech. But you still have to apply with your local government, and get a permit to do it in a specific way at a specific time. So that, for example, you’re not trying to have a parade where you shoot fireworks off in a random neighborhood at three in the morning, right? That’s what I mean by time. They’re not gonna let you do some extremely loud thing in a public place right outside somebody’s house at 3 a.m. Because that’s not appropriate.
Teri Ulm – That makes sense.
Community Policing Policies
Kassi Rigney – Well, I want to say, just for this group in general… When I was a prosecutor, there is community policing practices in Marion County. And ,I am aware that they may wish to reach out to the local district. Because I know other groups had. And I was consulted as a prosecutor as far as trying to schedule these things. In that way, I think sometimes they’ve done these protests and decided, you know, all first time offenders are going to be offered diversions on scene. Or, help coordinate places where you know you’re just gonna have more flexibility and friendliness from the law enforcement. Especially if you know you’re going to encounter them. And that doesn’t necessarily mean avoiding arrest. But, you know, if the police say, look, if you schedule to come, we can you know, if you do it on Tuesday morning, we can have an officer there to process people you know, versus if you do it by surprise on Friday night. I mean, you could end up getting stuck in there and, you know, it’s just an option for that group. If they’re interested in reaching out, and the district… they’ve the local law enforcement districts have worked in the path.
Jake Rigney – Yeah, it’s funny, right? It’s funny to say that we’re gonna go out and commit some crimes, and we’re gonna coordinate our crimes with the police before we do it. We’re gonna make sure the police know, but that’s weirdly kind of the point of, you know, of doing that, right? Is you’re getting arrested, you know, you’re gonna get arrested. Your plan is essentially to get arrested, and that’s okay. I guess. If you think that’s gonna bring, you know, more… a bigger spotlight to your issue, than okay, Um, but the police are a lot easier to deal with if you coordinate with them ahead of time; so that they know. That way they can have paddy wagons there. So they don’t have you all cuffed up sitting on the side of the road, uncomfortable. So that they have enough police officers there to deal with all of you. One guy with a gun is gonna be scared. Trying to arrest 15 different people. In fact, he doesn’t have enough handcuffs to arrest everyone. You know, he might have three or four pairs on it, but that’s it. So if you coordinate with the district that you’re planning your protest in, they can plan to have the kind of man power there to make sure no one’s nerves get frayed. Which significantly decreases the likelihood of somebody getting maced in the face or tazed. Or one of those other things that we see happening Sometimes, of course, that might also be part of the plan of the protest. So I don’t know. Whichever way you want to do it. Again, we’re not condoning any activity that results in an arrest. We think it would be wiser to do something else. But if you’re going to do it, yeah, I guess have the cops… Let the cops know, so they’re not so freaked out about it.
Indiana inmates await court as jury trials are delayed across the state
Teri Ulm – So now we’re gonna move on and touch on the Covid 19 pandemic. It is placing a hold on jury trials across the state. And this means that Hoosiers are spending a longer time behind bars than they normally would. And my question to you is, what is normal? Like, how long does someone sit behind bars and await their trial?
Jake Rigney – It depends very much on the type of case and the person’s criminal history. And especially whether or not they were on probation. For example, a level 5 felony, I think those are usually supposed to be done in, I think, either two to four or three to six months. And then from there it kind of goes up, with some of the other ones, where they could be done. And, you’d expect something to be done within six months. And then with murders, it’s often more like a year. But it can vary wildly from case to case. And sometimes it’s… There are just there are gonna be exceptions. And so it’s difficult to say that there’s some sort of rule about it, because it’s not… it’s not always predictable.
Arrested for Drug Crimes in Indiana
Teri Ulm – So there was a study released last month that found Indiana struggles with substance abuse at the fifth highest rate in the nation. With this ranking one can just assume that in Indiana and in Indianapolis, many people have been arrested for drug crimes. And I’m curious what types of drug crimes can someone be arrested for in Indiana?
Kassi Rigney – I guess I don’t know how. It’s so ingrained. And I mean, what can’t they be? I mean, what’s more than that? I mean, if either you’re allowed to have it by prescription or you can buy it over-the-counter, and anything outside of those things you could get arrested for.
Jake Rigney – Oregano is still legal, as far as I know.
Teri Ulmv – Does the amount of drugs matter? Could you… Does that change the charge? Could you be arrested for…?
Kassi Rigney – I mean, it depends on the level. It’ll affect the level of offense. And then the nature of the drug. I mean, having, they call them legend drugs. Things that you can get, basically what I would describe, prescription drugs you can’t really get high on. I think like maybe Viagra might be one that was a legend drug. Like, if you have that without a prescription, it is a crime. But it’s not like having, you know, Ritalin, which I think is just a felony as a controlled substance. Not is a legend drug.
Teri Ulm – So having one pill that’s not your prescription…. Could you be arrested for that?
Kassi Rigney – Certainly.
Teri Ulm – What if you had a whole bunch? Could you be charged with intent to distribute, or could you claim that there are all for you?
Kassi Rigney – I mean, you could always claim it’s all for you.
Jake Rigney – That doesn’t mean they’ll believe you.
Kassi Rigney – What you claiming what’s believable. And certainly. It’s called possession with intent. In Indiana, there’s two kinds of what you’re talking about is dealing. And you can have… Dealing is really only the transfer of possession from one person to the other. You have direct dealing, for instance, somebody actually documents a sale, or possession with intent is which is what you were talking about. And then they, you know, it’s a totality. Looking at number of circumstances. Weight alone no longer will get you to possession with intent under Indiana law, but it doesn’t take much to, you know, and indicate dealing. Whether it be scale, or baggies, or lots of money.
Jake Rigney – Separate packaging.
Teri Ulm – What kind of penalties come with drug crimes? From the lowest level, up to the highest level? Are they consider like low level crimes or high level crimes? I think a lot of people spend a lot of years in jail on drug crimes…
Kassi Rigney – They do. I mean, while it’s all the way down to a B misdemeanor. The lowest, second lowest criminal offense for marijuana. All the way up to the highest, is a level two. Which, when you think about it, it’s murder level one. Level two. And you’ve gotta have… That’s going to be dealing of a significant weight. Because there’s a range of dealing offenses, all felonies. But it’s a range all the way up to the level two felony. But you can get anything. As we see Marion County’s not even prosecuting those right now on. I think, if I remember correctly, the prosecutor’s office figured out they weren’t prosecuting 76% of them anyway. Because they were being diverted. Which is an agreement where you basically admit that you did it, but they dismissed the case. And I think ultimately the prosecutor’s office just didn’t think it was worth their time to process all those cases for no reason.
Teri Ulm – Why are the penalties for drug crimes so strong? Like why so many years in jail for some of these people?
The War on Drugs
Jake Rigney – The War on Drugs.
Teri Ulm – Has that helped?
Kassi Rigney – Well, as a former soldier in the War on Drugs, I think it’s an epic failure. I don’t think that we’re making a dent in the supply, the demand. I think that we’re… My two cents, We’re focusing a resource on the wrong place. I mean, we’ve got toe focus on the supply end. I think… I don’t know, I guess it’s just easy. And it’s more money making to make more prisons for some people for longer. I mean, you know, back when, it was the eighties when that stuff started over a crack. And there are a lot of reasons why. But I think the initial thought was that it would have a deterrent effect. But I think decades of exercising that has shown that that is not in fact effective.
Teri Ulm – Right.
Jake Rigney – Yeah. I can’t remember if we talked about this during one of our podcasts that didn’t air, or if we talk about it in one that did air. But, deterrence is a rational response, right? So if you’re passing a law, it’s because it deters people from doing things. You are assuming that the people will be rational, that you’re trying to deter, right? But drug addicts are not rational.
Teri Ulm – Right.
Jake Rigney – And people generally aren’t rational about drugs at all. So prophylactic measures by just making a thing completely illegal, will not stop people from trying to use them. Because they won’t engage in rational thought before they make the decision. And so your rational deterrent won’t stop them. And typically, your rational deterrent laws about anything will not stop irrational people from committing those crimes. It just… won’t happen. All you do when you create that prophylactic law that makes a thing completely legal, is you just handed over to people who are willing to engage in illegal activity, including violence, in order to take on that trade. And we’ve seen that over and over and over again in this country. We saw it in Prohibition. As soon as we made beer and alcohol legal, what happened? The gangster started running it in from Canada. And they had a wonderful little booze trade going on there for… right up until the day we made illegal again. You see the same thing with marijuana and heroin. Who makes all the money off that now? The cartels in Mexico, right? Because they’re the ones who are bringing it in. We just hand the entire business over to these people that we really do not want running any kind of business. But that’s what we do when you just make something, blanket illegal. You just say it’s illegal to possess something. You’re just…. You’re not going to stop people from using it. You are going to make some criminals a bunch money, though.
Teri Ulm – So, going into a little history lesson here… How were the people able to end prohibition? How do you think the people can in the War on Drugs? Can it be done the same way?
Jake Rigney – Well, prohibition was a little different than the War on Drugs in that prohibition was created by a constitutional amendment. So that’s how they made booze illegal in the entire country to begin with, right? If you think about it… That would be really hard to do. If you had to go state by state or county by county and get them to pass laws that made it illegal to possess alcohol. You probably couldn’t get that done. So what they did is they passed a constitutional amendment that just said, we have all agreed… This is now illegal. And then they repealed that amendment with everyone’s favorite amendment, the 21st Amendment. Which is why those liquor stores were named that way. So could a constitutional amendment do the same thing for drug crimes? I mean, yes, it could. It would be a really complicated amendment, and it would be hard to write. But, you know, we’re a country full of talented people. I’m sure we can figure it out.
Indianapolis own IMPD has suspended police administration of the opioid overdose reversal medication
Teri Ulm – So there are a couple of Indiana law enforcement departments, including Indianapolis own IMPD who have suspended police administration of the opioid overdose reversal medication until the end of the coronavirus pandemic. And this was done over concerns of possible transmission of the virus to the officers. And I was just wondering, as criminal defense lawyers, if you had any thoughts about this.
Jake Rigney – Well, you know, they’re here to protect and serve right up until it’s not convenient. And then they…. wait a minute. You might have a disease. By the way, several police officers already have this disease. And I bet you that those people’s tickets didn’t get torn up.
Kassi Rigney – Well, I guess that you know, not only convenience, that they’ve determined that the risk that this person is not of value. This human being is not a value to perform their normal, otherwise normal duties.
Teri Ulm – I thought it was a sad article when I read it, personally.
Kassi Rigney – To back up as well, you know, it’s a bad place to put police in… To be health care workers, and I mean it’s just a hard situation.
Court of Appeals Opinion – Farris v. The State of Indiana
Teri Ulm – So we’re gonna move on now to a Court of Appeals opinion. Farris v. The State of Indiana. Now, in this case, Farris was pulled over for failing to activate his turn signal. And when he was asked to exit the vehicle, it was because he could not provide insurance. And he refused to exit the vehicle. And in doing so, he proceeded to pat down his jacket, take it off and throw it in the backseat where a quote unquote “aggressive pit-bull” was. Can you get pulled over for not turning your turn signal on? And can a cop order you out of the car because you can’t prove you have insurance?
Kassi Rigney – Absolutely. Any traffic infraction is legal justification for the officer to initiate a traffic stop. That’s failure to use a turn signal. One of the favorites is failure to have your license plate properly illuminated. That’s an easy one. I mean, that is just cause. If you’re traveling on the roadways, you’ve got to be following the law. And this comes to the… don’t commit two crimes at once. You’ve got dope in the car, use your turn signal. Make complete stops.
Jake Rigney – Or don’t commit any crimes. Once again, we’re not condoning or suggesting anyone actually go commit any crimes. Yeah, definitely don’t commit two at once.
Teri Ulm – Can a cop order you out of the car because you can’t provide proof of insurance? Is that reasonable?
Jake Rigney – He can order you out of the car just because he wants to see how tall you are. He can order you out of the car for any reason.
Kassi Rigney – Yeah, it’s one of those… I mean, yeah, they can order you out. While they’re because ultimately it’s a temporary detention there. And if they can, if the officer can articulate a reason why they would feel unsafe leaving you in your car, they can take you out for the duration of the of the stop. And this comes back to, you’re not gonna win an argument with the police officer on the side of the road. If you think that he’s being unreasonable in that demand, that may be true. But you know, it’s unlikely that you’re going to do yourself any favors by initiating that legal discussion with the uniformed officer. But yeah, I mean, they weren’t gonna let that car drive away. He didn’t… if it wasn’t properly registered or insured, that car was not gonna be driven away.
Teri Ulm – So after Farris was pulled from the car and arrested, his vehicle was impounded and searched. Is this typical? Do police…. After you’re arrested, they can impound your car and search it? Is this normal procedure?
Jake Rigney – Almost always. But there are some exceptions to it. So if they are going to tow your car, then they are allowed to search it before they tow it. And the reason is so that they can document what’s inside of it, so that they can’t be accused of stealing things out of it later. And I’ve always… it always occurred to me too that, I mean, they really ought to be allowed to search just to make sure there aren’t like, bombs or other explosives that could go off, right. Because you don’t want to take it into impounded than have it explode, um, and destroy a bunch of other people’s property or hurt people, too. So, good reason for them to search the car as part of a tow. Now, they don’t always get to tow your car. They… if you… When you, for example, if you get pulled over when you’re driving in a city street, and because of the street you’re driving on, there is a place for you to pull over and just park and leave it legally parked on the side of the road. Because it’s a city street with street parking. Then they can’t tell because it is not, um there’s no reason for them to move it the whole reason they have to tow cars, because after they’re arresting the person who’s driving it, they can’t just leave it sitting in the street. Right? But if you pull it over into a legal parking spot where you’re allowed to leave it, then they can’t tow it. And also, when they’re doing an inventory search of it, it has to be clear that their inventory search was really actually to catalog all the information, all the things inside. Not just as an excuse to get inside and look around. So, if you don’t actually… The police officers don’t then actually catalogued the things inside, then potentially their search can get thrown out.
Indiana Court of Appeals Opinion – Quintinna v. The State of Indiana
Teri Ulm – So we’re moving on to another Court of Appeals opinion. Quintinna v. The State of Indiana. Now, in this case, there’s a Hendricks County Sheriff’s department that received a tip that Quintinna was traveling through the county with narcotics in his vehicle. Numerous officers were following him, and Quintinna failed to use his turn signal, and he was pulled over. Can the cops pull you over off a tip, or do they have to have another reason? Like did they have to wait for him not to use his turn signal? Or could they have pulled him over just off of the tip?
Kassi Rigney – The tip alone was not enough. They had to wait for the traffic infraction. So yeah. And they do this regularly. And it does not matter that they had an ulterior motive. It was… What matters is that that they waited till they had a lawful justification to initiate the traffic stop. Because that’s the seizure of a person. And then the way that they do this, like OK, so they think there’s drugs. So they wait for the traffic infraction. While they’re issuing the infraction, the summons for the infraction, then they run the canine. Because if normally, you know, unless you just happen to get stopped by canine officer, there’s not gonna be a dog available. And they cannot extend a traffic stop for the sole purpose of getting a dog there. But in this case, they were ready. You don’t have the canine to get there and get it done. But yeah, the tip alone wasn’t enough. It doesn’t mean that a tip in certain circumstances might be enough, but in this case, it clearly wasn’t. They didn’t think it was.
Jake Rigney – Yeah. There are scenarios where a tip is enough. Not the one you’ve explained. But if it comes from, especially if it is an anonymous, and it comes from somebody the police knows, and that they know have provided them with credible information previously. And then also the circumstances of their tip match what they actually see when they go looking, you know. So, if a person that they know who’s given them reliable information before says, guy named Jeffro. No wait. Not Jeffro. A guy named Chad will be driving a red Camaro at third and Washington Street, and he’ll be there at about 12:45. And they’ll be smoking a cigarette because he always smoke cigarettes. Because I know Chad. Chad loves him some camel lights. And so the police officers sit there at Washington and Third Street, and they wait. And sure enough, at 12:45 Chad rolls up with a a cigarette in his mouth driving a red Camaro. And the tipster says, and he’ll have a kilo of cocaine in his car. That’s different, and that’s probably good enough. Kassi says it’s not.
Kassi Rigney – And the reason why I say I would argue that it’s not. Not that a trial court might not find it okay, is because all of those things that you said are things that a casual observer could tell you about Chad. Like somebody who lives in the neighborhood, Like identifying who… Where someone, you know, what kind of car they drive. You know, being able to see anything that is that a public observer could tell there a tipster to take it to the next level needs to disclose some kind of special information. Like inside information. You know, Chad drives, or anybody that lives on Chad’s street, frankly works. That is, you know, officer, wherever… could tell you what car he drives, Um, so.
Jake Rigney – I got some search and seizure law wrong apparently. So I’ll definitely be sleeping on the couch tonight.
Kassi Rigney – No. No. It’s a common mistake. And like I said, these are very close, close calls. And to do a temporary detention it’s a reasonableness standard, and I think where a tip comes in… If someone’s… If the tip is oh, somebody has, you know, smoking marijuana vs an active, you know, there’s a kidnapping or something. The court’s going to give the law, the police, more leeway in detaining people to pursue something that’s greater interest than less interest. But again, you know it’s not jump into a new arrest. It’s allow you to do more of an investigation
Waiving your Right to a Jury Trial
Teri Ulm – In this Court of Appeals opinion, with Quintinna, I noted that it mentioned that he waived his right to a jury trial, for which he should receive some mitigating credit. Am I understanding this correctly? That if you waive your right to a trial, that it goes in your favor?
Jake Rigney – At sentencing, yes. So when you say sort of aggravating and mitigating circumstances that that means they were talking about what sentence he got for the crime that he committed, And the court recognized… While the court recognizes that everyone has the right to a jury trial, they also recognize, the law recognizes, that if everyone had a jury trial, the system would collapse. The government cannot possibly afford to prosecute even 10% of the people that they arrest. So the system would not work if it weren’t for plea agreements. And if it weren’t for people waiving jury. So people waive jury sometimes, and then have their case heard by the judge instead of a jury. And the judge decides whether they’re guilty or not guilty. And it cuts way back on the amount of time the trial takes, and the amount of court resource is that you have to dedicate to the entire process. And so it sounds like he waved jury and had his case heard by a judge. And they gave him some mitigating credit on his sentence for doing that because it didn’t cost the state has much money, time and resources to bring him to justice.
Teri Ulm – I find that interesting. I don’t know, just waving one of those rights would work in someone’s favor and maybe lessen their sentence.
Jake Rigney – Yeah. Not every judge, I think, will recognize that as a mitigator. And it’s not list… I don’t think it’s listed in the mitigation section of the sentencing statue. But the court is allowed to consider other things. There’s like a catch all at the end, I think that says.
Kassi Rigney – The statue does not mention waving from jury to bench, but it certainly talks about acceptance of responsibility. And that’s something that if you get to sentencing by way of admission, you were perceived as someone who’s going to be more receptive to attempts to rehabilitate you. So you definitely get a mitigator there. I did not catch the separation of just from, I mean, it’s true from a jury to a bench trial. But the statutory mitigator is accepting of responsibility, which is trial versus no trial versus what type of trial.
Marijuana laws in Indiana and in Indianapolis
Teri Ulm – We’re gonna go back in touch on the marijuana laws in Indiana Now, Indiana has its neighbors, Illinois in Michigan, where it is legal to use marijuana recreationally. And then Ohio, maybe another neighbor, they can use it medically. And there was some polls conducted by INORML and the state legislators back in 2019, that indicated that the majority of Hoosiers, up to 90% of them, approved medical marijuana, and 80% of them approved marijuana for recreational use. My question is, why do the law’s not reflect what the citizens think?
Kassi Rigney – Well, for one, in my experience, most of those people who are responding to those polls don’t participate in the political process. And if you’re one of those, well, I’m not gonna do anything. Well, no one’s paying attention to you. Did 90% of those people not participate in the process than you’re a non-issue? And what you want is a non-issue. Because the participants are saying something else. I guess the ultimate question comes down to why is this isn’t just drugs. This is why our elected officials not listen to the people, um, money. The answer the short answer, in my opinion,
Jake Rigney – Yeah, and we don’t make them, right? We have a two party system, which means if the two parties agree they’re going to do something a certain way, the rest the population doesn’t really have a lot of other choices. You know, they can pick from the democrat that doesn’t want to legalize marijuana or the republican that doesn’t want to legalize marijuana. And so marijuana doesn’t get legalized. It’s a bug in the system. It’s not really one that they necessarily contemplated when they were creating it. But here we are. 220 years later. Limping around. Trying to figure out how to fix it. And it’s, um yeah, but beer companies. They like being the, uh, the only legal, not the only one, but they like being a legal drug. They would like it very much if they were the only legal drug.
Kassi Rigney – Pharmaceutical companies don’t want you growing your medicine in your backyard. I mean, we’re a capitalist country. This is the…. money makes the world go round. I mean, they’re in charge. And again, if you don’t vote, then yeah, you’re not counted, and your voice…
Teri Ulm – You have to vote.
Jake Rigney – And it’s weird to… It’s also weird when you were… You have to remember, I mean, these are 1,000,000,000 with a B dollar companies, right? So, a couple $1,000 here and there to a state senator’s campaign, is nothing to them. It’s like, I mean, it’s not even a penny on the dollar. It’s three molecules of a penny on the out of a dollar. So it’s not even that expensive, to, I don’t want to say buy the vote, but it’s not even too expensive to make the kind of donation necessary to see that you get the proper type of recognition from your government. If you if you get what I’m saying. It’s easy for businesses to prevent things, big businesses especially, to prevent things like that from happening. If that’s what they want.
Teri Ulm – So, my takeaway here is that people should vote and vote according to what they think. Choose candidates that, or support candidates that, reflect their their views.
Jake Rigney – Yeah, I mean, look, lots of people are in favor of recreational use of marijuana. But how high up on their list is it, right? Will you will you vote for the guy who will legalize marijuana if he also wants to outlaw abortion? Will you vote for the guy who wants to legalize marijuana if he also wants to do some other…. privatized the entire government? Or do some other crazy things that you don’t want to happen? You know what I mean? Look, I think they ought to legalize marijuana, but it’s not my number one issue, you know what I mean? What, For example, he wants to legalize marijuana, but he also wants to repeal Obamacare. right? There are certain libertarian right wing republicans who you could probably paint in that with that brush, right? They would legalize marijuana, but their trade off is you gotta repeal Obamacare. Or outlaw abortion or something like that, which they could do with a constitutional amendment. And I don’t think I’d trade marijuana legalization for either of those things. Because my health care is a lot more important than using marijuana legally, and so is women’s right to choose. So that’s the other way that they can create this problem, right? Is either don’t have a candidate to vote for the one that you’d want to vote for on that issue, is wrong on some other issues that are more important to you.
United States Court of Appeals Opinion Regarding Federal Executions
Teri Ulm – There is a recent United States Court of Appeals opinion that wiped away a lower court’s opinion that blocked the federal government from executing federal inmates. And this directly effects four federal inmates in the U. S. Penitentiary in Terre Haute. Do you know anything about this opinion, and have any thoughts on it?
Jake Rigney – I do now, because you send it to us to read to prepare for this. No more 88 page opinions. Okay, Teri. That was not cool. It was really not cool.
Kassi Rigney – And I’ll have to say Jake told me the pages and gave me a synapses, and I decided that his knowledge was sufficient for purposes of the podcast. So I’ll direct all questions to him.
Jake Rigney – She gave me her synapses, and I gave them back.
Teri Ulm – There’ll be no more. 88 pages.
Jake Rigney – Thank you. So look, I didn’t read that whole opinion. I’m gonna be honest with you. If there’s a… A lawyer does not read an 88 page opinion unless it is about the… Well, I shouldn’t say that. I don’t know. I didn’t read the whole 88 page opinion. What I can tell you is that a several inmates were arguing with the federal government about whether or not the federal government had to follow just the important parts of the state’s regulations of their death penalty, statutes, or every single little regulation of it. If you want me to go into more detail about the dispute, I can. It’s kind of weird and complicated because the federal government is jacked up. So here’s the deal. So for a long time, the federal government just executed people the way they wanted to execute him, right. Hanging, I think, usually was how they did it. And then in the twenties or the thirties, they decided they didn’t want to have their own way of doing it anymore. So they said, if you’re going to execute a person, you execute them based on the laws of their state. And I believe the state they chooses is the district… the state that the district is in, that the federal District Court is in. But the inmates and the federal government are arguing about whether what that means is they have to follow every rule that the state has in place or they only have to follow the that sort of top line rules. That means, is it a hanging, or lethal injection, or the electric chair, or some other means of execution. So that’s what they were arguing about. The District Court said, the federal government has to follow all the rules. Appeals court said, no they don’t. All they have to do is abide by the the basic top line requirements. And those guys will probably appeal to the Supreme Court. They’ll also probably lose at the Supreme Court.
Jake Rigney – One thing that did strike me about the whole thing, the whole procedure, was how in a hurry the Justice Department was to execute these guys. They’ve been… they have been stayed for years while they were waiting on new regulations or something like that. Waiting for somebody to promulgate some new regulations; tell them how to kill these people. And once those were finally regulated, the government was like sweet, you’re getting executed like next week. And they’re like, wait. And so they filed a motion in federal court, and then the feds are like, no, throw this out, Judge. We need to execute these people right away. And the judges, like even the appeals court judge, I think noticed… Noted… Somebody noted, you guys have been sitting around on this on these guys for years, and now you can’t wait, like two months for us to have a normal legal process before you execute them. At every stage just recently, because obviously the bar administration is now running all that, um, at every stage. Now they’re like, please, just hurry up. Hurry up, Judge. Hurry up. Let us execute them. Please let us kill these guys. Hurry up. Let us kill these guys. Um, which is just a weird position for your government to take, right? You would think the government would want to be very deliberative and very cautious about who they execute and who they don’t. But apparently the bar administration is all about firing that juice chair up, and getting some people sent on to their next situation.
Kassi Rigney – Party of pro-life.
Jake Rigney – Yeah. Pro-life, for life. Right up until we want to execute you.
Teri Ulm – So there is a hot thing on Netflix right now, as everyone staying at home… It’s called Tiger King. He is also a Florida Man. And recently Trump was asked to pardon Tiger King. And I don’t watch… Trump said he’ll consider it,
Jake Rigney – But he won’t.
Teri Ulm – That that was his response to the reporters… Is that he’ll consider it, or look into it. I didn’t know much about Tiger King, so I did a little research. And he was this guy, that kind of like a zoo keeper of animals, that he probably shouldn’t have, like cheetahs and leopards and tigers and, snow leopards. He was also smuggling drugs, and he would like, cut snakes open and put cocaine in them and sew them up.
Kassi Rigney – I think you mix that up. I watch that. Someone was doing that, but it wasn’t. He’s in prison for trying to kill that Carol Baskin woman. If you hear all that stuff.
Jake Rigney – Is it Carol Baskin, or Carol Baskin’s husband?
Kassi Rigney – She… No. They think Carol killed her husband.
Teri Ulm – Carol Basket… Killed her husband… Wacked him…
Kassi Rigney – Which is an independent thing from… Tiger King tried to hire someone to kill Carol. She is a big cat rescue in Florida. His cat zoo was in, like Iowa or something, but the he tried to hire someone in Florida. That’s what he actually went to prison for.
Jake Rigney – I’ll tell you, I know a lot about these Tiger King’s. People say I’m a Tiger King. In fact, I used to be the king of all tigers. But I’m gonna look into that. We’re gonna look into whether or not we are going to pardon the Tiger King. The king of tiger. Tiger King. That’s right. No collusion…
Teri Ulm – That wraps up this episode from Tales From the Brown Desk.
Jake Rigney – Thanks, Teri. And thanks for listening to Tales from the Brown Desk. Remember, while we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create attorney client relationship with any listener. Our advice may not be applicable to some legal issues. Please consult with an attorney, you have hired, to review your legal situation before you attempt to apply the things we have said to your case. If you’d like to schedule a consultation to talk to one of us about your criminal law case, please call us at 317-430-7370. If you have questions you’d like to be read on our next podcast, please email Teri at email@example.com, and mention your name and your hometown and title your email “podcast question”. The attorneys at Rigney Law do not comment on their current pending cases. Nothing we have said in this podcast is a comment on a case we’re currently working on. Even if your name is Chad or if you’re from Florida. Take care.