[00:15 - 00:46] JAKE: It's Friday afternoon. We've locked the door because I don't want anyone to come in here and see how bad I am at this. Like, I am awful. Even my self-help app is like, Jake, I know we said you should be open to new experiences, but this isn't what we meant. You kind of suck. And also because it's time for another edition of our bi-weekly podcast. Bi-weekly now. Is that right, Teri?
[00:46 - 00:47] TERI: That's right.
[00:47 - 00:48] JAKE: Bi-weekly.
[00:48 - 00:49] TERI: Every other week.
[00:49 - 02:20] JAKE: Every other week. Too much work to do, to do it every week. And lose money doing it. So thank you. Uh I'm Jake Rigney of Rigney Law LLC. With me, as usual, is my law partner, wife, and a self-actualized bucket of boiling rage water in a very lovely business dress today. Kassi Rigney. Teri Muehlhausen is our host, manager, editor, co-producer, topic collector, floor-demand monitor, email screener, and the hardest working podcast producer I've ever met. I mean, I've only met one, but she's working so hard at it. I feel guilty that I am entitled to one-third of the revenue that this podcast generates, even though it isn't generating any. We're making no money, and I still feel guilty. 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 the rotting core of American life that Pink Floyd warned us about. It may not be suitable for children. Pink. Floyd Patterson, Floyd Mayweather, Floyd Mayweather Sr. Floyd Mayweather Jr. being the other one. George Floyd, anyone named Floyd. Floyd is an objectively funny name. Floyd. Say it with me, you guys. Floyd. Yeah, see what I mean? Anyway, here's Teri.
[02:20 - 02:24] TERI: Hi everyone. Hi, Jake. How are you?
[02:24 - 02:27] JAKE: I am uh okay, Teri. How are you?
[02:27 - 02:31] TERI: I I'm pretty good. I'll accept okay. Yeah. Could could be worse.
[02:31 - 02:32] JAKE: Yeah, yeah, yeah.
[02:32 - 02:34] TERI: Hi, Kassi. How are you?
[02:34 - 02:36] KASSI: Hi, Teri. I'm doing well today. Thank you.
[02:36 - 02:38] TERI: Your dress does look nice.
[02:38 - 02:39] KASSI: Oh, thanks.
[02:39 - 03:13] TERI: No problem. So welcome back to Tales from the Brown Desk. And this week we have a brand new Court of Appeals decision out of Hendricks County where the trial judge took the victim off the stand. We are going to talk about flock cameras. You know, those little solar poles that photograph your plate on the way to Kroger. We are going to try a new segment. Jake suggested a Glock switch reference in it, and he's going to get one. And like always, we're going to wrap it up with Florida Man. Are you guys ready?
[03:13 - 03:17] JAKE: If you told me we were cutting Florida Man, I would have just walked out of here. I had
[03:17 - 03:21] JAKE: to nope.
[03:21 - 03:58] TERI: No, Florida Man is staying. So we're starting with the Court of Appeals case. It's state of Indiana versus Scott Manges. So this case, it was decided just recently, August 27th. It came from Hendrix Circuit Court before Judge Robert Freeze. The case came to the Court of Appeals via an interlocutory appeal. Now, before we go further into this case, can you tell everybody what an interlocutory appeal is and why we might be talking about a case before it's even over?
[03:58 - 05:06] JAKE: Yeah, I can. An interlocutory appeal is an appeal from the trial court to the court of appeals, but you do it before the case is over. Essentially, you argue that the issue that's involved is so important that we ought to get a court of appeals ruling about it before the trial court finishes the case. So in the one I did previously, um, you know, we had a suppression issue. You can't do it automatically. You have to ask the trial court to let you do it, and then you also have to ask the court of appeals to let you do it. And if either one of them say no, you just don't get to. If they both say yes, then you can take the case up to the court of appeals, argue that single issue, and then take that ruling back to the trial court. And if the court of appeals says the trial court is wrong, then the trial court has to change their ruling. And you know, then if you win, thus you get the ruling that you want instead of the one the trial court gave you.
[05:06 - 05:28] TERI: So back to the appellate court at hand. The issue started when the state did not turn over the audio video of the victim's first interview with the police. And the defense said that the recording mattered, but the judge treated the missing file like a discovery death penalty and took the witness away. Do these recordings matter? What are these first interviews?
[05:28 - 05:46] KASSI: It's the first time the victim gets on, you know, is making a record of their statement, generally in a setting that's calm and you know, guided by the detective versus like, you know, the report made on the 911 call.
[05:46 - 05:54] TERI: So why do you think this defense is losing his mind about not having that one first interview?
[05:54 - 06:12] KASSI: Well, I mean, if there was exculpatory evidence in there, I think that absolutely would be worth um jumping up and down. But I didn't have heartburn with the Court of Appeals ruling, and this ultimately did not seem like an appropriate use of exclusion of a witness under the circumstances.
[06:12 - 07:40] JAKE: Yeah, so those preliminary statements that they give the police, they often can result in what are called inconsistent statements. You know, that first statement this is not what happened in the case we're talking about, but just generally, like, right? The witness could say, okay, well, the shooter had blue socks, right? And then in then when the person testifies, if they say the shooter had red socks, that's inconsistent, right? You are allowed to impeach them on the stand with that inconsistency to try to undermine their credibility. But you can't do that if you don't have the statements. There have been all sorts of different ways that's happened. Um, you know, sometimes a witness will identify the wrong person, or a witness will deny that things happened, that later they admit happened. Like there's all sorts of different ways it can go. Those statements are kind of useful to defense for a couple of different reasons. Um I think the answer to your question is probably that the defense attorney jumped up and down about it because the state gave him the opportunity to do it. Right. I mean, it is not a challenging legal idea that the prosecutor is required to return over the recorded statements of their witnesses. Like this is basic discovery that every prosecutor knows to do.
[07:40 - 07:58] TERI: Now, wrapping this case up, so the state went to the Court of Appeals and said the judge cannot exclude the victim. And then the Court of Appeals agreed. They said the trial court abused its discretion, the case was reversed and remanded. Is that your take on the case?
[07:58 - 09:25] JAKE: I like what Kassi said. Telling a you know an alleged victim that they can't testify because the state didn't turn over a recording is kind of a wild response. Wasn't involved in the case, don't know anything about it. It it's just a a really extreme response, right? Um now usually what happens is you know the defense attorney says they haven't given me this discovery yet, they should have given it to me, give me more time to prepare with this discovery. And usually a judge is gonna say, Okay. Um usually judges don't exclude witnesses over that. But I have had that, I have seen judges threaten it. You know, it is also possible that the judge threatened it in this case and thought that that would make the state snap out of it and provide the discovery, and then when they didn't, he felt like he was you know, he had to do it. You know how uh if you're a parent, um, you know, you threaten some awful thing for your kid thinking that'll really motivate them, right? And then if they call your bluff, you're stuck like doing the awful thing that you didn't want to do, but threatened like I'll take your favorite blanket away, something like that. You know, it is possible that that's what the judge did here, and the state still didn't get it together. I you know, I don't know.
[09:25 - 10:24] KASSI: The bigger concern to me is just the acceptance of the idea. So the defense requests this, they say they don't have it, just the acceptance that nobody did a thorough check originally, and it's just that's okay. Uh, that's a heavy burden and responsibility that the state and police have. And when you can't be relied on to do a thorough and honest search, it really undermines the credibility of the system and reliability. I mean, it's just okay, we're over we're overworked and we're busy and we make a mistake. Well, take the time to do it right. People's lives are at stake here. And like I tell callers all the time, even if you're right, if you have to hire me and we win, it's lots of money, it's time, it's energy, it's motion. I mean, even if you win, if you had to hire a lawyer, you lost something, right?
[10:24 - 10:30] TERI: Yeah. Do discovery violations get punished? And what does that look like?
[10:30 - 11:36] JAKE: Like a sanction, like Yeah, it is in fact called a sanction, and the trial rules essentially say the judge can issue whatever sanction he deems appropriate. Generally, they don't go to the extreme that this particular judge went to. In this case, he did. There's not a rule that says like the judge can't do that. I think what they decided in this case was that he abused his discretion by doing it under these circumstances. Probably because the better result would have been to order the state to turn it over and give the defense more time to use it as though they had had it all along. Sometimes that does cause delays in the case, and the delays should be attributable to the state in that situation. And you can run afoul of the speedy trial provisions of the Indiana and Federal Constitutions and Indiana Criminal Rule 4 by dragging a case out too long like that. But that's different than you know causing a delay of a couple of months because you turned something over late. That's I assume that's probably how the Court of Appeals wanted the trial court to really
[11:36 - 11:37] JAKE: handle it.
[11:37 - 12:29] TERI: Now, in the last episode, the cops lost the search, and in this one, the prosecutor almost lost the whole case because the document wasn't in the file, which is a decent time to talk about machines that are keeping their own file, even if it is in the cloud. You've seen them skinny pole, solar panel, camera on top. Looks like a parking meter that went to a tactical trade show. Well, that is Flock, and we have a lot to go over in regards to them. And we are going to talk about what Flock says it is, what the patents say it can do. So here is what Flock says about itself, and I will call it the brochure. All of these claims are found on their website and on their blog. They say they are a public safety company. They sell automated license plate readers.
[12:29 - 12:30] JAKE: True.
[12:30 - 13:26] TERI: They will tell you the camera looks at cars, not people. The cameras see the plate, make, model, color, time, and direction of vehicles. They call that a vehicle fingerprint. And they will tell you it finds stolen cars, missing kids, homicide suspects. And they will tell you that they do not do facial recognition, nor do they store biomatrix. They say their cameras don't take photos on a continuous per minute or time-based schedule. Instead, it captures six to twelve images per vehicle session as the car drives through its field of view and that their customers own the data and they don't sell it to anyone. Except their customers. Right. Yes, that's the brochure. Now let me ask you if a company tells the city council that we photograph cars and not people, does that sentence do any legal work or is that just marketing?
[13:26 - 14:34] JAKE: I mean, if they're under oath and they say that, then it needs to be true. But if they're not under oath, there's very little uh limits on freedom of speech for in uh capitalist society. They're marketing, they're able to use flexible language. Yeah, so I actually I taught a class on this at Franklin College. Um we covered this just briefly. There are false advertising laws, but they're not particularly strong. The First Amendment does offer some protection to advertising, which makes it like not as hands-off as political speeches, but um but it does still have some protection. Um Central Hudson is the case that basically set that out from the US Supreme Court. They can't just straight up lie. Like absolute falsehoods are not protected by the First Amendment. Um but they have to tell you the truth, but they don't have to tell you the whole truth and nothing but the truth, if that makes sense.
[14:34 - 16:31] TERI: Yes, it does. Now, here is what you find when you stop reading that brochure or their website and you start reading their patents. The vehicle fingerprint is a real patent, and it's not just about the vehicle. It's marketed as modern vehicle recognition software that helps identify the vehicle, not just read the plate. That means searchable images, time and location, plate data when available, and vehicle attributes. And it can even find the if there's wheels on a car that were not factory issued. You can search blue pickup truck with a kayak, and the network will find that truck even if it never got a plate. Now let's focus on the US patent number 11416545, which is owned by Flock. The title is System and Method for Object-based query of video content captured by a dynamic surveillance network. That is not a brochure sentence. That is the patent. The patent's own example of an object is a human being, a vehicle, an animal, and it describes the system that takes photos and scans the pictures for objects. Their cameras analyze the pictures using an AI algorithm, and then it stores the data in a cloud, which is a searchable archive by what is in the picture, not just the time and place. Flock will tell you that the cameras on 38th Street, just east of college, are not doing facial recognition today. Their public statements distinguish the license plate cameras as vehicle focused, but their patents describe something deeper. So if a camera can find a car via a bumper sticker with no plate at all, are we still pretending that this is the same thing as a cop glancing at a plate at a red light?
[16:31 - 17:07] KASSI: I mean, they're pretending it is, but I mean, I don't, you know, we talked about this before, you know, if you're on a public street, you're subject to, you know, the police can follow you around if they want to, but I do see the the different the dragnet in this is that you know you're basically being recorded all of the time, everybody all the time, and without any any basis. I guess making the distinction that I guess if you have a police officer that's out and they're beat that they're okay to follow someone around and whatnot, but that's different than everybody being followed all of the time without any basis.
[17:07 - 19:21] JAKE: You know, it'll be interesting to see how all this shakes out because I also am not okay with what you just described, but I don't think the Constitution or the Court of Appeals or the Indiana Supreme Court will stop it. Like I don't think the courts are where you're gonna solve any of this. I think that they will say you don't have an expectation of privacy in public, so it's not a search. I think they'll say if the flock camera starts X-raying the insides of cars, I just gave them a really good idea, right? They're like, oh man, we'll X-ray and we can find the cocaine hidden in the compartments. Oh, I shouldn't have said anything. Um if if the cameras start being able to X-ray the interior of your car where people cannot normally see from a public place, I think that would violate someone's expectation of privacy. But I think if it's taking pictures through windows while you're driving down public streets, I think the Court of Appeals and the Supreme Court will say that you don't have an expectation of privacy there. They can take your picture. Now, the way we do solve this, and the way I hope we all eventually decide to solve it, is by convincing our local jurisdictions not to pay them to do this. The courts are not going to they're gonna apply our normal case law to it. The politicians will do what we want them to do if we all tell them that that's what we want them to do, right? Not if some of us tell them that that's what we want them to do, but um and I think we've started to see that in some places. I think Fort Wayne just canceled their contract with Flock. Um and so like that's gonna be the solution, is sort of the oh they're playing our song. I literally have not said that since the last time we heard sirens on a podcast. Uh the police are going by our office right now, probably because a flock camera just um notified them of a stolen car. Yep. We have a flock camera, like maybe, I don't know, three or four blocks west of our office, too.
[19:21 - 19:22] TERI: They they know we're here.
[19:22 - 19:23] JAKE: Yeah, they do.
[19:23 - 19:24] TERI: They do.
[19:24 - 19:25] JAKE: Right.
[19:25 - 19:28] TERI: So that is it for flock.
[19:28 - 19:28] JAKE: Thank god.
[19:28 - 20:09] TERI: We don't have any more time to talk about that today, but we are putting a switch in the next segment instead. The doors are locked. This new segment, we're calling it the Glock Switch. It is the brown desk full auto round. Five questions, fast, no law school lectures. Today's house rules answers have to be exactly four words. That's it. If it's too good, I'll let it go for a few seconds and then pull the trigger again. Okay, Jake, Kassi, take cover.
[20:09 - 20:10] JAKE: Who's first?
[20:10 - 20:15] TERI: You'll have to fight it out. If the cops skip Miranda, does the whole case get thrown out?
[20:15 - 20:17] KASSI: Not necessarily.
[20:17 - 20:20] JAKE: That's only two words.
[20:20 - 20:26] KASSI: It depends. Maybe, maybe.
[20:26 - 20:32] JAKE: It depends, maybe, maybe. That was four words. No, you're still screwed.
[20:32 - 20:39] TERI: There you go. Okay. If you ask an undercover cop if they're a cop, do they have to tell you?
[20:39 - 20:42] JAKE: They absolutely do not.
[20:42 - 20:47] TERI: Good job. Okay. You have nothing to hide. Should you let the cop search your car?
[20:47 - 20:50] KASSI: You should always deny consent.
[20:50 - 20:52] TERI: That's five.
[20:52 - 20:57] KASSI: I know. You should deny consent.
[20:57 - 21:03] TERI: Okay, question four. If the drugs are not yours, can you still be charged with possession?
[21:03 - 21:05] JAKE: Yeah, you totally can.
[21:05 - 21:09] TERI: Okay. If you are innocent, do you actually have to talk to the police?
[21:09 - 21:12] KASSI: You never talk.
[21:12 - 21:21] JAKE: Bro. Sorry, I helped you with that one a little bit.
[21:21 - 21:28] KASSI: I've never had to count my words. You want to add math into my thinking? This is this is difficult.
[21:28 - 21:34] TERI: All right. We have a spare one last question. Is a Glock switch legal if you never screw it on?
[21:34 - 21:35] JAKE: It is not
[21:35 - 21:36] JAKE: legal.
[21:36 - 21:46] TERI: Good job. That is the switch. And we are going to cut for a short commercial break. And when we come back, we will bring you the latest Florida Man news.
[21:46 - 22:12] JAKE: Today's update on Florida Man is brought to you by the food you eat. Do you need to slowly kill yourself with pesticides, preservatives, cyclosporiasis, malnutrition, E. coli, salmonella, andor. All of the above? If so, you should try the food you eat. Now with even less government oversight than before. Here's one of their happy customers.
[22:12 - 22:43] KASSI: I know eight train trips to the bathroom every day isn't quote unquote normal, but everyone knows government oversight is just code for communism. The only way we can all be truly free is if a multinational corporation is allowed to shave off three pennies per unit off their bottom line by selling me cabbage covered in bacteria the government doesn't even have a name for yet. If my pork fritter didn't die in the same two by two pen it was born in three years ago, China wins.
[22:43 - 22:53] JAKE: This message not actually brought to you by the food you eat. If your food could talk, you probably wouldn't eat it. Woo woo.
[22:53 - 23:04] TERI: Referencing reporting from Yahoo News, Florida man allegedly stole a car and he ended his getaway by driving straight into the parking lot of the county jail.
[23:04 - 23:05] JAKE: Yeah.
[23:05 - 23:44] TERI: Yeah, it's an unusual ending. It was captured on camera and shared by the Orange County Sheriff's Office on Facebook. According to the post from the office, deputies were pursuing a stolen Chevy and Paula. When the driver unexpectedly turned into the jail's parking lot, the department shared a mix of dash cam, body cam, and aerial footage. The suspect parked the car in the jail county lot and then attempted to flee on foot. He jumped the fence and headed towards a nearby pond. Body camera footage shows the deputies jumping the fence after him. He was arrested ending the pursuit on jail property.
[23:44 - 23:52] JAKE: See, this it it was starting to make Florida sense to me when he went to the jail parking lot because I was like, he just doesn't want to ride in the wagon.
[23:52 - 23:53] TERI: Right.
[23:53 - 23:56] JAKE: Right. He's just saving himself some time.
[23:56 - 23:57] TERI: Turning himself in.
[23:57 - 24:09] JAKE: Right. But then he got out and ran. That was objectively dumb, even for Florida man. You don't drive to where there are more cops and then start a foot pursuit. We we expect better Florida man. We really do.
[24:09 - 24:14] KASSI: I question whether he knew he was turning into a police department.
[24:14 - 25:30] TERI: Finally, one public service announcement. Florida man should not be trusted with kids. Because Fox 13 News is reporting the Florida man was the fifth person that was recently arrested in a disturbing case that started this last February, where a one-year-old toddler drank from a sippy cup that allegedly had methamphetamine in it. According to the sheriff's office, Florida Man poured the contents in his own cup into the children's cup. So he took his cup and he poured it in the child's cup. And the parents later found the bag of meth sitting at the bottom of the cup. The child started vomiting and was rushed to the hospital and treated for a possible overdose. There were four adults living in the home back in February when the incident happened and they were arrested. The detectives kept working the case. And two of those people that were arrested told the investigators that they did watch Florida Man pour the meth into the Sippy Cup. So then a warrant went out, and just last week they picked him up and they charged him with child neglect, causing great bodily harm, possession of drug paraphernalia, and that is our week's Florida Man dispatch, and all I have from the desk.
[25:30 - 25:38] JAKE: Here's an interesting question about that. Um can they charge him with dealing meth to the baby? What do you think, Cassie?
[25:38 - 25:55] KASSI: Under Indiana law, it is only a transfer of the contraband from one person to another. So uh yes, under Indiana law, there's no exchange for there's no sale, even if you're holding it for your body.
[25:55 - 26:03] JAKE: A shameful Florida man. We think you can do better. How long do you think before Florida baby turns into a Florida man?
[26:03 - 26:06] TERI: Um puberty.
[26:06 - 26:12] JAKE: Eight to eleven years, we'll be still doing this podcast. Well, a show on him. Yeah.
[26:12 - 26:18] TERI: Remember that Florida baby drinking meth out of his sippy cup.
[26:18 - 27:57] JAKE: Oh, Florida man never ceases to amaze. Um, thank you. Goodness, what happened? It's been so long today. Oh my gosh. Thank you for listening to Tales from the Brown Desk. Please remember, 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 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. Tales from the Brown Desk is produced by Rickney Law and Terry Muhlhausen. If you want to ask a listener question, email Jake at Jake at RickneyLawIndia.com and entitle your email podcast question, and we'll read it on our next podcast. Make Terry's job easier. We all have kids now. This shit is hard. Buzzsprout says this podcast will get 173 downloads. That is an insane number. I don't think that's correct. I think we're going to disappoint them. But Google says that if your podcast receives more than 30 downloads in the first seven days, it's an above average podcast. So congrats, you guys. We are above average. It's amazing. It's all thanks to the 72 people who listen to our podcast, plus whoever however many were on YouTube. I don't know, it's like 90 or 100 total. Our newest faraway listener is in Brasilia. Do you know where that is?
[27:57 - 28:01] TERI: I do. Brazil.
[28:01 - 28:55] JAKE: Trick question. Yes. It is the capital of Brazil where they speak Portuguese. So hola? I don't even I don't know any Portuguese because I'm a dumb American. Oh, 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 are currently working on, even if your name is Paolo from Brazil, or if you just ate ahead of what is covered in Cyclospora. Take care, everyone.