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The State Thinks She’s Honest—So You Must Too: How the Indiana Court of Appeals Just Gave Prosecutors a Vouching Hall Pass

Wed, 23 Jul 2025 00:19:19 GMT

Walter v. State , or, "How to Make 704(b) Meaningless in 300 Easy Words"

Let’s set the scene: The prosecution’s star witness is a co-defendant who flipped, got a sweetheart deal, and now has every incentive to lie. You, as a defense attorney, want to show the jury this cozy arrangement to demonstrate bias and motive to curry favor with the State.

Good. That’s how it’s supposed to work. That’s literally why the law permits a defendant to bring in evidence of a plea deal.

But what happens when the prosecutor beats you to it—and decides to preemptively introduce the agreement themselves, complete with a letter spelling out that they only intend to call the witness if they decide she’s “truthful and honest”? What if the State puts that letter in front of the jury and then looks shocked—shocked!—when you say, “Wait a minute, that sounds like vouching”?

If you guessed the Court of Appeals would laugh that argument out of the room, congratulations—you’ve been reading Indiana appellate opinions long enough to develop Stockholm Syndrome.

Case Background: A Love Story Built on Theft, Fraud, and the Court’s Suspension of Disbelief

Before we rip into the legal absurdities blessed by the Indiana Court of Appeals in its July 16, 2025, opinion Walter v. State, 24A-CR-1786, let’s review the facts—because understanding how we got here is crucial to appreciating just how off-the-rails the Court’s logic went.

Meet Donald Walter, Jr. and his wife, Toni—a couple who apparently decided that if financial security wasn’t coming fast enough through honest work, they’d just write themselves a few checks. Or rather, Toni would, while Don managed the accounts. Because nothing says marital teamwork like synchronized embezzlement.

Toni had been the bookkeeper for a small business called Coogle Trucking in rural Benton County, Indiana since 2005. By 2013, she was fed up with the job, nearly quit, but was lured back by empty promises from the owners that things would change. Spoiler: they didn’t.

So, around 2016, Don floated an idea: “Why don’t you just take money?” Toni agreed. The scheme started small—extra checks here and there—but quickly snowballed into full-blown financial fraud. Toni began writing herself bonus checks and cutting fraudulent checks directly to Don. These were laundered through the company’s books to look like payments to legitimate vendors. Slick, right?

The couple operated two bank accounts: one for Toni at Staley Credit Union and one for Don at Regions Bank—cleverly referred to in trial as “Account 703,” a number that apparently became the financial equivalent of Voldemort in the courtroom. Don managed the money, paid the bills, and wrote checks off the stolen funds. In short, he played the CFO of the Walter Family Criminal Enterprise.

Things were going well. Really well. We’re talking about ATVs, cars, vacations, home renovations, and eventually, plans to build a new house. Toni kept the checks coming until COVID-19 hospitalized her in late 2020, interrupting the scheme’s cash flow. But after a brief period of forced financial austerity (during which they had to—gasp—sell some toys), Don got her back on the theft train. “All the fun toys came back,” Toni testified.

The couple even went so far as to take out a mortgage to build a new home—without disclosing Account 703 or the stolen income, which they also conveniently forgot to report to the IRS and the Indiana Department of Revenue. So not only theft, but mortgage fraud and tax evasion. A true trifecta.

Then, in mid-2022, Toni accidentally stumbled across an email on her boss’s account indicating she was being investigated. When she told Don, he didn’t exactly spring into cooperative transparency. Instead, he stormed out of the house, came back later, and began what can only be described as a gaslighting roadshow. He pressured Toni to take the fall entirely—coaching her on what to say, telling her to deny his involvement, and berating her when she wavered.

Eventually, the authorities got involved. The Indiana State Police executed a search warrant on their home. Don greeted them, watched them walk in, and then—like any totally innocent man—immediately left to go withdraw $80,000 and hand it over to his mother. (Because sure, that won’t look suspicious at trial.)

Both Don and Toni were charged. Toni flipped. And that’s where our story shifts from financial fraud to judicial farce.

To secure her cooperation, the State sent Toni’s attorney a letter outlining the terms of a plea deal. That letter included the State’s now-infamous caveat: “The State reserves the right to withdraw this proffer…until your client has testified truthfully and honestly at trial . It is within the State’s sole discretion to determine whether she is providing truthful and honest testimony.”

In plain English: if Toni didn’t tell the story the State wanted, the deal was off. But if the State liked what she had to say—and believed her—then she’d get the benefit of a capped sentence and charge reductions. It was a classic cooperation deal…with one twist: the State decided to introduce the letter itself at trial.

And when the defense objected—arguing, correctly, that the letter was a thinly-veiled endorsement of Toni’s credibility—the trial court shrugged and let it in. The prosecutor, apparently, could now tell the jury, “We’re only calling her because we think she’s truthful,” and call it “transparency.”

The jury convicted Don on multiple counts. But don’t worry: in its published-by-default memorandum opinion, the Court of Appeals gave its full blessing to the State’s use of this backdoor vouching technique, finding it totally permissible and even helpful to the defense.

Helpful?

That’s right. According to the Court, the State introduced the letter not to bolster their witness’s credibility—but to undermine it. To highlight her bias. To hand the defense a tool for impeachment. As if the prosecutor walked into trial thinking, “You know what? Let’s make sure we help the defendant score some points here.”

Because that’s totally how trials work.

Sidebar: What Is Rule 704(b), and Why Does It Matter?

Before we go any further, let’s break down exactly what Indiana Rule of Evidence 704(b) says—because the entire issue in Walter v. State turns on it.

Here’s the rule:

Indiana Evidence Rule 704(b):

“Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.”

Translation: No witness—including a prosecutor, law enforcement officer, expert, or your next-door neighbor—can tell the jury whether someone is lying or telling the truth. That’s the jury’s job. Period.

Why Does This Rule Exist?

Because we have this thing in our system called a “fair trial.” And central to that concept is the idea that jurors—not lawyers, not judges, not cops, not witnesses—decide who is credible and who isn’t.

If the government were allowed to put its thumb on the scale by telling the jury, “Hey, just so you know, we’ve vetted this witness and we think she’s being honest,” then the entire adversarial process falls apart. It becomes theater. The jury stops thinking critically and starts rubber-stamping whatever the State says.

Rule 704(b) was designed to prevent exactly that. It’s one of the only lines in evidence law that directly protects the jury’s exclusive domain—the determination of credibility.

But It’s More Than Just a Rule—It’s a Structural Safeguard

Think about it: if the State were allowed to openly say “we only make deals with truthful people” and then parade that person in front of the jury, what’s left of the defense’s ability to challenge credibility?

Cross-examination? Undermined. The jury’s already been told the State trusts her.
Motive to lie? Whitewashed. The jury hears that her honesty is why she’s on the stand in the first place.
Bias? Defused. The State got out ahead of it and framed the bias as evidence of truthfulness.

This is exactly why courts—until now—have strictly policed efforts to bolster a witness’s credibility, especially by the prosecution. Courts routinely reverse convictions where a prosecutor crosses the line into direct or implied vouching. And for good reason. The prosecutor is the most powerful and authoritative voice in the courtroom. When they vouch, jurors listen.

But Walter v. State walks that line right off a cliff.

The Court’s “Helpful to the Defense” Theory: A Masterclass in Judicial Delusion

So, now that we’ve slogged through the saga of Don and Toni—the embezzling lovebirds turned courtroom adversaries—let’s get to the real head-scratcher: how the Indiana Court of Appeals managed to look at that prosecutorial cooperation letter and not see it as an endorsement of the witness’s credibility.

According to the Court, this letter—which explicitly says that Toni only gets her deal if the State decides she has testified “truthfully and honestly”—wasn’t improper vouching. Oh no. Instead, it was helpful to the defense. Their words, not ours:

“A reasonable juror could have interpreted the letter as a reason to treat Toni’s testimony with skepticism because she had a reason to minimize her own culpability and shift blame toward Walter.” ( Walter v. State, slip op. at 9-10)

Stop and let that soak in.

The Court’s theory is that the prosecutor entered this letter not to convince the jury that Toni was trustworthy, but to alert the jury that she was potentially lying. That’s right—apparently the State was just doing the defense attorney’s job for them. Out of the goodness of their heart. Like some kind of bizarre reverse impeachment charity. We’re supposed to believe the State introduced this letter to undercut its own witness? That it essentially walked into court and said, “Here’s a letter that shows she has every incentive to lie—don’t believe her”? That’s like saying a magician reveals how the trick works halfway through the show just to keep things honest.

No one’s buying it.

It’s legal gaslighting in its purest form.

Let’s break down why this reasoning is so staggeringly absurd:

1. Prosecutors Do Not Undermine Their Own Witnesses. Period.

This shouldn’t have to be said, but here we are. The entire premise of a trial is adversarial. The prosecutor’s job is to win. That means building up their own witnesses, not sabotaging them. When the State introduces a document at trial, it’s because they believe it helps their case. They are not setting up a booby trap for themselves and hoping the jury steps on it.

The idea that the State entered this letter into evidence to make the jury question Toni’s credibility is so out of touch with courtroom reality it borders on parody.

Imagine a defense attorney walking into court and saying, “Here’s my client’s confession, your honor—I’d like to introduce it so the jury knows he might be guilty.”

You’d be laughed out of the courtroom—and rightly so. But the Court of Appeals would apparently call it “strategic transparency.”

2. This Letter Was a Classic Preemptive Strike

Prosecutors routinely try to defuse damaging impeachment by “getting out ahead of it.” It’s Trial Tactics 101. You introduce the cooperation agreement before the defense can, frame it on your terms, and signal to the jury: “Yes, she got a deal—but only because she’s cooperating truthfully. And you can trust her because we trust her.”

This wasn’t a confession of bias. It was a credibility cleanse. The letter practically screams, “We’ve already judged this witness to be truthful—and that’s why she’s here.”

The Court’s failure to see that for what it is—a thinly veiled endorsement—is either willful blindness or judicial complicity. Take your pick.

3. If This Isn’t Vouching, Then the Rule Is Meaningless

Let’s revisit Indiana Evidence Rule 704(b), which prohibits:

“Opinions concerning…whether a witness has testified truthfully.”

That includes indirect endorsements. That includes subtle nudges. That includes, and this is important, “We’re only offering her a deal if she testifies truthfully, and by the way, she’s testifying today.” That is the prosecutor walking into the jury box with a megaphone saying, “We believe her. You should too.”

The whole point of Rule 704(b) is to prevent the jury from outsourcing credibility determinations to the government. If you can now smuggle those determinations into evidence through cooperation letters written before trial, then the rule is dead. It’s just ceremonial language—like those “Speed Limit Strictly Enforced” signs that everyone ignores on I-70.

4. The Court’s Reasoning - Turning the Rule on Its Head

The Court’s rationale effectively eats itself.

The letter says the State only wants “truthful” testimony.
The witness testifies.
The State introduces the letter.
The jury hears, loud and clear, that this witness must have passed the “truthfulness test.”
But according to the Court, the jury is supposed to read this as doubtful, not validating.

This is judicial logic by Schrödinger: the letter both proves and disproves the witness’s truthfulness, depending entirely on who’s asking.

This isn’t a legal analysis. It’s interpretive dance.

The Court’s Reliance on Brown v. State : A Case Misquoted, Misused, and Misunderstood

In attempting to justify its decision to allow the prosecutor’s cooperation letter into evidence in Walter v. State , the Court of Appeals cited Brown v. State , 587 N.E.2d 111 (Ind. 1992), for the proposition that “when the State has entered into a plea agreement with a witness it is necessary for the State to disclose such agreement.” That much is true—as far as it goes. But as with most things in law, the devil is in the omitted footnote.

To understand why the Court’s reliance on Brown is so deeply flawed, you have to trace the line of precedent the Court of Appeals blithely invoked. Because when you do, one thing becomes crystal clear: the original reason for requiring disclosure of plea agreements had nothing to do with helping the prosecution get ahead of impeachment and everything to do with protecting the rights of the accused.

Point One: The Lineage of Brown Begins with a Reversal for the Defendant

The Court in Brown cited Garland v. State , 444 N.E.2d 1180 (Ind. 1983), which in turn cited Newman v. State , 263 Ind. 569, 334 N.E.2d 684 (1975). And here’s the punchline: Newman reversed the conviction. Why? Because the State failed to disclose the existence of a leniency agreement with a cooperating witness. That omission deprived the defendant of the ability to effectively impeach the witness’s credibility—an error the Indiana Supreme Court found so significant that it warranted a new trial.

In Newman , the Court emphasized that “an accomplice who turns state's evidence…is being bribed,” and that the jury must be told about any such inducement because it “naturally impairs the credibility of such a witness.” The entire point was to protect the defendant by ensuring the jury knew when a witness had something to gain by testifying.

So yes, disclosure is required—but it’s required so the defense can use it to cross-examine, not so the State can launder credibility through the back door and then act surprised when the jury finds the witness believable.

P oint Two: Brown Reversed the Conviction—Because of Improperly Admitted Content in a Plea Agreement

Even setting aside Newman, the reliance on Brown as supportive of the Court’s logic in Walter is a bit like citing a fire marshal's report as a defense for arson.

In Brown , the conviction was reversed because the State introduced a plea agreement that included a reference to the cooperating witness having taken a polygraph. The Court found that even referencing the fact that the test occurred (not the result—just the existence) created an inference that the witness had passed, and thus improperly bolstered his credibility.

The Court in Brown said it plainly:

“There can be no doubt that when submitted to the jury under the circumstances the only logical conclusion they could deduce would be that Ohm passed the polygraph test thus enabling him to complete his plea bargain with the State.”

The conclusion? Even if a plea agreement is otherwise admissible, that doesn’t give the State carte blanche to admit everything attached to it—especially if that material indirectly signals to the jury that the State has vetted the witness for truthfulness. In fact, the Court in Brown held that such statements must be redacted, and failing to do so was reversible error.

Now take a look at what happened in Walter :

The letter said the State reserved the right to call the witness only if it determined her testimony to be “truthful and honest.”
The State called the witness.
The letter was introduced to the jury.
The implication? The witness passed the State’s credibility screening.

How is that any different from implying a witness passed a polygraph? It isn’t. In fact, it may be worse—because it turns the prosecutor into both test administrator and credibility judge, all under the guise of a plea letter. If anything, Brown is a case for excluding the letter in Walter , not admitting it.

Point Three: “Disclosure” Is Not a License to Bolster

Yes, Brown and its predecessors say the State must disclose plea agreements. But “disclose” does not mean “bolster.” The purpose of disclosure is to allow the defense to explore motive and bias, not to give the State a pretext to introduce material that implicitly says, “We believe her.”

And even where a plea agreement is admissible, the form and content of that admission matter. In Brown , the problem wasn’t that the State disclosed the agreement—it was that the State included inadmissible content within the disclosure. The Court expressly held that where otherwise admissible evidence contains improper inferences, those portions “should be redacted.”

That same reasoning applies to Walter . Even if the plea agreement or letter was admissible for the limited purpose of showing motive or bias, the portion stating that the State would only call Toni if it believed her testimony was truthful should have been excised. Leaving it in was an implicit stamp of approval from the State on her credibility—and that’s the very definition of improper vouching .

The entire logic behind letting defendants introduce plea deals is that they’re evidence of bias. It gives the defense a tool to show motive to lie, cut a deal, and curry favor with the State. That makes sense. What doesn’t make sense is letting the State preemptively sanitize their own witnesses with documents that say, “Don’t worry, we’ve already decided this person is honest.”

What we’re left with is a new procedural monster: The State can now launder its witnesses’ credibility through conditional language in plea offers. Say it’s not explicit vouching and boom—admissible.

Apparently, all you have to do is slap “at the discretion of the State” on the end of a sentence, and suddenly you’re not putting your thumb on the scale. You’re just giving the jury “full context.”

The Court conveniently ignores the very premise behind admitting a cooperating witness’s plea: to impeach, not to sanitize. Letting the State introduce it to bolster their own witness’s believability is like letting the wolf wear a name tag that says. “Certified Sheep Inspector.”

The Policy Fallout: Congratulations, Prosecutors—You Can Now Vouch by Proxy

Here’s what Walter v. State really does, stripped of judicial lipstick: it creates a playbook for prosecutors to do precisely what Rule 704(b) forbids. It arms them with a fully court-approved strategy to vouch for their own witnesses, as long as they phrase the vouching as a “conditional” plea offer and date the letter before trial.

Don’t take our word for it—just follow the bouncing logic ball:

The State crafts a plea offer that hinges on the witness testifying “truthfully and honestly,” as judged solely by the State.
The State chooses to call the witness at trial.
The implication becomes obvious: “We’ve determined she passed our truthfulness test.”
The letter is admitted into evidence under the pretext of “transparency” and “bias disclosure.”
The jury, being made of human beings with functioning brains, connects the dots.

What used to be improper vouching is now just “helpful context.”

The irony? The very logic that supports a defendant introducing a plea deal—because it reveals potential bias and self-interest—has now been weaponized by the State to preemptively sanctify its own witnesses. The rule has been flipped on its head. What was once a sword in the defense’s hand is now a shield in the State’s.

That’s not evolution. That’s regression.

Defense Attorneys, Take Note: This Will Be the New Norm

If you’re a criminal defense attorney in Indiana, go ahead and add this to your list of things to watch out for in trial:

When you see that “cooperation letter” on the exhibit list, don’t assume it’s a harmless document. Assume it’s a trojan horse filled with vouching.
Object under Rule 704(b)—and make your record loud and clear that admitting the letter implies prosecutorial endorsement of the witness’s credibility.
Better yet, file a motion in limine ahead of trial to exclude any plea or proffer language that conditions the deal on a “truthfulness” determination by the State. Argue that such language, when introduced by the State itself, amounts to improper bolstering.
And if the judge rolls over and admits it anyway, be prepared to write your own blog post—because this is the new frontier in appellate gaslighting.

Prosecutors Are Not Entitled to a Good Faith Presumption of Objectivity

The Court of Appeals in Walter seems to have forgotten a simple truth: prosecutors are not neutral actors. They are not there to do the defense’s job. They are not there to undermine their own case. And when they introduce a document at trial, it’s not to “give the jury tools to question the State’s case.” It’s to win. Full stop.

So when a prosecutor introduces a letter that says, “we only give deals to people we believe,” and then puts that person on the stand, that’s not self-immolation. That’s calculated bolstering.

And it’s now Court-approved.

What This Means for the Rule of Law (Spoiler: Nothing Good)

The whole point of rules like 704(b) is to prevent credibility determinations from being outsourced to power—especially to the State. When the Court pretends that jurors will infer bias from a letter that screams State endorsement, they’re not protecting the adversarial system—they’re neutering it.

This isn’t just a bad ruling. It’s an institutional wink. A quiet invitation to prosecutors everywhere: go ahead and vouch, just don’t be too obvious about it. And when the defense calls you on it, we’ll just pretend you were being generous.

Final Thought: The Law Says One Thing. Sometimes the Rulings Say Another.

If there’s a lesson in Walter v. State , it’s this: even the clearest of evidentiary rules can be contorted into something unrecognizable when the outcome demands it. Rule 704(b) wasn’t vague. It wasn’t ambiguous. It flatly prohibits opinion testimony about a witness’s truthfulness. Yet somehow, the Court found a way to carve an exception big enough to drive a fully-vouched witness through.

This isn’t just a quirky bit of legal gymnastics. It’s a warning shot to defense lawyers. If you’re expecting strict adherence to evidentiary rules that constrain the State, you may find that flexibility flows more freely in one direction than the other.

That doesn’t mean the system is corrupt. It means the system is full of people—and people come with instincts, biases, and yes, a certain gravitational pull toward the familiar and the comfortable. Prosecutors benefit from that inertia. Defense attorneys have to work twice as hard to overcome it.

“Furtive Movements” and “Training and Experience” – The Vague, Magical Phrases Cops Use to Turn Nothing into Probable Cause

Tue, 24 Jun 2025 19:10:50 GMT

How Courts Let Cops Invent Criminality—and the Constitution Just Nods Along

At police training classes and seminars, particularly training related to traffic stops and narcotics interdictions, they learn about and are taught legal terminology that they incorporate into their probable cause affidavits and testimony to get around the Fourth Amendments protections against unreasonable searches and seizures. Especially when it comes to traffic stops, the two most commonly used phrases are “furtive movements” and “training and experience.”

Part 1-What Is a “Furtive Movement, ”Anyway?

Let’s begin with the basics. "Furtive movement" is a term you'll often hear in courtrooms when officers are asked why they decided to search someone’s car, person, or soul. It’s supposed to describe a movement that connotes concealment or evasion—a suspect hiding something, reaching for something, or behaving in a way that signals intentional secrecy. As the Indiana Court of Appeals described it in B.R. v. State, 162 N.E.3d 1173 (Ind. Ct. App. 2021):

"Neither shaking nor being visibly nervous is 'furtive.' To establish that a suspect has engaged in furtive movements, the act must connote evasion or concealment."

That’s the legal standard. It sounds clear. Objective, even. Like something you could build actual case law on. In theory, it refers to to suspicious, sudden, or concealed actions by a driver or passenger, such as reaching under the seat, leaning toward the center console, or hunching over while during the course of the traffic stop.

In practice, it often means: “The driver looked like he might be hiding something, maybe, and I needed an excuse to search,” and actions such as getting into your glovebox to get your registration before the officer gets to your window, or passengers moving around and looking back towards the cop car that’s pulling them over can be described as “furtive.”

If you’re pulled over in Indiana, here’s the golden rule: don’t move around. Don’t reach. Don’t rummage. Don’t even think about opening the glovebox until the officer asks for your documents. And whatever you do, don’t try to be helpful and have your license and registration ready ahead of time.

Why? Because Indiana courts have all but declared that looking organized is now suspicious.

“Furtive Movements”: The All-Purpose Excuse

Police love to use the phrase “furtive movements” to justify a search. It’s vague, subjective, and conveniently covers just about anything you do with your hands. Reach under your seat? Suspicious. Lean toward the center console? Suspicious. Stretch your arm out with your license before the cop even says hello? Also suspicious—at least according to the Indiana Court of Appeals in Canonge v. State, 218 N.E.3d 620 (Ind. Ct. App. 2023).

Part II: Why It Matters – Furtive Movements as the Gateway Drug to Dog Sniffs and Delays

The magic of the "furtive movement" label is that it doesn’t need to prove guilt. It just needs to create “reasonable suspicion” —the low bar that allows officers to:

Prolong a traffic stop,
Call in a canine unit,
Pull passengers out of the vehicle,
And in some cases, initiate a full-blown search.

Here’s the rub: The moment “reasonable suspicion” enters the equation, your Fourth Amendment protections begin to fade like an old police report in the sun. A routine traffic stop morphs into an extended roadside investigation based on an officer’s perception of your nervous hands, sideways glance, or—for the love of God—your early attempt to hand over your license.

This is where things turn mystical.

Because courts don't really ask whether you made a furtive movement. They ask whether the officer felt like you did. Enter the judicially adored, rarely scrutinized talisman of:

Part III - Training and Experience”: The Cop’s Magic Wand

Say the words out loud in a suppression hearing—preferably with a solemn tone and a furrowed brow—and suddenly the Fourth Amendment packs up and leaves the courtroom.

Here’s how it works:

No clear view of contraband?
→ “Based on my training and experience, I believed the subject was hiding drugs.”
No weapon, no threat, no reason?
→ “My training and experience told me the passenger’s body language was evasive.”
No probable cause whatsoever?
→ “In my training and experience, the suspect’s silence confirmed my suspicions.”

That’s right. Silence. Nervousness. Reaching for your wallet. Smoking a cigarette too fast. All of it becomes grounds for search and seizure if an officer invokes the sacred phrase: “based on my training and experience.”

It doesn’t need to be quantified.
It doesn’t need to be explained.
It certainly doesn’t need to be linked to any actual data or reliable methodology.
It just needs to be said—preferably on the record—and voilà:

Your Honor, I waved my wand of vaguely defined professional intuition, and the Constitution melted like a popsicle in July.”

But What Is This “Training,” Anyway?

Great question. You’d think something so legally powerful would have specific contours. Spoiler: it doesn’t.

It could mean:

A two-day roadside interdiction seminar hosted by a retired state trooper from Alabama.
Watching enough YouTube videos of cartel busts.
Sitting through a PowerPoint at roll call that says “backpacks = drugs.”

The courts don’t ask what the training consisted of. They don’t ask who delivered it. They don’t ask whether the officer passed or failed.

They just nod respectfully and say, “Thank you for your service—now go ahead and rummage through that guy’s car.”

Which brings us to:

Part IV - Canonge v. State : When Handing Over Your License Is Probable Cause

Or, How the Indiana Court of Appeals Turned Courtesy Into Criminality

Let’s set the scene: You're driving through Avon, Indiana—land of roundabouts and overzealous policing—when you're pulled over. Like a good little citizen, you reach into your glove box, grab your license and registration, and have it ready for the officer before he waddles up to your window.

Congratulations.

You just triggered reasonable suspicion.

No, seriously. That’s what happened in Canonge v. State , 218 N.E.3d 620 (Ind. Ct. App. 2023), where the Indiana Court of Appeals decided that being prepared during a traffic stop is now “unusual behavior” justifying a prolonged detention and K-9 search.

The “Suspicious” Behavior

Let’s take a quick roll call of what sealed Mr. Canonge’s fate:

He handed over his license before being asked.
His passengers looked nervous (you know, like everyone does during a stop).
One guy didn’t make eye contact.
Someone smoked a cigarette too quickly.
There were backpacks on the floorboard (probably where people put backpacks).
People moved inside the vehicle after police lights came on.

Throw in some vague “furtive movements” and voila!—you’ve got the makings of a full-blown drug operation, or at least enough for the court of appeals nod along like it all makes sense. And what were those furtive movements? As the dissent noted:

“Even though Officer Roach answered affirmatively when asked if he saw "furtive movements," Officer Roach clarified that what he saw was the occupants' "bodies were moving" and he assumed they were reaching for something. He could not see the occupants' hands, and thus, he did not actually observe them concealing anything.”

Enter the Dog

Naturally, instead of issuing a traffic warning and sending Mr. Canonge on his way, Officer Roach decided it was time to phone a friend—with four legs.

While waiting 20+ minutes for the K-9 unit to arrive, Officer Roach passed the time pretending to write a warning ticket. Not because he intended to issue one. No, no. He said—under oath, mind you—that he was just “occupying time” until the dog got there.

You read that right. Writing the ticket wasn’t part of the stop’s purpose—it was part of the cover story.

And the Court? Totally fine with it. Nothing to see here, folks.

But Wait—Isn’t This All Just a “Hunch”?

You’d think so. In fact, the officer in Canonge admitted he didn’t actually see what the occupants were reaching for. Just that they were “moving.”

In legalese, that’s called speculation .

The majority embraced this with open arms, citing the officer’s "500 prior stops" as if Fourth Amendment analysis is just a numbers game: “He’s done this a lot, therefore he must be right.”

Meanwhile, Judge May’s dissent cut through the nonsense with surgical precision:

A Ray of Sanity: The Dissent

Thankfully, Judge May brought a fire extinguisher to this dumpster fire of an opinion. In dissent, she wrote:

“I see absolutely nothing suspicious in a motorist having ready the documents the motorist knows the officer is going to request for inspection.”

This, folks, is called common sense —a term that’s been placed on the endangered species list in appellate courts across America.

Judge May also noted (correctly) that reaching around in your own car isn’t illegal, and that the officer didn’t actually see anyone hiding drugs—he just assumed they were. Because assumptions are all you need when the majority’s standard for reasonable suspicion is now somewhere between “pre-crime” and “bad vibes.”

The Real Lesson

The moral of Canonge isn’t legal—it’s psychological:

Don’t be too calm.
Don’t be too nervous.
Don’t move.
Don’t sit still.
Don’t hand over your license early.
But also don’t fumble for it.
And whatever you do, don’t have a backpack, a cigarette, or a minor in your backseat.

Otherwise, congratulations: you are now a threat to public safety .

Why This Case Matters

Because Canonge isn't just absurd—it's dangerous.

It signals to law enforcement that literally any behavior, even compliance, can be spun into suspicion. And once you cross that threshold, your constitutional rights evaporate faster than a police dog’s certification paperwork.

The Fourth Amendment is supposed to protect you from this kind of arbitrary intrusion. But decisions like Canonge twist that protection into a Rorschach test—what matters isn’t what you did, but how the officer felt about it afterward.

And what did the Indiana Supreme Court do when asked to review this farce?

Denied transfer.

Because apparently, it's not absurd enough.

No need to weigh in when the lower courts are already doing such a bang-up job defining “suspicion” as any combination of:

Document readiness,
Inward breathing,
And not spontaneously combusting on the roadside.

Final Thought

If you still believe the Constitution protects you during a traffic stop, Canonge should disabuse you of that quaint notion. We’ve officially reached the point where being polite to police is de facto criminal behavior .

So next time you’re pulled over? Don’t move. Don’t speak. Don’t blink. Just wait silently for your turn to be sniffed.

Welcome to Indiana.

This blog post is for informational and educational purposes only. It does not constitute legal advice, nor does it create an attorney-client relationship. The views and opinions expressed herein are those of the author and do not necessarily reflect the views of B jjohnsonlaw.com r or any affiliated individuals. If you are facing legal charges or have specific questions about your rights, you should consult with a licensed attorney familiar with the laws of your jurisdiction.

The Illusion of Fairness: When Justice Depends on the Draw

Mon, 02 Jun 2025 20:00:52 GMT

Why Winning in Court Isn't Just About the Law - It's About Who's Holding the Gavel

You’ve seen it on TV. The righteous defense lawyer stands, makes a killer argument, the judge bangs the gavel, and justice is served.

Now here’s how it really works:

You walk into court, and within five minutes, you already know how it’s going to go.

Why? Because the judge has a reputation. A pattern. A predictable reflex based upon their own personality, experiences, and opinions. And your client’s fate may have less to do with the law—and more to do with the fact that you drew the short straw on the bench.

Welcome to the real criminal justice system - where idealism dies somewhere between discretion and deference.

Judges Don’t Just “Call Balls and Strikes”

Let’s put this myth to rest: judges are not neutral umpires. They’re players in the game—with tremendous influence over how it’s played.

They decide:

• What evidence the jury hears.

• Whether an expert is qualified.

• Whether the officer “technically” violated rights, but not enough to matter.

• And most critically: what happens if your client loses.

And here’s the kicker:

Even if they get it wrong—provably, undeniably wrong—there’s a decent chance it won’t matter. Because in the eyes of appellate courts, a lot of judicial error is just… “harmless.”

“Harmless Error” – The Court’s Favorite Shrug

Let’s say a judge improperly excludes key evidence. Or overrules your motion to suppress even though the officer clearly violated the Fourth Amendment. You think: Fine, we’ll appeal. Surely someone will fix this. But appellate courts have a built-in escape hatch called harmless error.

Translation: Yes, the trial court screwed up. But we don’t think it changed the outcome. It turns constitutional violations into footnotes. It tells clients: “You were right—but not right enough.” And it tells defense lawyers: “You better win now, because good luck fixing it later.”

Sentencing: Where Discretion Becomes Power

If judicial error at trial feels frustrating, wait until you get to sentencing.

In Indiana, judges have broad discretion in sentencing. And by “broad,” I mean almost unreviewable. A judge can give your client the maximum sentence within the statutory range—no parole, no probation—without explanation, and it will almost always stand on appeal. The appellate standard is “abuse of discretion.” But unless the judge goes completely rogue, that bar is practically unreachable.

Here’s what that means in real life:

Two clients with identical records and charges can walk into two different courtrooms and come out with radically different sentences—simply because one judge “believes in rehabilitation,” and the other “believes in accountability.”

There’s no panel of fairness referees.

There’s no system to reassign judges because they’re too harsh.

You get what you get—and your only real job as a defense attorney is to try to navigate the storm.

“You Can’t Pick Your Judge”—But You’re Stuck With Them

If a judge is known for ruling with the State on 90% of evidentiary issues… you don’t get to opt out. If a judge refuses to believe a word a defense expert says… you don’t get a mulligan.

In Indiana, once you’re assigned a judge, that’s it. Unless there’s a legal reason—like a conflict of interest—you’re stuck. The fact that your judge has a track record of favoring prosecutors doesn’t count. There’s no “bias challenge” just because your judge’s sentencing philosophy is a death sentence for first-time offenders. No red button to eject when your pretrial motions get rubber-stamped with denials. And that reality shapes everything—from how a case is negotiated, to whether you ask for a bench trial or jury, to how you prep your client emotionally. It’s not about “justice.” It’s about predicting how the system will behave and adapting fast enough to protect your client from it.

The Grim Odds of Appeal

Let’s say you decide to appeal anyway. Buckle up.

Appeals in criminal cases are a grind:

• Months—sometimes years—of briefing and waiting.

• Strict deadlines and technical requirements.

• A reviewing court that won’t give your client a new trial just because the judge got creative with the rules.

And the odds?

Over 90% of criminal appeals in Indiana end with the same result: conviction and sentence affirmed.

That’s not a typo. That’s your reality.

Because appellate courts defer to trial courts. They assume judges made reasonable calls. They bend over backward to uphold verdicts in the name of “finality.”

So when clients ask, “Can we appeal this?” the honest answer is:

“Yes, but don’t get your hopes up. The same system that let this happen isn’t going to be eager to undo it.”

What This Means for Real-World Defense Strategy

This isn’t meant to be discouraging. It’s meant to be honest.

If you’re facing charges—or if you’re a defense attorney guiding someone who is—you have to understand the battlefield.

You don’t get to choose your referee.

You don’t get replays.

And if the deck is stacked against you, the only thing you can do is change the strategy.

That means:

• Fight pretrial battles like they’re your last chance.

• Prepare for sentencing like it’s the main event—not the epilogue.

• Vet your judge’s tendencies. Talk to other attorneys. Know who you’re dealing with.

• And yes—manage your client’s expectations. The courtroom is not the clean, deliberative arena they see on TV. It’s messy, political, and often cruel.

The Bottom Line: Fairness Is a Myth. Strategy Is Survival.

The justice system sells a vision of fairness—blindfolded Lady Justice, equal scales, neutral judges.

But here’s the truth we live every day in court:

Fairness is aspirational. Discretion is real. And the law is often what the judge says it is—until someone with the power to disagree says otherwise.

If you’re looking for a legal team that knows how to navigate that reality—and win in spite of it—call us.

We don’t sell fairy tales. We build strategies that work in the real world.

Your defense starts the minute they charge you—and sometimes, the only justice is what we fight for ourselves.

“We Just Want to Talk” – Why You Should Never Talk to Police Without a Lawyer

Tue, 20 May 2025 21:37:54 GMT

Cops don’t “just want to talk.” They want to build a case.

Let’s start with a basic truth:
Cops don’t “just want to talk.”
They want to build a case .

So when an officer calls you up and says, “Hey, can you come down to the station for a quick chat?”—that is not a friendly invitation. It is a tactical maneuver. And if you walk in there thinking you’re just going to “clear things up,” you’re walking into a trap with a blindfold and a smile.

This isn’t paranoia. It’s how the system works.

The “Voluntary Encounter” Illusion

When police say the conversation is “voluntary,” what they really mean is:
It’s not voluntary for them, it’s optional for you—and you just waived every protection you had.

Legally speaking, a voluntary encounter is any interaction where you’re free to leave, not under arrest, and not in custody. Sounds safe, right?

Wrong.

Because once you're in that little room with no windows, sitting in a plastic chair facing two detectives who “just want to ask a few questions,” the conversation doesn’t feel voluntary anymore. And more importantly, nothing about it protects you.

They’re not required to read you your Miranda rights.
They’re not required to tell you you’re a suspect.
They’re not required to let you leave when it gets uncomfortable.

And guess what?
They’re recording you.
Every twitch. Every “I think so.” Every nervous pause. All of it gets added to your future trial exhibit list.

When a “Chat” Becomes an Interrogation

Here’s the playbook:

You get a call or knock on the door.
“You’re not in trouble, we just need your side of the story.”
They act friendly, casual, relaxed.
“We want to help you out. You don’t seem like a bad guy.”
Then the mood shifts.
“Help us understand why she said what she said.”
Then come the “gotchas.”
“Because here’s the thing—we’ve already talked to everyone else.”

This is not a conversation.
It’s a scripted psychological extraction .

And the moment you say something that can be twisted into guilt—or worse, a contradiction—they’ve got you.

Doesn’t matter if you’re innocent. Doesn’t matter if you misremembered. Doesn’t matter if you were nervous and said something dumb.

If it sounds bad, they’ll use it.

And that casual chat you thought would clear your name?
Congratulations. You just built their case for them.

Miranda Rights: Only When It’s Too Late

“But they never read me my rights!”

I hear this every week. And here’s the part they don’t teach you on Law & Order:

Miranda warnings are only required when two things are true:

You’re in custody , and
You’re being interrogated .

If you walked into the station voluntarily—or hell, even if they came to your house and you talked on the porch—you’re not “in custody.” Which means they don’t have to Mirandize you. Which means everything you say is fair game .

Police are trained to avoid triggering Miranda so they can squeeze information out of you without having to deal with all that pesky constitutional stuff.

And they’re good at it.

So no, they didn’t “violate your rights.”
You gave them up. Willingly.

Why Silence Isn’t Suspicious—It’s Smart

There’s this myth that “if you don’t talk, you must have something to hide.”

Let me correct that for you:
If you don’t talk, you must have something to protect.

Your freedom. Your future. Your case.

The Fifth Amendment exists for a reason. And it’s not for guilty people—it’s for smart people.

Let me put it another way:

If the police were investigating you for a serious crime, and they brought you into a room with your lawyer, and your lawyer said, “Don’t answer that”—would that make you guilty?

Of course not. It makes you someone with enough sense to take legal advice.

So why is it any different if you shut your mouth before they charge you?

It’s not.

The only people who think silence is suspicious are the ones hoping you’ll talk yourself into a conviction.

Innocent People Talk. That’s the Problem.

Here’s the part that stings:
Most of the people who sit in front of me trying to explain why they talked to police... are innocent.

They thought it would help. They believed if they were cooperative, the police would see the truth. They thought saying, “I didn’t do anything” was enough.

It never is.

Police don’t need your confession. They need your contradictions.
They need your timeline slip-ups.
They need the way your voice cracked when they asked about “that night.”

They’ll tell the jury you “changed your story.”
They’ll say your phrasing was “evasive.”
They’ll say you “admitted” something, even if you didn’t mean it that way.

Meanwhile, the detective gets on the stand and shrugs:
“He came in voluntarily. He waived his rights. We just had a conversation.”

Sound familiar?

So What Should You Do Instead?

Let me make this painfully simple.

If the police ever say:

“We just have a few questions.”
“You’re not under arrest.”
“Come down to the station so we can clear this up.”
“You’re not a suspect… yet.”

Your next move is:

“I’d be happy to talk—with my attorney present.”

Then you call a lawyer.
Then you stop talking.
Then you let someone who knows the rules play the game for you.

Because make no mistake:
They know the rules.
And they are betting on the fact that you don’t.

Final Thought: If You’re So Innocent, Why Lawyer Up?

Because I’ve seen too many innocent people get destroyed by their own good intentions.

Because “talking to clear your name” often becomes the reason you need a defense attorney in the first place.

And because cops aren’t interested in the truth.
They’re interested in what they can prove —even if they have to twist your own words to do it.

So when the police say, “We just want to talk,” what they really mean is:
“We’re hoping you’ll hand us everything we need—no warrant, no rights, no problem.”

Don’t give them what they want.

When the system gears up against you, don’t go in alone. We’ll be your wall. We’ll be your weapon.

Probable Cause or Probable Fiction? The Legal Myth of the Drug Sniffing Dog

Tue, 13 May 2025 15:41:24 GMT

False Alerts, Real Consequences: The Flawed Logic Behind Drug Dog Searches

The Myth of Canine Infallibility

For decades, drug detection dogs have been afforded an aura of near infallibility in courts. Law enforcement and courts often treat a canine “alert” as virtually synonymous with contraband being present. The U.S. Supreme Court has reinforced this perception: In Florida v. Harris , 568 U.S. 237 (2013), the Court ruled that a dog's certification and training were sufficient to establish probable cause for a search, without requiring field performance data. Justice Elena Kagan, writing for the unanimous Court, stated that "if a bona fide organization has certified a dog after testing his reliability in a controlled setting," then the dog's alert can be presumed reliable. Earlier, in Illinois v. Caballes , 543 U.S. 405 (2005), the Court even ruled that a well-trained drug dog’s sniff during a lawful traffic stop is not a “search” under the Fourth Amendment at all (since it supposedly only detects illegal contraband). This deference rests on the assumption that detection dogs are extraordinarily accurate.

However, this presumption has been challenged by subsequent studies revealing significant discrepancies between controlled training environments and real-world performance. Even in Caballes , Justice Souter pointedly observed in his dissent that “the infallible dog…is a creature of legal fiction” He noted that in real cases, dogs had documented error rates as high as 38%, and controlled testing showed false positives anywhere from 12.5% to 60% of the time.

Empirical Evidence of High False Alert Rates

United States

A 2011 analysis by the Chicago Tribune examined three years of data on police dog alerts during traffic stops in suburban Chicago. The study found that drugs or paraphernalia were discovered in only 44% of cases where dogs alerted. Notably, the accuracy dropped to 27% when the driver was Latino, suggesting potential bias in the deployment or interpretation of canine alerts. [1]

A 2011 study of an Illinois State Police drug dog program found similar results. During one operation analyzed by the Eleventh Circuit, state police stopped 1,230 cars and used two different dogs to sniff each vehicle; the dogs alerted on 28 cars, yet only 1 of those searches found drugs – meaning 96% of those alerts were false. Such examples underscore that even trained and certified dogs frequently make mistakes in real-world conditionsnacdl.orgnacdl.org. In fact, an amicus brief in Harris collected studies showing individual certified dogs’ accuracy rates ranging anywhere from 7% up to 56%, with average real-world accuracy around 26%. Any given alert was “almost three times more likely to be a false alert than an accurate one” in one large study. [2]

Australia

In New South Wales (NSW), Australia, the use of drug detection dogs has been scrutinized extensively. A review by the NSW Ombudsman covering the period from February 2002 to February 2004 found that in 74% of cases where a dog indicated the presence of drugs, no drugs were subsequently found. This high false alert rate has persisted over time. Despite these findings, NSW Police have continued to defend the program, citing instances where individuals admitted to prior drug contact as evidence of the dogs' accuracy. However, the Ombudsman criticized this rationale, stating that "some admissions may support the accuracy of drug detection dogs in picking up the scent of prohibited drugs, [but] this should not be confused with the accuracy of the dogs detecting persons currently in possession of prohibited drugs."[3]

Data collected over a ten-year period is not any more promising, NSW Police data from 2013 to mid-2023 indicates that drug detection dogs had a success rate of only 25%, with nearly 71,000 out of over 94,000 searches yielding no illicit drugs. [4]

The Role of Handler Influence and Bias

If drug-sniffing dogs have such acute noses, why do they miss so often? A major part of the answer lies not with the dogs, but with their handlers. Research shows that handler expectations, cues (intentional or not), and biases can significantly influence a dog’s alert behavior – a canine version of the famous “Clever Hans” effect. (Clever Hans was a horse that seemed to do arithmetic, but was actually responding to subtle cues from his owner) [5]

Drug dogs are highly attuned to their handlers’ body language, voice, and demeanor. They want to please their handlers and will often pick up on subconscious signals about where to alert. A landmark peer-reviewed study published in Animal Cognition (Lisa Lit et al. 2011) demonstrated this phenomenon under experimental conditions. Eighteen handler–dog teams were led through a set of rooms with no drugs present at all; however, the handlers were misled to believe that certain locations did contain hidden drugs (via the placement of red paper markers). The results were striking: every team produced false alerts, and the dogs alerted most often at the exact locations the handlers expected drugs (the marked spots). In fact, there were significantly more alerts at those handler-suggested locations than at spots containing distracting decoy scents (like sausages or tennis balls). This indicates the dogs were cueing off their handlers’ beliefs rather than smell alone. The researchers explicitly concluded that handler beliefs affected outcomes – a clear demonstration that detection dogs are susceptible to their human partner’s unintentional cues. [6]

Legal and Ethical Implications

The high rate of false alerts and the potential for handler-induced errors have significant legal and ethical implications. Searches based on unreliable dog alerts can lead to violations of individuals' Fourth Amendment rights against unreasonable searches and seizures. Moreover, the deployment of drug detection dogs has been criticized for contributing to racial profiling. As noted in the Chicago Tribune study, the lower accuracy rate of dog alerts involving Latino drivers raises concerns about discriminatory practices.

The Problem of Temporal Ambiguity: Canine Alerts and the “Staleness” Doctrine

A critical but often overlooked issue with drug detection dogs is their inability to determine the temporal proximity of the alleged drug presence. Unlike forensic tools that can date physical evidence or intelligence that ties specific activities to concrete timelines, canine alerts do not distinguish whether the odor detected emanates from recent drug activity or residual scent from past contact. This deficiency introduces a dangerous ambiguity into the legal equation—one that, paradoxically, seems to be treated more leniently in warrantless searches than it would be in traditional warrant applications.

“The Dog Smelled Drugs at Some Point”—A Heads-I-Win, Tails-You-Lose Logic

In practice, handlers and prosecutors frequently rely on circular reasoning when defending false alerts. When a dog alerts and no drugs are found, the justification is often that the dog must have detected residual odor from drugs once present but now removed. This untestable hypothesis transforms every false positive into a retroactive success.

This rationale creates what some defense attorneys have criticized as a "heads I win, tails you lose" proposition. If drugs are found, the dog was right. If no drugs are found, the dog was still right—just not in a way anyone can prove or contest.

The Legal Contradiction: Staleness Doctrine in Search Warrants

Contrast this with how courts treat stale information in the context of search warrants. Under the Fourth Amendment, probable cause must be based on a fair probability that contraband or evidence of a crime will be found in a particular place at the time of the search . This requirement is enforced through the “staleness doctrine,” which dictates that outdated information—no matter how credible—cannot support a valid warrant if it fails to establish present-day likelihood; information a week old may be stale if it concerns a single instance of illegal activity, but information several months old may not be stale if it concerns an ongoing pattern of criminal behavior.

This judicial insistence on temporal relevance is essential to Fourth Amendment protections. Yet the same courts often uphold warrantless searches based on canine sniffs—without requiring any temporal specificity.

An Unjustified Loosening of Standards

The problem is glaring: if stale data from an informant is insufficient for a warranted search, why is an indeterminate, unprovable canine sniff which at best indicates that at some indefinite point in time in the past drugs may have been present sufficient for a warrantless one?

In Florida v. Harris , the Supreme Court held that a certified detection dog's alert alone could constitute probable cause. But it did not require the government to demonstrate when or whether the detected scent related to current criminal conduct. The decision emphasized the dog's reliability in controlled tests but ignored the dog’s complete inability to establish whether drugs are presently in a vehicle or building (let alone the dog's reliability in "real world" application.)

The failure of a detection dog to distinguish between recent and remote presence of drugs makes its alert of minimal probative value—especially where Fourth Amendment interests are at stake.

Warrantless Yet Weaker

This creates a troubling hierarchy of constitutional standards: the weaker the evidence (an unverified canine sniff), the less judicial oversight is applied. Meanwhile, stronger evidence (sworn affidavits supported by corroborating data) is held to a higher standard. This inversion of Fourth Amendment logic undermines the very rationale behind probable cause requirements.

Indeed, as the U.S. Supreme Court recognized in Katz v. United States , 389 U.S. 347 (1967), “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”

Canine sniffs do not merit exemption from this principle, particularly when they are untethered from any capacity to determine the timing of the alleged criminal act. Unlike a confidential informant’s testimony or surveillance footage, a dog’s alert lacks context, corroboration, or accountability.

Unmasking the Fiction of Probable Cause

The inability of detection dogs to pinpoint when drugs were present should weigh heavily against their evidentiary value—especially in the absence of a warrant. Courts’ willingness to treat such alerts as functionally equivalent to reliable, time-bound evidence introduces a systemic double standard. If outdated intelligence fails the “staleness” test for warrants, then unmoored canine alerts—often shielded from scrutiny under the guise of training and certification—must fail a fortiori.

Final Point: The Legal Reality—Why Appellate Courts Are Unlikely to Abandon the Canine Fiction

Despite the compelling scientific, logical, and constitutional arguments against treating a drug detection dog’s alert as sufficient to establish probable cause—particularly in light of the staleness doctrine’s strict application in warrant jurisprudence—appellate courts are unlikely to abandon this deeply entrenched legal fiction. The reason lies not in law, but in the political and institutional realities that shape judicial decision-making at the appellate level.

While trial courts occasionally suppress evidence obtained from unreliable or ambiguous canine alerts, these decisions rarely survive appellate scrutiny. And the reasons why have little to do with legal consistency. Rather, appellate courts—despite their ostensible role as guardians of constitutional principle—are not immune to the pressures of policy and politics. They are acutely aware that a ruling discrediting canine alerts as insufficient to establish probable cause would do more than simply reinterpret the Fourth Amendment; it would delegitimize decades of policing practices and call into question the legality of thousands—if not millions—of prior searches.

More to the point, it would effectively invalidate a law enforcement tool in which departments have invested vast sums of public money, resources, and training. Drug detection dogs are not only a budget line item; they are institutional symbols—paraded in public demonstrations, cited in funding proposals, and woven into the operational fabric of drug interdiction policy. Courts know this. And so do prosecutors.

To acknowledge that these dogs cannot distinguish between present and past odor, or that their alerts are too temporally ambiguous to support probable cause, would be to admit that entire units of law enforcement have been operating on constitutionally shaky ground. Few appellate courts are willing to trigger that reckoning. Courts have carved out exceptions and deferrals to supposed “trained dog behavior” in ways that would not be tolerated for human informants or technological surveillance tools.

The unspoken truth is that judicial reluctance to dismantle the legal foundation of canine sniffs is not due to the strength of the doctrine—it is due to the institutional costs of admitting that the foundation was always flawed. Upholding the sufficiency of a dog alert, even in the face of contradictory scientific and legal principles, allows courts to preserve the status quo under the guise of deference to law enforcement training and certification. In this sense, the question is not whether the law makes logical sense. It is whether the judiciary, particularly at the appellate level, is willing to confront the full implications of that logic. And history suggests that when law collides with entrenched policy interests, it is often the law that yields.

[1] Chicago Tribune analysis of suburban traffic stops (2007–09), as reported by NPR, Eyder Peralta, Report: Drug Sniffing Dogs are Wrong More Often than Right, (January 7, 2011 )

[2] NACDL et al. Amicus Brief in Florida v. Harris (2012), summarizing field studies .

[3] NSW Ombudsman Review of the Police Powers (Drug Detection Dogs) Act of 2001 (June 2006)

[4] SBS News, Fresh calls to end use of sniffer dogs at festivals after report finds low success rate (September 30, 2023)

[5] Eyder Peralta, Report: Drug Sniffing Dogs are Wrong More Often than Right (January 7, 2011)

[6] Science Daily, Explosive- and drug-sniffing dog performance is affected by their handlers' beliefs (February 1, 2011)

Case Victory: Indiana Court of Appeals Overturns Illegal Search in Thomas v. State

Wed, 07 May 2025 14:48:58 GMT

May 5, 2025 – A Landmark Fourth Amendment Win

At Brian J Johnson Law, we believe the Constitution still matters—especially when it comes to the privacy of your home. On June 6, 2025, the Indiana Court of Appeals issued a powerful ruling in Thomas v. State, reversing a trial court’s denial of our motion to suppress and throwing out all evidence seized under an unconstitutional search warrant.

Here’s what the Court held—and why it matters:

The Facts

Police executed a search warrant at our client’s home based solely on the fact that a truck allegedly involved in a theft was parked on a public street nearby. The warrant authorized officers to search the entire home, including bedrooms and dresser drawers, for “construction equipment” and other vaguely defined items—even though the stolen property in question was the size of a small car.

To make matters worse, the affidavit included language suggesting drug trafficking—despite no mention of drugs anywhere in the investigation. It was later admitted to be a “copy-and-paste” error.

The Ruling

The Indiana Court of Appeals ruled:

There was no probable cause to search the home.
Proximity alone does not create a nexus between a crime and a residence.
The warrant was overbroad and failed to describe what was to be seized with any meaningful particularity.
“Template” or boilerplate language in affidavits is not a substitute for facts.
The good faith exception did not apply, because no reasonable officer could have relied on such a facially deficient warrant.
All evidence seized under the first and second warrant must be suppressed.

This wasn’t a technicality. The Court made clear: vague warrants, speculation in place of facts, and cut-and-paste policing are not tolerated under the Fourth Amendment.

Why It Matters

This decision protects all Indiana citizens from unconstitutional searches. The Court reaffirmed that:

“The mere fact that a vehicle… is parked on a public street near a residence does not give law enforcement the authority to invade the privacy of that residence.”

At Brian J Johnson Law,, we’re proud to have defended not only our client, but also the privacy rights of every Hoosier. If your rights have been violated or you’re facing a criminal charge based on a questionable search, contact us. We know how to fight—and win.

Read the opin ion, State v. Thomas, 24A-CR-01731 , or watch the argument here.

A detective wants to talk to me? Why shouldn’t I just tell him “my side of the story?”

Fri, 23 Aug 2024 13:44:47 GMT

"You never see a fish mounted on the wall with its mouth shut"

If a detective wants to talk to you about an accusation, it's essential to approach the situation with caution and understand your rights and potential risks. Here are some reasons why you should never speak to the detective without first consulting an attorney:

1. You have the right to remain silent: In the United States, you have the constitutional right to remain silent under the Fifth Amendment. Anything you say to a detective during an interrogation can be used against you in court. It's important to be aware of this right and to exercise it if you believe that what you say could potentially incriminate you.

2. Misunderstandings and misstatements: People can inadvertently make statements that are inaccurate or may be misinterpreted during police interviews. What you say can be taken out of context, and even well-intentioned explanations can be used against you.

3. Lack of legal representation: When you speak to a detective without an attorney present, you may not fully understand the legal implications of your statements, and you may not be aware of your rights. An attorney can help protect your interests, advise you on what to say, and ensure that your rights are not violated.

4. The detective's role: Detectives are trained to gather evidence, and their primary goal is almost always be to build a case against a suspect. They are not there to act as your advocate or to ensure your rights are protected. Their questions may be designed to elicit incriminating information.

5. Risk of self-incrimination: Even if you believe you are innocent, it's possible to say something that inadvertently makes you appear guilty or provides the police with information that strengthens their case. It's often advisable to discuss the situation with an attorney first to strategize about the best way to present your side of the story.

6. Legal advice: An attorney can provide guidance on how to handle the situation, whether it's through a formal interview, a written statement, or not speaking to the detective at all. They can help you navigate the legal process and protect your rights.

If you are contacted by a detective, politely and respectfully decline to answer questions until you have had a chance to consult with an attorney. You can say something like, "I want to cooperate, but I'd like to speak with my attorney first." An attorney can help you make an informed decision about how to proceed and can ensure that your rights are protected throughout the process.

What is the difference between being “in custody” and “detention” and why is it important?

Tue, 25 Jun 2024 16:22:46 GMT

The terms "in custody" and "detained have distinct meanings and legal implications and are often confusing to judges, attorneys, and lay people alike

1. In Custody:

- Being "in custody" generally means that a person is formally under arrest, deprived of their freedom, and not free to leave. Indiana courts have described custody as a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." It often involves being physically detained in a police vehicle, jail, or other secure location. At least in Indiana, being placed in handcuffs is almost always considered being “in custody”. When placing a person in handcuffs to transport them to jail, some police officers will say, “you’re not under arrest, you’re just being placed in handcuffs for my safety,” but legally you are “in custody” in that scenario, regardless of how a police officer describes the situation.

- When a person is in custody, law enforcement must read them their Miranda Rights before conducting a custodial interrogation. This is to inform the individual of their right to remain silent, the right to an attorney, and the right to stop answering questions.

2. Detained:

- Being "detained" means that a person is temporarily stopped or held by law enforcement for investigative purposes, but they are not necessarily under arrest or in custody.

- During a detention, the person is not free to leave the scene, but the level of intrusion on their freedom is less severe than being "in custody". Law enforcement may detain individuals to conduct brief questioning and check identification, but they must have a reasonable suspicion that the person is involved in criminal activity.

The key difference between the two is the degree of freedom of movement. In custody implies a significant loss of freedom, often involving arrest and formal detention, while being detained is a temporary and limited restriction of one's freedom for investigative purposes.

When do police have to “read me my rights?”

The distinction between being “in custody” or being “detained” is important because it impacts whether a police officer has to “read you your rights” before asking questions.

Miranda Rights, often referred to as the "Miranda warning" or "Miranda advisement," are a set of rights that must be read to individuals in police custody or under custodial interrogation in the United States. These rights are based on the Supreme Court case Miranda v. Arizona (1966) and are designed to inform individuals of their constitutional rights and protect their Fifth Amendment rights against self-incrimination. The Miranda warning typically includes the following rights:

1. The Right to Remain Silent: The individual has the right to remain silent and not answer any questions. Anything they say can and will be used against them in a court of law.

2. The Right to an Attorney: The individual has the right to an attorney. If they cannot afford one, an attorney will be provided to them at no cost (commonly known as a public defender).

3. The Right to Stop Questioning: The individual can stop answering questions at any time during the interrogation and request an attorney. If they invoke this right, the police must stop questioning them until an attorney is present.

4. The “Right to Understanding”: Implicitly, the individual must understand these rights. The police must ensure that the individual comprehends their Miranda Rights and voluntarily waives or invokes them.

The purpose of the Miranda warning is to protect individuals from self-incriminating statements and to ensure that they are aware of their rights when in police custody or subject to custodial interrogation. If law enforcement fails to read a person their Miranda Rights, any statements or confessions made by that person during questioning may be inadmissible in court.

It's important to note that Miranda Rights are not required in all situations. They are specifically applicable when an individual is in custody and subject to interrogation by law enforcement. Routine questions, traffic stops, and general conversations with the police may not trigger the need for Miranda warnings – this is why, for example, police are not required to “read you your rights” every time they pull you over for a traffic violation; the person is unquestionably not free to leave, and is therefore considered “detained”. But typically a routine traffic stop, at least at the outset, does not involve a “restraint on freedom of movement of the degree associated with a formal arrest,” and a Miranda warning is not required. But what begins as a “routine” traffic stop may, depending on the facts and circumstances, develop into a custodial situation. However, the line between “detention” and “custody” can be legally complex and may vary based on specific circumstances and legal standards in different jurisdictions. This complexity leads to a lot of confusion, even with judges at the appellate level.

I was in custody and was not advised of my rights, what happens?

If an individual is in custody and is not advised of their Miranda Rights, it’s not a “technicality” that means the case is automatically dismissed, but a violation of Miranda could result in a person’s admissions being excluded from evidence. For example, if a person is in handcuffs being transported to the jail on suspicion of operating their car while intoxicated and the officer asks the person how much they had to drink without having first advised them of their Miranda Rights, the person’s answer would typically be inadmissible in a trial against them (with some exceptions). Conversely, if a police officer asks no questions but a drunk person starts telling the police about how much they had to drink and how drunk they feel while on their way to the jail, those statements will generally be admissible against them because the police are not engaging in interrogation. Also, any statements they made prior to being in custody would still be admissible, as would the officer’s observations and the results of any field sobriety tests, or any certified chemical test results, which are not testimonial in nature, and thus not covered by Miranda.

This article is intended to offer only a general summary of the distinction between “custody” and “detention” and its ramifications in a criminal case. It’s important to note that it is impossible to fully cover one of the most critical and complicated legal concepts in the abstract, in a few thousand words. There are literally an infinite number of possible factual scenarios and exceptions to the “general” rules governing custody and its impact on the admissibility of evidence and this article is not intended as a substitute for the advice of a skilled criminal defense attorney analyzing the facts of a specific case.

11 Reasons it is Important to Hire an Experienced Trial Attorney

Thu, 13 Jun 2024 15:59:34 GMT

Hiring a criminal defense attorney with trial experience is important for several reasons, as it can significantly affect the outcome of your case. Here are some key reasons why trial experience is crucial when choosing a criminal defense attorney:

1. Effective Advocacy at Trial: Trial experience equips an attorney with the skills and knowledge to effectively advocate for your rights and interests in the courtroom. This includes the ability to present evidence, cross-examine witnesses, and make persuasive arguments before a judge and jury.

2. Legal Expertise: A defense attorney with trial experience is well-versed in the relevant laws and procedures, ensuring that they can navigate the legal system effectively, identify legal issues, and make compelling legal arguments.

3. Case Assessment: Attorneys with trial experience can accurately assess the strengths and weaknesses of your case. They can provide you with a realistic evaluation of the potential outcomes at trial, helping you make informed decisions about whether to go to trial or seek a plea bargain.

4. Negotiation Leverage: When the prosecution knows that your attorney is prepared and willing to go to trial, it can enhance your negotiating position when pursuing a plea deal. Prosecutors may be more willing to offer favorable terms to avoid the uncertainties of trial.

5. Strategic Decision-Making: An experienced trial attorney can develop a comprehensive trial strategy tailored to your case. They can analyze the evidence, identify legal issues, and determine the most effective way to present your defense.

6. Cross-Examination Skills: Effective cross-examination of witnesses is a critical component of a successful trial defense. An experienced attorney knows how to challenge the credibility of prosecution witnesses and expose inconsistencies or biases.

7. Evidence Presentation: Trial attorneys are skilled in presenting evidence in a compelling and persuasive manner. They can use their knowledge of the rules of evidence to ensure that relevant and admissible evidence is presented in your favor.

8. Courtroom Confidence: Confidence and composure in the courtroom can have a significant impact on the judge and jury. An attorney with trial experience is more likely to project confidence, which can enhance the credibility of your defense.

9. Understanding Jury Dynamics: Trial attorneys understand how juries think and what factors can influence their decisions. This insight allows them to tailor their arguments and presentation to maximize the chances of a favorable verdict.

10. Appellate Considerations: If a case leads to an unfavorable outcome at trial, having an attorney with trial experience is beneficial when considering post-trial options, such as appeals. They can identify potential legal errors that may have affected the verdict.

11. Crisis Management: In the event that unexpected developments occur during trial, an experienced attorney can adapt and respond effectively to protect your rights and interests.

Ultimately, trial experience is a valuable asset for a criminal defense attorney because it demonstrates their ability to navigate the complexities of the courtroom, protect your rights, and advocate vigorously on your behalf. When facing criminal charges, the choice of attorney can have a profound impact on the outcome of your case, making it important to select an attorney with a track record of success in trial advocacy.