Saturday, January 19, 2008

Know Your Rights!

This past week I had two individuals stop by the office with the exact same problem. Both had been stopped by police for very minor traffic infractions. Both times the officer asked to search the car and both times consent was given. And both times marijuana was found in the vehicle.

When I asked these people why they had given consent to search, each said the same thing - they thought they had to. They were completely unaware of the fact that they could say no when the police asked to search.

All this begs the question - why aren't the police required to inform them that they have the right to say no? After all, we protect people's Fifth Amendment rights by informing them that they have the right to remain silent. And we protect their Sixth Amendment rights by informing them that they have the right to an attorney (and, if they can't afford one, one will be appointed). Why are Fourth Amendment rights not similarly protected?

In some states, the answer is that they are. I was talking with Ken Sheets about these cases and he says that case law in Ohio is to the effect that, upon conclusion of a traffic stop, the officer must inform the person stopped that "you are free to go. May I search your car?"

Personally, I don't think even that goes quite far enough. How does that insure that the person understands that they can refuse? I think, to be effective, it should be in the form of a warning - "I would like to search your car. You have the right to refuse me permission to search. If you refuse, you are free to go. If you consent, anything I find may be cause for me to arrest you and may be used against you in court."

I am pondering whether to raise this issue in these cases. Both are first offenders who will not likely face jail time if convicted, which makes it a little difficult not to just make a deal and send them on their way.


Tuesday, January 8, 2008

Ineffective Assistance of Counsel

The U.S. Supreme Court issued a decision this week regarding ineffective assistance of counsel. The case is Wright v. Van Patten, No. 07-212.

In this case, counsel for the criminal defendant participated in a plea hearing by telephone and was not physically present in the courtroom. The defendant, in his post-conviction relief petitions, raised the issue of whether the absence of counsel from the courtroom (he participated via telephone), constituted the ineffective assistance of counsel.

The Court sidestepped this issue, however, by holding that habeus relief was not warranted in any event because there was no clear precedent from the Court on the topic, so no violation of the defendant's rights had occurred. The Court expressly reserved the issue of whether participation by telephone might be ineffective. In dicta, the Court said the issue would not be whether counsel who is physically present will perform better than one who attends by phone, but rather whether the lack of attendance prevented the attorney from counseling the accused.

As the courts move more and more toward embracing new technologies these types of issues are going to become increasingly common. My guess is that, in the next few years, we are going to see a few decisions come out of the courts of appeal the the Supreme Court on these issues.