One of the courses I teach in the spring is Criminal Procedure: 4th, 5th, and 6th Amendment. It's a wonderful class to teach (thanks in part to the fantastic Miller and Wright casebook) and part of the fun is keeping up with the ever-changing doctrine, particularly in the areas of search & seizure and right to counsel. I try to keep a close eye on what goes on in the states--as we crim profs know, the practice of criminal law is really about state law. The feds may get all the glory, but the state gets all the action.
That said, it's not often that you hear about two major decisions from the same state court in the same day. After reviewing the two latest decisions from the Kentucky Supreme Court, one involving an ineffective assistance of counsel claim and one involving frisks of motorists, all I can say is this: in Kentucky, keep your friends close and your rights even closer.
The first case, Commonwealth v. Padilla, held that a defense attorney's affirmative misadvice to a client regarding the immigration consequences of a guilty plea did not violate the 6th Amendment's right to effective counsel. Now, this doesn't sound so surprising to anyone who's practiced criminal law-- as a general rule, it's hard to win on ineffective assistance of counsel. What makes the Kentucky Court's ruling so surprising is that the advice, in this instance, wasn't just confusing or unclear--it was flat out wrong. This harsh standard--essentially insulating an attorney from giving even "gross misadvice"--conflicts with the law in a variety of other places, including the 2nd and 9th circuits.
On the same day, the Kentucky Supremes also decided Owens v. Commonwealth, a case involving the ability of the police to routinely frisk the companions of motorists caught with drugs. In Owens, the driver of the car was caught without a license and with a crack pipe, and the police then ordered the defendant out of the car so they could frisk him as well. Of course, deciding to frisk a potentially dangerous passenger after the driver has been found carrying drugs is a normal part of police practice. The interesting decision here was, again, the Kentucky Supreme Court's, which decided to approve an "automatic companion rule" permitting the frisk of *anyone* who happened to be in the car, suspicious or not. Although the Kentucky Court did restrict the rule to those situation where the driver was arrested and the passengers outside the car, it seemed unconcerned with the rule's potential for misuse and abuse. So much for totality of the circumstances!
So the next time you drive through the Bluegrass State, to visit your "Old Kentucky Home," be sure to watch out when:
"...hard times comes a knocking at the door,
Then My Old Kentucky Home, good night! "
AGGGHHHH!!! I missed it all AGAIN. You need to give a clue, as to when you're going to post your stash!
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