MENU

Criminal Law & Procedure

The Ferguson Effect, The War on Cops, Over-Incarceration, and more!

Miami Lawyers Chapter Tuesday, July 26, 05:30 PMThe Coral Gables Country Club
990 Alhambra Circle
Coral Gables, FL 33134

Speakers:

  • Heather MacDonaldThomas W. Smith Fellow, The Manhattan Institute, New York City
  • Tamara Lawson - Associate Dean for Faculty Development & Professor of Law, St. Thomas University School of Law, Miami, Florida

Moderator, William Shepherd, Esq. - Partner, Holland & Knight, Former Florida Statewide Prosecutor

Privacy and Cell-Site Simulators

Criminal Law & Procedure Practice Group Teleforum Tuesday, July 19, 01:00 PMFederalist Society Teleforum Conference Call

Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.

It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.

Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?

Featuring:

  • Howard W. Cox, Adjunct Professor, George Washington University
  • Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law

How “False” Must a Claim be under the False Claims Act? The Supreme Court Decides Universal Health Services v. United States ex rel. Escobar - Podcast

Litigation Practice Group Podcast
Shane B. Kelly, Mark B. Sweet June 17, 2016

If you do business with the federal government, when does violating a statute, regulation, or contract provision become fraud? This question was answered by the U.S. Supreme Court on June 16 in Universal Health Services v. United States ex rel. Escobar, which examines the scope of the False Claims Act (FCA). The FCA provides for treble damages and civil fines for anyone submitting false claims for payment to the federal government. Violations of the FCA must involve a “false or fraudulent claim” or “a false record or statement material to a false or fraudulent claim.” Traditionally, the falsity element of an FCA claim required a “factual falsehood” (e.g., submitting a claim for payment for 10 computers when only 5 were delivered) or an express false certification (e.g., certifying to a lack of organizational conflicts of interest when such conflicts exist). Circuit Courts had split on this question, but the Supreme Court ruled today that a party can be held liable under the implied false certification theory when the party “fails to disclose noncompliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to goods and services.” This decision has significant implications for anyone doing business with the federal government and could substantially increase contractors’ exposure to the FCA’s punishing statutory regime. 

Featuring:

  • Shane B. Kelly, Associate, Wiley Rein LLP
  • Mark B. Sweet, Partner, Wiley Rein LLP

Bernard v. Minnesota - Post-Argument SCOTUScast

SCOTUScast 6-16-16 featuring Jonathan Ellis
Jonathan Ellis June 16, 2016

On April 20, 2016, the Supreme Court heard oral argument in Bernard v. Minnesota, which was consolidated with Birchfield v. North Dakota and Beylund v. Levi.

In Bernard, William Robert Bernard, Jr., admitted he had been drinking, but he denied driving his truck and refused to perform a field sobriety test. He was arrested on suspicion of driving while impaired and taken to the police station, where he refused to consent to a chemical test in violation of Minnesota state law. Bernard was charged with two counts of first-degree test refusal pursuant to state law. In Birchfield, Danny Birchfield was arrested after failing field sobriety tests after he had driven his vehicle into a ditch, but he refused to consent to a chemical test, resulting in a misdemeanor charge. He moved to dismiss the charge and claimed that the state law in question violated his Fourth Amendment right against unreasonable search and seizure. In Beylund, Steve Beylund consented to a blood alcohol to test to confirm he was driving under the influence, but only after being informed it was a criminal offense to refuse a blood alcohol test in North Dakota. The test confirmed he was over the legal limit, and Beylund was charged with driving under the influence.

The men in these cases challenged state statutes criminalizing refusal to submit to a chemical test, arguing among other things that the statutes violated the Fourth Amendment. The Supreme Court of Minnesota and the Supreme Court of North Dakota rejected their respective challenges. The question before the U.S. Supreme Court in these consolidated cases is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

To discuss the case, we have Jonathan Ellis, who is an Associate at Latham & Watkins.