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Fourth Amendment

Justice Scalia and the Criminal Law - Audio/Video

2016 National Lawyers Convention
Rachel Barkow, Stephanos Bibas, Orin S. Kerr, Paul J. Larkin, Stephen J. Markman, David Stras, John G. Malcolm November 23, 2016

Justice Scalia's originalism had an important impact on our nation's criminal law. While sometimes overlooked, his commitment to the rights of criminal defendants, as rooted in the Constitution, is indisputable. He forthrightly addressed new Fourth Amendment issues including technological advances in surveillance, revived the Sixth Amendment's jury and confrontation clauses, remained mindful of both common law and substantive criminal law concerns, and in many instances swayed his fellow justices. This panel will delve into these areas and discuss if and how Justice Scalia's work will continue to affect future Court decisions.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Criminal Law: Justice Scalia and the Criminal Law
3:30 p.m. – 5:00 p.m.
East Room

  • Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
  • Prof. Stephanos Bibas, Professor of Law and Criminology and Director, Supreme Court Clinic, University of Pennsylvania Law School
  • Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • Mr. Paul J. Larkin, Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Hon. Stephen J. Markman, Michigan Supreme Court
  • Moderator: Hon. David R. Stras, Minnesota Supreme Court
  • Introduction: Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

The Mayflower Hotel
Washington, DC

Supreme Court Preview: What Is in Store for October Term 2016? - Event Audio/Video

Co-Sponsored by the Faculty Division and the Practice Groups
Thomas C. Goldstein, Nicholas Quinn Rosenkranz, Carrie Severino, George J. Terwilliger, Robert Barnes September 28, 2016

October 4th will mark the first day of oral arguments for the 2016 Supreme Court term. The Court's docket already includes major cases involving insider trading, the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, criminal law, IP and patent law, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, and voting rights.

The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court.

This event was held on September 27, 2016, at the National Press Club in Washington, DC.

Featuring:

  • Mr. Thomas C. Goldstein, Goldstein & Russell PC
  • Prof. Nicholas Quinn Rosenkranz, Georgetown Law Center
  • Ms. Carrie Severino, Judicial Crisis Network
  • Hon. George J. Terwilliger, McGuireWoods LLP
  • Moderator: Mr. Robert Barnes, The Washington Post

National Press Club
Washington, DC

Privacy and Cell-Site Simulators - Podcast

Criminal Law & Procedure Practice Group Podcast
Howard W. Cox, Brian L. Owsley July 20, 2016

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

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.