Does Nevada’s wiretap law permit interception of cellular phone calls and text messages?

Wiretap

Sharpe v. State (Nev. Supreme Ct. – June 4, 2015)

The issue is whether Nevada wiretap law allows for the interception of cellular telephone calls and SMS text messages. More specifically, whether NRS 179.460(1)’s mention of “wire or oral communications” includes cellular telephone calls and SMS text messages, considering that similar federal statutes were updated to include “electronic communications,” while NRS 179.460(1) was not.

In 2010, officers began investigating Sharpe after receiving information that he distributed methamphetamines. Approximately four months into their investigation, officers obtained a warrant authorizing a wiretap to intercept communications on two different cellular telephone numbers attributed to Sharpe. The wiretap resulted in the interception of both telephone calls and text messages. After collecting sufficient intelligence, officers obtained a search and seizure warrant for Sharpe’s residence and vehicles.

Four days after obtaining the search and seizure warrant, due to intelligence gathered from physical surveillance and the wiretap, officers anticipated that Sharpe intended to purchase a large quantity of methamphetamines. After observing the presumed drug deal, officers pulled Sharpe over and arrested him. During the arrest, officers confiscated approximately 3.25 pounds of methamphetamines from Sharpe’s vehicle. Almost simultaneously, officers executed the search and seizure warrant at Sharpe’s residence and confiscated small amounts of various drugs and drug paraphernalia.

Sharpe was charged with four drug-trafficking-related felonies. After pleading not guilty on all four counts, Sharpe filed a motion to compel further discovery, two motions to suppress evidence obtained from the wiretap, a motion to suppress evidence obtained from the search of his vehicle, and a motion for a Franks hearing. The district court denied all five motions.

Subsequently, Sharpe pleaded guilty to trafficking in a controlled substance, level III, based upon the 3.25 pounds of methamphetamines confiscated from his vehicle. Sharpe, however, reserved his right to appeal the denial of the aforementioned five motions. On October 18, 2013, the district court sentenced Sharpe to life imprisonment with the possibility of parole after serving 10 years, $235 in fees, and a $50,000 fine.

Although Sharpe raised a multitude of issues on appeal, the Nevada Supreme Court considered a specific issue originating from his second motion to suppress the wiretap. In that motion, Sharpe argued that the fruits of the wiretap should be suppressed because Nevada law does not allow for the interception of cellular communications.

The Nevada Supreme Court explained that in response to the United States Supreme Court’s decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. This legislative effort resulted in the enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III allowed for the interception of both wire communications and oral communications as long as certain requirements were met.

The 1968 Senate Report on Title III states that: “[t] he proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.” Accordingly, states were allowed to adopt their own wiretap laws, as long as they were at least as restrictive as federal legislation.

In 1968, Nevada law was already more restrictive than federal law. Eleven years earlier, the Nevada Legislature had enacted what is now NRS 200.650. At the time, NRS 200.650 prohibited a person from “surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record,” i.e., eavesdrop, a private conversation via a device, unless authorized to do so by one of the persons engaged in the private conversation.

In 1973, the Nevada Legislature passed Senate Bill 262, which proved for Nevada’s wiretap statutes and introduced the two statutes at issue in this appeal, what are today NRS 179.455 and NRS 179.460.

The relevant portions of these Nevada statutes have remained the same since 1973. But federal wiretap law kept developing.

In 1986, Congress amended Title III with the Electronic Communications Privacy Act of 1986 (ECPA) and created a new category of protected communication called “electronic communication,” to go along with wire and oral communications. Due to the creation of the “electronic communication” category and amendment to the definition of “wire communication,” today, cellular telephone calls and text messages are commonly viewed as electronic communications.

Additionally, the ECPA established a two-year grace period for States, essentially delaying Federal preemption with respect to the amendments and allowing States time to amend their wiretap statutes to the extent necessary to meet or exceed the level of protection provided to electronic communications under Title III.

On appeal, Sharpe argued that Nevada’s failure to update its wiretap law to reflect federal wiretap law means that Nevada wiretap law does not give the proper statutory authorization for officers to intercept cellular telephone calls and text messages. Amicus Nevada Attorneys for Criminal Justice asserted that Nevada’s failure to update must be construed as the Legislature choosing to achieve a result different from federal wiretap law, i.e., no authorization for the interception of cellular telephone calls or text messages.

NRS 200.650 allows for the interception of a private communication if authorized by NRS 179.410 to 179.515. NRS 179.460, subject to other qualifications, permits the interception of “wire communications.” Pursuant to NRS 179.455, a “wire communication”—still defined as it was in 1973—is “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception.”

The Nevada Supreme Court concluded that NRS 179.455’s definition of “wire communication” includes cellular telephone calls and text messages by its plain terms. The Court believed that the broad scope of “any communication” was obvious. Therefore, the Court concluded that “any” indicated that both cellular telephone calls and text messages fall within the definition of “wire communication.” Next, for cellular telephone calls and text messages to be included under the plain terms of the definition of “wire communication,” they must be “made in whole or in part . . . by the aid of wire, cable or other like connection between the point of origin and the point of reception.”

Agreeing with the conclusions of courts in other jurisdictions, the Court concluded that cellular telephone calls and text messages are “wire communications” under NRS 179.455’s plain terms, because cellular telephone calls and text messages qualify as “any communication” and are “made in whole or in part. . . by the aid of wire, cable or other like connection between the point of origin and the point of reception.”

Sharpe also asserted on appeal that because Nevada did not update its wiretap law in accordance with federal wiretap law, Nevada wiretap law was less restrictive and is thus preempted. Sharpe, however, failed to point out how Nevada wiretap law was less restrictive, i.e., what Nevada wiretap law allowed to occur here which federal wiretap law would have prohibited. Due to the Court’s holding, current Nevada wiretap law, like federal wiretap law, allows for the interception of cellular telephone calls and text messages. Although the statutes read differently, their allowances in this regard are equally restrictive. Thus, the Court concluded that Nevada wiretap law was not preempted.

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