Tag: Fourth Amendment

Does an online blogger qualify for the protections of Nevada’s news shield statute?

Posted on by Jeff Jaeger

Picture of a reporter at a typewriter

Toll v. Wilson (Nev. Supreme Ct. – Dec. 5, 2019)

Almost fifty years ago, the Nevada Legislature passed the news shield statute, NRS 49.275. The current version of the statute protects journalists who are associated with newspapers, periodicals, press associations, and radio and television programs from mandatory disclosure of confidential sources. Since the passage of the statute, the news media has undergone immense changes. Previously, most news outlets disseminated news via physically printed newspapers and magazines or by radio and television broadcasts. Now, in addition to these sources, independent bloggers disseminate news through personal websites. At issue is whether digital media falls within the protections of Nevada’s news shield statute.

Toll runs an online blog that reports on current events in Virginia City, Nevada. Initially, this blog, thestoreyteller.online (The Storey Teller), focused on the then-pending recall election of Sheriff Gerald Antinoro. Toll expressed a counter-narrative to local news sources, which he felt were publishing stories that were critical of Antinoro. After the recall election, Toll continued publishing The Storey Teller. In addition to other current events, Toll took an interest in Storey County Commissioner Lance Gilman. Toll wrote several articles that were critical of Gilman and posted them on The Storey Teller. Specifically, Toll wrote and posted articles that alleged Gilman did not live in Storey County. In response to these articles, Gilman filed suit, alleging defamation per se against Toll.

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Nevada Appellate Courts Advance Opinions for November 7, 2019

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 7, 2019

Gathrite v. Eighth Jud. Dist. Ct.

  • Can evidence that has been suppressed in justice court proceedings on a felony complaint be presented to the grand jury in support of an indictment.

Visit the Nevada Appellate Report for more legal news.

Can a grand jury consider suppressed evidence?

Posted on by Jeff Jaeger

Picture of evidence envelope

Gathrite v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Nov. 7, 2019)

At issue is whether evidence that has been suppressed in justice court proceedings on a felony complaint can be presented to the grand jury in support of an indictment.

Stemming from Gathrite’s alleged involvement in a deadly shooting, the State filed a criminal complaint in the justice court charging Gathrite with murder with use of a deadly weapon and possession of a firearm by a prohibited person. Before the preliminary hearing, Gathrite moved to suppress his statements to the police and the gun discovered as a result of his statements, alleging that the police had violated Miranda v. Arizona, 384 U.S. 436 (1966), and his Fifth Amendment privilege against self-incrimination. The justice court granted the motion and ordered the statements and the gun suppressed. The State did not ask the justice court to reconsider its decision or appeal the justice court’s decision to the district court. Instead, the State voluntarily dismissed the criminal complaint without prejudice and went to the grand jury solely on a charge of possession of a firearm by a prohibited person, presenting the evidence that the justice court had suppressed. The grand jury indicted Gathrite on one count of possession of a firearm by a prohibited person.

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When can one person consent to the search of another person’s living space?

Posted on by Jeff Jaeger

Picture of police officer speaking to two children inside a home

Lastine v. State (Nev. Ct. App. – Aug. 30, 2018)

The Fourth Amendment to the United States Constitution and Article 1, Section 18 of the Nevada Constitution provide that the people possess an inviolable right against unreasonable searches and seizures. Under both provisions, warrantless searches are per se unreasonable subject to a few specific exceptions. One such exception is the consent of a third party who has authority over the premises or effects to be searched. The issues are 1) how does a person’s living arrangement within a third party’s residence affect that third party’s legal authority to consent to a search of the other person’s living space, and 2) can law enforcement officers rely upon the consent of a third party to search a room within a residence without asking about the living arrangements within that residence.

On Wednesday, January 7, 2016, Green’s vehicle was rear-ended by a truck while waiting at a traffic light on her drive home from work, and she suffered a whiplash injury. The driver of the truck drove away after striking Green’s car. Green and one witness told first responders they believed the driver was a man.

In the debris field on the road, a Nevada Highway Patrol trooper found a license plate that did not belong to Green’s car. The trooper ran the plate through dispatch and discovered the plate belonged to a truck registered to Andrew Lastine. Due to concurrent jurisdiction in the area, Washoe County Sheriffs Deputy Gamboa headed to the address listed on the truck’s registration.

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Nevada Appellate Courts Advance Opinions for August 30, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for August 30, 2018

O’CONNELL V. WYNN LAS VEGAS, LLC

  • Must a lawyer, who represents a client on a contingency fee basis, provide proof of hourly billing records before he or she can be awarded attorney fees that are otherwise allowed by agreement, rule, or statute.

LASTINE V. STATE

MOONEY V. STATE

  • When does a private individual act as an agent or instrument for the government implicating the protections of the Fourth Amendment from an unreasonable search and seizure.

Visit the Nevada Appellate Report for more legal news.

Is a telephonic search warrant containing a false statement valid?

Posted on by Jeff Jaeger

Crime scene with detective on a ceellphone

State vs. Sample (Gregory) (Nev. Supreme Ct. – Apr. 5, 2018)

Sample was arrested for driving under the influence of alcohol after failing a preliminary breath test (PBT). The results of the PBT were subsequently used to obtain a search warrant for an evidentiary blood draw. The district court suppressed the PBT results, concluding that they were obtained in violation of Sample’s Fourth Amendment rights, and also suppressed the evidentiary blood draw as the fruit of an illegal search. The State argued on appeal that the district court erred because Sample was under arrest at the time the PBT was administered, the PBT was a legal search incident to the arrest, and the blood evidence was legally obtained pursuant to the search warrant.

While on patrol one night, Deputy Swanson noticed a northbound vehicle cross over fog lines and double yellow lines, accelerate rapidly, cross into a southbound turn lane, and veer back into the northbound travel lane. Deputy Swanson first activated his overhead lights, and then activated his siren in an attempt to initiate a traffic stop. The vehicle did not stop and continued driving to Sample’s residence where it pulled into the driveway.

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Nevada Appellate Courts Advance Opinions for April 5, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for April 5, 2018

STATE VS. SAMPLE (GREGORY)

  • Does a preliminary breath test that is not administered pursuant to a warrant or an exception to the warrant requirement, violate the Fourth Amendment.
  • Is a telephonic search warrant that contains a false statement valid.

KIRSCH VS. TRABER

  • What is the definition of a “final judgment.”

NANCE V. FERRARO

  • Is a district court barred from reviewing the facts and evidence underpinning its prior rulings or custody determinations in deciding whether the modification of a prior custody order is in the child’s best interest.
  • Are parties prohibited from presenting previously known domestic violence evidence defensively to show modification to a custody determination is not in the child’s best interest.

Visit the Nevada Appellate Report for more legal news.