Sheriff, Pershing County v. Andrews

286 P.3d 262, 128 Nev. 544, 128 Nev. Adv. Rep. 51, 2012 WL 4712020, 2012 Nev. LEXIS 94
CourtNevada Supreme Court
DecidedOctober 4, 2012
DocketNo. 58713
StatusPublished
Cited by17 cases

This text of 286 P.3d 262 (Sheriff, Pershing County v. Andrews) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheriff, Pershing County v. Andrews, 286 P.3d 262, 128 Nev. 544, 128 Nev. Adv. Rep. 51, 2012 WL 4712020, 2012 Nev. LEXIS 94 (Neb. 2012).

Opinion

OPINION

By the Court,

Saitta, J.:

Respondent Nickolas Mark Andrews was in custody at the Pershing County jail when officers discovered a cell phone hidden in a box beneath his bed. The State charged Andrews under NRS 212.093(1), which, in pertinent part, prohibits prisoners, including county jail inmates, from possessing “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping” from custody. After being bound over to the district court, Andrews filed a pretrial petition for a writ of habeas corpus seeking to dismiss the charge, primarily arguing that NRS 212.093(1) is unconstitutionally vague and overbroad, and that, by its terms, the statute does not prohibit the possession of cell phones. The district court agreed with Andrews and dismissed the charge. The State now appeals; we affirm.

[546]*546In its appeal, the State argues, almost exclusively, that the district court erred in determining that NRS 212.093(1) is unconstitutional. It is well settled, however, that we should avoid considering the constitutionality of a statute unless it is absolutely necessary to do so. See, e.g., Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1417 n.6, 952 P.2d 1, 8 n.6 (1997) (declining to consider whether a statute was unconstitutionally vague where principles of statutory construction fully resolved the case); State v. Curler, 26 Nev. 347, 354, 67 P. 1075, 1076 (1902) (“[I]t is a well-established rule of this and other courts that constitutional questions will never be passed upon, except when absolutely necessary to properly dispose of the particular case . . . .”)• In keeping with this practice, we decline to reach the constitutionality of NRS 212.093(1), because by the statute’s plain language, it does not prohibit the possession of cell phones. Thus, the district court correctly dismissed the charge against Andrews on that ground.

“Statutory interpretation is a question of law subject to de novo review.” State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004). In construing a statute, our analysis begins with its text. In re State Engineer Ruling No. 5823, 128 Nev. 232, 239, 277 P.3d 449, 453 (2012). We construe “multiple legislative provisions ... as a whole,” Gaines v. State, 116 Nev. 359, 365, 998 P.2d 166, 169 (2000), and “attribute the plain meaning to a statute that is not ambiguous.” Catanio, 120 Nev. at 1033, 102 P.3d at 590.

NRS 212.093(1) reads:

Except as otherwise provided in subsection 4, a prisoner who is in lawful custody or confinement, other than residential confinement, shall not knowingly manufacture, possess or have in his or her custody or control any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping or attempting to escape from lawful custody or confinement, whether or not such an escape or attempted escape actually occurs.

(Emphasis added.)

Thus, NRS 212.093(1) makes it unlawful for prisoners, including county jail inmates, to possess certain items. But, as lawmakers often do, rather than attempting to list the entire universe of items that it wished to prohibit, the Nevada Legislature set forth a few concrete examples of devices that it was particularly concerned about and included a provision to cover similar items. [547]*547More specifically, the Legislature proscribed the possession of “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook,” or other devices that are “adapted, designed or commonly used for the purpose of escaping.”

The State acknowledges that NRS 212.093(1) does not expressly prohibit cell phones, but it argues that the phrase “designed or commonly used for the purpose of escaping” brings cell phones within the scope of the statute. We disagree. As the State conceded during oral argument, this phrase is simply a catchall provision. Thus, read together, the enumerated items and catchall provision make clear that the aim of the statute is to prohibit the possession of devices used to forcibly break out of, or physically flee from, a jail cell. The best indicium of meaning, of course, is the language of NRS 212.093(1). Each item specified therein is ordinarily understood, as it concerns jail settings, to either forcibly manipulate the confines of a jail cell—keys, picklocks, bolt cutters, wire cutters, saws, and digging tools—or physically exit from a jail cell-ropes, ladders, and hooks. In stark contrast to the items enumerated in NRS 212.093(1), it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell. Indeed, as the district court aptly noted during the hearing on Andrews’ petition for a writ of habeas corpus, “there is nothing remotely similar with a cell phone to a key, pick lock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, [or] hook.”

The State’s overambitious reading of NRS 212.093(1) is akin to an interpretation that we rejected in Puglisi v. State, 102 Nev. 491, 728 P.2d 435 (1986). There, we considered whether “a plastic, (Las Vegas) souvenir-type shopping bag” fell within the purview of NRS 205.080, which prohibited, in relevant part, the possession of any tool commonly used for burglary. Id. at 493, 728 P.2d at 436-37. In rejecting the notion that such an item was a burglary tool, we reasoned that “[i]n the broadest sense it can be argued that a bag is commonly used for the commission of burglary, larceny, or other crime, but so are trouser pockets, pocket books, coat sleeves, girdles and Adidas.” Id. at 493, 728 P.2d at 437 (footnote omitted) (internal quotation omitted). Applying this reasoning here exposes the frailty of the State’s interpretation of NRS 212.093(1).

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Cite This Page — Counsel Stack

Bluebook (online)
286 P.3d 262, 128 Nev. 544, 128 Nev. Adv. Rep. 51, 2012 WL 4712020, 2012 Nev. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheriff-pershing-county-v-andrews-nev-2012.