State v. Reyes

808 P.2d 544, 107 Nev. 191, 1991 Nev. LEXIS 30
CourtNevada Supreme Court
DecidedMarch 28, 1991
DocketNo. 20559
StatusPublished
Cited by1 cases

This text of 808 P.2d 544 (State v. Reyes) 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
State v. Reyes, 808 P.2d 544, 107 Nev. 191, 1991 Nev. LEXIS 30 (Neb. 1991).

Opinions

OPINION

By the Court,

Steffen, J.:

This is an appeal from an order granting a motion to suppress evidence obtained pursuant to a search warrant issued on the [192]*192basis of information confirmed through eavesdropping on an extension telephone by a police agent. The sole issue on appeal is whether the eavesdropping, occurring without the consent of all parties to the conversation, was authorized under Nevada law. We hold in the affirmative and reverse.

Nevada law prohibits the unauthorized interception of wire or oral communications. See NRS 200.620; NRS 179.410 to 179.515, inclusive. Under NRS 179.430 the term “intercept” is defined as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device or of any sending or receiving equipment.” In pertinent part, NRS 179.425 defines “electronic, mechanical or other device” as “any device or apparatus which can be used to intercept a wire or oral communication other than: 1. Any telephone . . . instrument, equipment or facility, or any component thereof . . . (b) Being used by ... an investigative or law enforcement officer in the ordinary course of his duties.” (Emphasis added.)

In the instant case, an untested police agent/informant, under the direction of officers of the Washoe County Consolidated Narcotics Unit (CNU) used a police telephone to call a suspected drug dealer, Reyes, and arrange a buy. Because the officers knew that the informant’s conversation with Reyes would be in Spanish, they took the reasonable precaution of having an interpreter listen to the conversation on an extension telephone. CNU agents did not want to risk the possibility of the untested informant either jeopardizing the lives of the officers or frustrating a lawful prosecution by means of an entrapment. We conclude that the conduct of the officers was both reasonable and lawful under the statutory latitude quoted above.

The State’s position is consistent with that of other courts that have had occasion to consider the same issue. For example, in State v. Page, 386 N.W.2d 330 (Minn.Ct.App. 1986), police officers entered a suspect’s apartment without a warrant and under disputed circumstances; the suspect’s roommate was the only person present. While the officers were in the apartment, the telephone rang. The roommate was directed to answer the phone while the officers listened in on an extension. Because it is evident that the Page court’s reasoning is applicable to the instant case, we quote from the ruling at length:

Since there was no consent, we must determine if there was an “interception” as contemplated by the statutes. If the eavesdropping did not involve the use of an “electronic, mechanical or other device,” then no interception occurred and the officer’s actions were proper. See 18 U.S.C. § [193]*1932510(4); Minn.Stat. § 626A.01, subd. 5. A telephone extension, when used for eavesdropping by an investigative or law enforcement officer in the ordinary course of business, does not constitute an interception. 18 U.S.C § 2510(5); Minn.Stat. § 626A.01, subd. 6(a). Thus, law enforcement officers are insulated from the proscription against eavesdropping, so long as the eavesdropping occurred in the ordinary course of their duties, which includes the investigation of crimes. This eavesdropping is an ordinary tool of law enforcement officers and is consistent with public policy. This is inherent in the statutory scheme at both the federal and state level. See 18 U.S.C. § 2510(5); Minn.Stat. § 626A.01, subd. 6(a).
In this case, the police utilized a telephone extension in furtherance of the investigation of a case of assault and robbery. The use of the telephone extension was in the ordinary course of police business. Thus, the use of a telephone extension in this case was not an interception through any “electronic, mechanical or other device,” and the police use of it did not violate the proscriptions against eavesdropping.
This decision is one of first impression in Minnesota, so reference to Minnesota caselaw is not helpful. Our reasoning, however, is consistent with the reasoning of other jurisdictions that have considered similar questions. See, e.g., State v. McDermott, 167 N.J.Super. 271, 400 A.2d 830 (1979). In that case, the police listened to and recorded a telephone conversation of the defendant via a telephone extension. Under the New Jersey eavesdropping statute, which is similar to Minnesota’s, the New Jersey Superior Court found that the police conduct did not constitute an “interception” because the police had utilized a “regularly installed extension telephone.” Id. at 277, 400 A.2d at 834. Since the telephone was not installed specifically for the purpose of eavesdropping, the court found that the use of the telephone occurred within the ordinary course of business. Id. at 277, 400 A.2d at 833. The New Jersey reasoning is persuasive.

(Emphasis supplied.)

Reyes contends that Page is inapposite because unlike Nevada, Minnesota is a one-party consent jurisdiction. Reyes is wrong, however, because consent was not an issue in Page. Moreover, Page is directly applicable to the instant case, because the Minnesota statute, in pertinent part, is virtually identical to the Nevada statute. Thus, in Minnesota, as in Nevada, an exception to the requirement for properly authorized or consensual interception of [194]*194private communications exists when telephone equipment is used “by an investigative or law enforcement officer in the ordinary course of his duties.” Furthermore, recognition of the exception in the instant case is far more compelling than in Page. Here, both the telephone used by the informant and the extension used by the interpreter were located at CNU offices and represented equipment regularly installed and used in the ordinary course of CNU’s investigative and law enforcement duties. In Page, the telephones were in the suspect’s apartment, being used without the approval of the suspect or his roommate in an eifoit to accomplish the successful apprehension and prosecution of the suspect.

The case of Adams v. State, 406 A.2d 637 (Md.App. 1979), involved a jurisdiction that required the consent of all participants to a private communication before an interception by consent was lawftil. In Adams, the victim of a forcible sexual assault was asked to eavesdrop from an extension phone in the police station while the police, through pretext and deception, spoke to potential suspects on the telephone.

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Bluebook (online)
808 P.2d 544, 107 Nev. 191, 1991 Nev. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reyes-nev-1991.