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LAS VEGAS (AP) — Nevada's state wiretap law was written before wireless devices came into everyday use, but the state Supreme Court ruled this week that it still gives police the ability to get a warrant to intercept cellphone calls and text messages.
A three-justice panel rejected an appeal by Phillip Douglas Sharpe, 64, who is serving 10 years to life in state prison after pleading guilty in 2013 in Lyon County to trafficking in a controlled substance. Sharpe's attorney, Paul Quade of Reno, said he'll talk with Sharpe before deciding whether to ask the entire seven-member high court to reconsider.
In the opinion issued Thursday, Justice Mark Gibbons noted that federal wiretap laws have evolved since the Nevada law was written in 1973. Congress in 1986 added "electronic communication" to federal law covering wire and oral communication. Nevada lawmakers never did.
"Did we even have cellphones in the '70s?" asked Dominic Gentile, a Las Vegas lawyer who provided a friend-of-the-court brief in the case for Nevada Attorneys for Criminal Justice.
"Nevada never came up to speed," he said Friday.
Still, Gibbons and Justices Nancy Saitta and Kristina Pickering concluded the Nevada law was written broadly enough to allow access to wireless communications because wires are used to make connections in hand-held devices.
Quade argued that because Nevada never updated the law, the law doesn't apply and the information that led to Sharpe's arrest should be suppressed. Sharpe was arrested after police in 2010 obtained a warrant, tapped his cellphone, heard about a pending drug deal, and arrested him with more than 3 pounds of methamphetamine.
Gentile noted that courts in several other states have taken the same position.
"At one small part of it, a hard wire is used," Gentile said. "You can't really disagree with the court's reasoning."
Steven Owens, a chief deputy Clark County district attorney who also briefed the state high court, said the decision makes Nevada wiretap law consistent with what has always been permitted under federal wiretap law. "I don't expect the decision to have any impact on law enforcement because it maintains the status quo and is consistent with the way law enforcement has been interpreting the statutes," he said.
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