131 Nevi, Advance opinion 32
IN THE SUPREME COURT OF THE STATE OF NEVADA
PHILLIP DOUGLAS SHARPE, No. 64287
FILED
Appellant, JUN 0 4 2015
vs.
LA hE K LiNCSMAN
THE STATE OF NEVADA,
re •
- RE tv:Fc_C,_Qv R
, BY
Respondent. CHI DEE
Appeal from a judgment of conviction, pursuant to a guilty
plea, of trafficking in a controlled substance. Third Judicial District
Court, Lyon County; Leon Aberasturi, Judge.
Affirmed.
Quade Law, Ltd., and Paul E. Quade, Reno,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Robert Auer, District
Attorney, and Jeremy R. Reichenberg and Moreen Scully, Deputy District
Attorneys, Lyon County,
for Respondent.
Gordon Silver and Dominic P. Gentile, Las Vegas,
for Amicus Curiae Nevada Attorneys for Criminal Justice.
Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy
District Attorney, Clark County,
for Amicus Curiae Nevada District Attorneys Association.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
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OPINION
By the Court, GIBBONS, J.:
In this opinion, we address whether Nevada wiretap law
permits the interception of cellular telephone calls and text messages,
even though it has not been updated since 1973. We conclude that Nevada
wiretap law, assuming its other statutory requirements are satisfied,
allows for the interception of cellular telephone calls and text messages.
FACTS AND PROCEDURAL HISTORY
In 2010, officers began investigating appellant Phillip 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
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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.
DISCUSSION
Although Sharpe raises a multitude of issues on appeal, we
take this opportunity to discuss 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 district court
disagreed. After oral arguments on appeal, we ordered amicus briefs on
the following narrow issue: "whether Nevada wiretap law allows for the
interception of cellular telephone calls and SMS text messages. [And]
[m]ore 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."
'Franks v. Delaware, 438 U.S. 154 (1978).
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This issue presents questions of statutory interpretation,
which we review de novo. See State v. Lucero, 127 Nev. 92, 95, 249 P.3d
1226, 1228 (2011).
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." Bartnicki v.
Vopper, 532 U.S. 514, 523 (2001) (internal quotations omitted). This
legislative effort resulted in the enactment of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968. Id. at 523. Title III allowed
for the interception of both wire communications and oral communications
as long as certain requirements were met. Id. ("One of the stated purposes
of [Title III] was to protect effectively the privacy of wire and oral
communications." (internal quotations omitted)). Pertinent to the issue on
appeal, Title III defined "wire communication' [as] . . . '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 like
connection between the point of origin and the point of reception.'"
Commonwealth v. Moody, 993 N.E.2d 715, 718 (Mass. 2013) (emphasis
omitted) (quoting Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, § 802, 82 Stat. 197, 212 (1968) (codified as amended at
18 U.S.C. § 2510 (2014))).
"In enacting Title III [Congress] intended to occupy [and thus
preempt] the field of wiretapping and electronic surveillance, except as
that statute specifically permits concurrent State regulation." Id. at 718
(alterations in original) (internal quotations omitted). The 1968 Senate
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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." S. Rep. No. 90-1097, at 98
(1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2187. Accordingly, states
were allowed to adopt their own wiretap laws, as long as they were at
least as restrictive as federal legislation. See State v. Serrato, 176 P.3d
356, 360 (Okla. Crim App. 2007) ("Under the current regime established
by Congress in Title III, a state wiretapping law can never be less
restrictive than federal law.").
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. See A.B. 47, 48th Leg. (Nev. 1957).
In 1973, the Nevada Legislature introduced Senate Bill 262.
See S.B. 262, 57th Leg. (Nev. 1973). Once passed, Senate Bill 262
provided 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. See
1973 Nev. Stat., ch. 791, §§ 10, 11, at 1743. At the same time, the
Legislature amended NRS 200.650 to state that a person could eavesdrop
if the person met the requirements of the wiretap statutes. See id., § 26,
at 1749.
Subject to other qualifications, Senate Bill 262 allowed "a
supreme court justice or. . . a district judge in the county where the
interception is to take place" to issue "an order authorizing the
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interception of wire or oral communications." Id., § 11, at 1743; see also
NRS 179.460. A "wire communication," like its federal equivalent at the
time, was defined as "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." 1973 Nev. Stat., ch. 791, § 10, at 1743; see also
NRS 179.455.
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). See generally Pub. L. No. 99-508, 100 Stat. 1848
(1986) (codified as amended in scattered sections of 18 U.S.C.). As part of
this act, Congress created "a new category of protected communication
called 'electronic communication," to go along with wire and oral
communications. Moody, 993 N.E.2d at 719. Congress also amended the
definition of "wire communication." Id. at 720. Due to the creation of the
"electronic communication" category and the amendment of the definition
of "wire communication," today, cellular telephone calls and text messages
are commonly viewed as electronic communications. See Bartnicki, 532
U.S. at 524; McKamey v. Roach, 55 F.3d 1236, 1240 (6th Cir. 1995).
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." Moody, 993 N.E.2d at 720.
Nevada did not update its wiretap statutes. On appeal, Sharpe argues
that Nevada's failure to update its wiretap law to reflect federal wiretap
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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 asserts 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.
"When a statute is plain and unambiguous, this court will give
that language its ordinary meaning and not go beyond it." State v. Allen,
119 Nev. 166, 170, 69 P.3d 232, 235 (2003). We only turn to a statute's
legislative history when the statute is ambiguous. Lucero, 127 Nev. at 95,
249 P.3d at 1228. A statute is ambiguous "when the statutory language
lends itself to two or more reasonable interpretations." Id. (internal
quotations omitted). Further, "t]he plainness or ambiguity of statutory
language is determined [not only] by reference to the language itself, [but
as well byl the specific context in which that language is used, and the
broader context of the statute as a whole." Yates v. United States, 574
U.S. , 135 S. Ct. 1074, 1081-82 (2015) (alterations in original)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
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." 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." NRS 179.455.
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We conclude that NRS 179.455's definition of "wire
communication" includes cellular telephone calls and text messages by its
plain terms. The broad scope of "any communication" is obvious. We
conclude that "any" indicates 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." NRS 179.455.
When faced with a similar question, many courts have found
that cellular telephone calls and text messages are made in part "by the
aid of wire. .. between the point of origin and the point of reception,"
NRS 179.455; see In re Application of United States for an Order
Authorizing Roving Interception of Oral Communications, 349 F.3d 1132,
1138 n.12 (9th Cir. 2003) ("Despite the apparent wireless nature of
cellular phones, communications using cellular phones are considered wire
communications under the statute, because cellular telephones use wire
and cable connections when connecting calls."); Moody, 993 N.E.2d at 722-
24 (concluding that Massachusetts' wiretap law, which possesses the same
1968 definition of "wire communication" as Nevada, allows for the
interception of cellular telephone calls and text messages because each
communication "travels in part by wire or cable or other like connection");
Serrato, 176 P.3d at 359 ("The evidence presented in the District Court
established that 'wireless' cellular phone communications are actually
processed by the initiation of a wireless communication from a handset
(cell phone) to a cellular tower, from which the communication is then
transmitted by wire through a switching station to another transmitting
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tower. . . ." (emphasis added)); see also S. Rep. No. 99-541, at 9 (1986),
reprinted in 1986 U.S.C.C.A.N. 3555, 3563 (noting that cellular telephone
services "user) both radio transmission and wire to make 'portable'
telephone service available"). We agree with the conclusion of our sister
courts: cellular telephone calls and text messages rely in part upon the aid
of wire for the purposes of transmission.
Accordingly, we conclude that cellular telephone calls and text
messages are "wire communication[s]" 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 asserts on appeal that because Nevada did not
update its wiretap law in accordance with federal wiretap law, Nevada
wiretap law is less restrictive and is thus preempted. Sharpe, however,
fails to point out how Nevada wiretap law is less restrictive, i.e., what
Nevada wiretap law allowed to occur here which federal wiretap law
would have prohibited. Due to our 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, we conclude that
Nevada wiretap law is not preempted. See S. Rep. No. 90-1097, at 98
(1968), reprinted in 1968 U.S.C.C.A.N. 2111, 2187 (stating that Title III
envisioned that states "would be free to adopt more restrictive legislation,
or no legislation at all, but not less restrictive legislation").
Consequently, we conclude that the district court did not err
in finding that Nevada wiretap law permitted the interception of Sharpe's
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cellular telephone calls and text messages. 2 For the reasons set forth
above, we affirm Sharpe's judgment of conviction.
Gibbons
We concur:
Pickering
2 Further, we conclude that the district court did not err in its
handling of the other issues raised by Sharpe on appeal.
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