RUBEN BARRIOS-LOMELI, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 27484
STATE OF NEVADA
July 28, 1998
961 P.2d 750 | 779
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney, and John C. Eck, Deputy District Attorney, Carson City, for Respondent.
OPINION
By the Court, YOUNG, J.:
In Barrios-Lomeli v. State, 113 Nev. 952, 944 P.2d 791 (1997), this court reversed a conviction because the police violated appellant Ruben Barrios-Lomeli‘s rights by searching his parked, unoc-
However, we take this opportunity to address the state‘s contention that the one-hour limit in
“We are not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning.” Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d 1020, 1022 (1985). Moreover, “if а statute clearly and unambiguously specifies the legislature‘s intended result, such result will prevail even if the statute is impractical or inequitable.” Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 (1990). Therefore, if the sixty-minute time frame is inadequate, that question should be brought before the legislature, not this court.
Further, the state appears to misapprehend
2. In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement given undеr oath, which must be recorded in the presence of the magistrate or in his immediate vicinity by a certified court reporter or by electronic means, transсribed, certified by the reporter if he recorded it, and certified by the magistrate. The statement must be filed with the clerk of the court.
3. After a magistrate has issued a search warrant,
whether it is based on an affidavit оr an oral statement given under oath, he may orally authorize a peace officer to sign the magistrate‘s name on a duplicate original warrant. A duplicate original search warrant shall be deemed to be a search warrant. It must be returned to the magistrate who authorized the signing of his name on it. The magistratе shall endorse his name and enter the date on the warrant when it is returned to him. Any failure of the magistrate to make such an endorsement and entry does not in itself invalidate the warrant.
(Emphasis added.) In light of today‘s technological advancements, there is absolutely no reason to move backward so as to effectively ignore the efficiency with which these warrants may be procured.
Obtaining a search warrant outside the physical presence of the magistrate has long been permitted. In 1987, we considered the validity of a telephonically obtained search warrant. Sanchez v. State, 103 Nev. 166, 734 P.2d 726 (1987). In Sanchez, the defendant argued that the warrant was invalid because thе affidavit was not taken in the presence of the magistrate as required under
The specific requirement that the oral statement be recorded in the presence of the magistrate is read broadly by this court. The telephone and the ability to arrange conference calls greatly expands the presence of a magistrate. When . . . the magistrate is convinced that the requesting authority is a police officer and knows that the deputy district attorney is recording thе statement, the magistrate‘s presence is extended electronically by telephone. Such a recording, albeit outside the physical presence of the magistrate, is nevertheless “in the presence of the magistrate” for purposes of
NRS 179.045(2) .
Id. at 168-69, 734 P.2d at 728 (footnote omitted). Nevada statutes have authorized such telephonic search warrants since 1981.2 1981 Nev. Stat., ch. 685, § 1, at 1652.
Since Sanchez, telecommunication devices have continued to become more advanced and portable. Faсsimile machines, cellular phones, and portable computers have become commonplace. These technological advancеments have significantly reduced the state‘s procedural burden to expeditiously procure a search warrant. With this burden reduced, the protection afforded to personal
Indeed, when speaking of intrusion into the life of our citizens by recognizing more power in the State with respect to search and seizure, we are reminded of thе eloquent statement of William Pitt, Earl of Chatham, spoken several years before the founding of our nation:
The poorest man may in his cottage bid defiancе to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dаres not cross the threshold of the ruined tenement!
(quoted in Miller v. United States, 357 U.S. 301, 307 (1958)).
Further, we commend to those who may be tempted to criticize judicial vigilance over constitutional protections against unreasonable searches and seizures
that we are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguаrds of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.
Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
In conclusion, we deny rehearing and decline the state‘s invitation to extend the sixty-minute time limit in
SPRINGER, C. J., and SHEARING, J., concur.
ROSE, J., concurring:
On rehearing, the State asks us to reconsider our decision and inter alia, to рrovide flexibility to the one hour time limit set forth in
MAUPIN, J., dissenting:
Despite the elegance with which the majority expresses its point, I believe the potential for logistical difficulties in obtaining search warrants, even in this “electronic age,” merits nonrigidity in the application of the one hour time limit. For example, whether in a remote area of our state, or within the сongested confines of the Las Vegas valley, a police officer in a squad car will inevitably be at a loss to comply with the rule in some instances, with or without a mobile or land-based telephone. Also, I still believe that the court wrongfully decided the underlying issue, to wit: whether the contraband seized from appellant‘s сar should have been suppressed on Fourth Amendment grounds. See California v. Carney, 471 U.S. 386 (1985). Thus, I would fully rehear the matter.