MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

May 7, 2003

 

 

The Committee on Judiciarywas called to order at 7:44 a.m., on Wednesday, May 7, 2003.  Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Bernie Anderson, Chairman

Mr. John Oceguera, Vice Chairman

Mrs. Sharron Angle

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. William Horne

Mr. Garn Mabey

Mr. Harry Mortenson

Ms. Genie Ohrenschall

Mr. Rod Sherer

 

 

GUEST LEGISLATORS PRESENT:

 

Senator Barbara Cegavske, District No. 8, Clark County

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sabina Bye, Committee Secretary

 

 

OTHERS PRESENT:

 

Elizabeth Neighbors, Ph.D., Director, Division of Mental Health and Developmental Services, Nevada Department of Human Resources

Ed Irvin, Deputy Attorney General, Office of the Attorney General, representing Division of Mental Health and Developmental Services

Ben Graham, representing Nevada District Attorneys Association, Las Vegas

Kristin Erickson, Washoe County District Attorney’s Office; and representing the Nevada District Attorneys Association

David Clifton, Chief Deputy District Attorney, Criminal Division, Washoe County

David Jenkins, Detective, Robbery/Homicide, Reno Police Department

Colby Palmer, Detective, Consolidated Narcotics Unit, Washoe County Sheriff’s Office, Reno

Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, Las Vegas

Brett Kandt, Executive Director, Nevada Prosecution Advisory Council for Prosecuting Attorneys, Reno

Juanita Cox, Citizens in Action, People Organized for the Next Generation, Sparks, Nevada

James Jackson, representing Nevada Attorneys for Criminal Justice and the Nevada State Education Association

Jack Bullock, Attorney at Law, Winnemucca, Nevada

Laura Mijanovich, representing the American Civil Liberties Union of Nevada, Reno

Robin Camacho, Director, Advocacy and Communications, American Heart Association, Las Vegas; and the Clark County Indoor Air for Kids Task Force

Helen Foley, representing the Clark County Health District, Las Vegas

Jim Avance, representing the Nevada Retail Gaming Association

Anthony Bandiero, representing the Nevada Petroleum Marketers and Convenience Store Association, Reno

Carolee Ames, Citizen, Las Vegas

Bonnie Parnell, representing the League of Women Voters, Carson City

Van Hefner, representing the Nevada Restaurant Association and the Nevada Hotel and Lodging Association, Las Vegas

Susan Fisher, representing the City of Reno

Mary Lau, Executive Director, Retail Association of Nevada, Carson City

Kendall Stagg, Executive Director, Nevada Tobacco Prevention Coalition, Reno

Jim Nadeau, representing the Washoe County Sheriff’s Office, Reno

Peter Kruger, representing the Nevada Petroleum Marketers and Convenience Store Association, Reno

Elisa Maser, representing the Nevada Tobacco Prevention Coalition, Reno

 

 

Chairman Anderson:

[Roll was called and the Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]

 

I am going to take the bills just a little out of order.  I want to take S.B. 90 first.

 

Senate Bill 90 (1st Reprint):  Authorizes certain governmental entities to share certain records in their possession concerning defendants and offenders. (BDR 14-511)

 

Elizabeth Neighbors, Ph.D., Director, Division of Mental Health and Developmental Services, Nevada Department of Human Resources:

I am Director of Lakes Crossing Center, which is the facility for mentally disordered offenders in the State of Nevada.  I am here with Ed Irvin, who is our Deputy Attorney General, to speak in support of S.B. 90, which is a bill that we have requested to help assist us in providing treatment to the clients whom we serve at Lakes Crossing Center.

 

Essentially the bill allows us to share medical records between the Division of Mental Health and the Department of Corrections for the purposes of treatment and care of the clients at our facility as well as to provide records from the Nevada Department of Corrections to the Division of Mental Health to assist in the transition of individuals who are exiting the prison and need care from the Division of Mental Health.

 

We have requested this because of our experience and difficulties that we have had in expeditiously accessing records when someone is sent to us for treatment to restore competency and for treatment of mental illness.  It is not uncommon for clients who come untreated to our facility to refuse to sign releases.  Additionally, there are difficulties with—even if we do have a release—tracking that release through the system and finding records when we have to pass that hard copy document back and forth.  So this bill would help us greatly to more quickly serve the people that are sent to our care.

 

Between 30 and 60 percent of the population at Lakes Crossing Center at any given time have previously been incarcerated by the Department of Corrections.  This would affect a large portion of our population and allow us to have prior treatment records so that we don’t have to duplicate services that have already been provided and perform tests where the information is already available through the Department of Corrections.  The reverse would also be true when individuals leave the prison and are seeking treatment at the Division of Mental Health.  Many of these tests are quite costly.  It is also important to have that prior history to understand the progress of the individual as he moves through the criminal justice system and the mental health system.

 

Finally, I might comment that there are some state statutes that already require the sharing of information in this matter for certain types of offenders, particularly those individuals who have committed sexually related crimes.  We are already allowed to do that; this would just simply extend it to all of the people we serve who have previously been in the Department of Corrections.

 

We would be happy to answer any questions.

 

Chairman Anderson:

The Chair has just one question relevant to the medical and mental health records.  Are these and the evaluation of instruments all within the Department of Corrections; are they all internal documents currently?  Are you going to be sharing them outside the immediate correctional system, or initially with the people who come to Lakes Crossing Center?

 

Dr. Elizabeth Neighbors:

That is correct.  We would observe all of the usual regulations in regards to medical records.  We do not rerelease to other agencies without consent.  This would only allow us to share between those two entities.  We would have to have another written release from the individual to further share the records.

 

Chairman Anderson:

After a person is released by Parole and Probation into the community and is subsequently rearrested, would this mean that the District Attorney would be able to have unfettered access to the original medical documents that they might not currently have access to?

Dr. Elizabeth Neighbors:

If I understand you correctly, if a person were rearrested it starts a new case.  When he is in our facility, if he has charges pending and his evaluation in regard to competency is allowed to the court, to the District Attorney, and to the Public Defender . . . perhaps it would be better for me to let Mr. Irvin, our legal expert, respond to this.

 

Ed Irvin, Deputy Attorney General, Office of the Attorney General, representing the Division of Mental Health and Development Services:

[Introduced himself.]  In reality, I think it would be an unusual situation where those records would make it to Parole and Probation.  If the records did make it to Parole and Probation into a report, then they would be accessible under certain circumstances.  However, the evaluations that come from Lakes Crossing Center would be a part of a criminal prosecution.  Those evaluations would not necessarily contain the information unless they were pertinent.  If the prosecution or the defense wanted those records, they could request an order from a court and those records could be released, which would be compliant with all federal and state statutes.

 

Assemblyman Horne:

I have a problem with the defendants who are there pending charges.  It seems like while they have not been convicted of any crimes, we are going to usurp their rights of privacy to their medical records.  If we take your rationale even further, if they have no criminal record and have never been in there, but are incarcerated—now they are at your facility and we seek, without their consent, their private records somewhere.  Doesn’t counsel represent these individuals?  Even if we question their competency to even give consent, that is where their attorneys would come in.  It seems like we are trying to circumvent that entire process.

 

Dr. Elizabeth Neighbors:

First of all, in our facility competency only refers to their competency to stand trial.  They have not relinquished their right to give consent to any other legal situations that they might encounter while they are in our facility.  It only has to do with their competency to stand trial.  The bill that we are requesting does not apply to anyone who has no prior criminal record, it only applies to individuals who would have already been convicted of a crime and served time in the Department of Corrections; it would not extend at all to any private records that were not available to us without the individual’s consent.  Mr. Irvin may have something to add to that.

Ed Irvin:

Under hospital information, portability, and privacy federal laws, privacy does attach to the individual.  It does flow for treatment purposes.  Currently, under NRS 433.332, the information actually has to be passed between Division facilities and it is a prospect of treatment.  In this situation, Dr. Neighbors did reference that it would not be all information; it would be just the information at the Department of Corrections.  The purpose of that would also be for treatment.  Basically, in the whole scheme of privacy and medical records, it would be consistent.  There is an exception that allows for, under certain circumstances, this type of transfer of information.  There, theoretically, is a possibility in which the specific exception would not apply in a hypothetical situation that could occur.  But, it is only for treatment purposes and so that is why we feel comfortable that those people’s privacy would be protected.

 

Chairman Anderson:

Would the court still require a court order upon request of the administration or its designee for other kinds of records that would be greater than this?

 

Ed Irvin:

Yes.

 

Chairman Anderson:

Are there other questions from members of the Committee?  Does anybody else wish to testify on S.B. 90?  Is there anyone in opposition to S.B. 90?  [The Chair asked Mr. Jackson if he wanted to go on record; Mr. Jackson indicated no.]  I will close the hearing on S.B. 90.

 

The Chair will entertain a motion.

 

AssemblyMAN Carpenter moved to Do Pass S.B. 90.

 

Assemblyman Conklin seconded the motion.

 

Is there any discussion on the Carpenter/Conklin motion?

 

Assemblyman Horne:

I am still uncomfortable with this and just made a quick read of the statute, NRS 433.332.  This deals with the transfer of patients in a Division facility and we are not talking necessarily about transferring.  I understand if a person is already incarcerated and the like and he is going from one facility to another and those medical records are transferred in that context.  If we are talking about someone who has not been—is only charged with a crime—but had once before been a part of a facility, I think it is different.  I don’t think that he or she should have to relinquish that level of privacy or the ability to be able to consent or deny access solely because there is a charge pending, especially if he has counsel in this proceeding that could do that very thing.

 

I am not comfortable with it and I will be voting no.

 

Chairman Anderson:

The Chair is of the opinion that what we are talking about here is somebody who is about to be reincarcerated in a facility, such as Lakes Crossing Center, who has previously been in the state’s mental health system where we have already performed certain basic tests.  We don’t want him to have to go through the cost of retesting again at the state’s expense to make a determination, when we already have spent that dollar.  I know that you are concerned and I, in part, share a certain level of concern, but I think for the efficiency of the system, if we already have the records in there we might be okay.

 

Assemblyman Carpenter:

I was just going to say that from my reading of it, it seems to me like it makes it more efficient and speedier to get the proper treatment for these people if they can share the records.  For any other situation, I think they have to go through the court; I feel comfortable with it.  I think that it is a measure that in reality will help the inmates that are in need of treatment.

 

Chairman Anderson:

The Chair will place the question.  [The Chair called for a roll call vote.]

 

The motion carried With ASSEMBLYMAN Horne voting no. (Ms. Buckley and Ms. Ohrenschall were absent for the vote.)

 

The Chair counts 12 in the affirmative, 1 in the negative, 2 absent.  With S.B. 90 having passed 12-1, I will assign it to Mr. Brown.

 

The vast majority of you have signed in for S.B. 50 and I want to make sure that all of you get a chance to be heard, so even if we go to it right away, I know that I won’t be able to hear all of you.  So, I will try to get the two smaller bills out of the way.

 

Senate Bill 316 pertains to issuance of search warrants.

 

Senate Bill 316 (1st Reprint):  Revises provisions pertaining to issuance of search warrants. (BDR 14-1278)

Ben Graham, representing Nevada District Attorneys Association:

It is a privilege to be back before you.  Senate Bill 316 finds us here because apparently in 1997 I didn’t do a good enough job illustrating and spelling out what we had intended as the prosecution, the body, and the Legislature intended in 1997.

 

We have to have affidavits for search warrants, which demonstrate that a crime has been committed and that evidence of a crime exists in a particular place and a particular time.  There was an issue back then where premature disclosure of the affidavit, which actually contained the names and addresses, or at least the names and substance of the people that the judge relied upon, were being revealed to, for lack of a better term, “the bad guy.”  We demonstrated back in 1997 with a video showing a murder scene where the bad guys had taken advantage of this disclosure and killed the witnesses against them.

 

We are here today seeking assistance to remedy a Nevada Supreme Court decision, which we feel misinterpreted what we intended.  We, meaning not only the state but also the Committee back in 1997.  The thing I want to point out is that at any time that the warrant really becomes relevant, one can challenge the warrant.  He can later sue civilly on the warrant.  All parties will have a copy of that warrant and the affidavit.  But it would not be prematurely revealed thereby jeopardizing an ongoing investigation; jeopardizing lives of innocent people.

 

We have Kristin Erickson here who will come up in a moment with some folks from the Washoe County District Attorney’s Office and the law enforcement community.  We appreciate your patience and we will make it as brief as we can and try to do it right this time.

 

Chairman Anderson:

My concern is relative to the question of due process in terms of the warrant.  I presume that Ms. Erickson and the District Attorney will explain all of this to us. 

 

Kristin Erickson, Washoe County District Attorney’s Office; and representing the Nevada District Attorneys Association:

[Introduced herself and submitted Exhibit C.]  I brought with me today the experts on search warrants to answer any questions you may have of them.  To my left is Detective David Jenkins of the Reno Police Department, Homicide Division; next to Detective Jenkins is Mr. David Clifton, Chief Deputy District Attorney in Washoe County; and next to Mr. Clifton is another detective who works with the Consolidated Narcotics Unit and does a lot of undercover work.  We wanted to voice our support for S.B. 316 and with that I will turn it over to Mr. Clifton.

 

David Clifton, Chief Deputy District Attorney, Criminal Division, Washoe County:

[Introduced himself.]  I have been directly involved in prosecution for almost two decades.  I am also extensively involved in training all aspects of search and seizure law to police, to prosecutors, and even to judges.  I am also here on behalf of the Nevada District Attorneys Association, and I am here to urge you to pass S.B. 316.

 

The first question I would like to pose to this Committee in the way of addressing my comment, and before I get into the background a little bit about why we so urgently need this, is what exactly is the legislative option if the Nevada Supreme Court were to interpret a legislative enactment differently than you yourselves intended?  In our opinion this actually occurred in 1997 and then again on December 19, 2002, with the Nevada Supreme Court’s ruling in State v. Allen.  I suggest to you that, based upon the separation of powers doctrine, the checks and balances approach, the only option is to review that case and decide if that truly was your legislative intent and if that case has reasoning that you believe is what you intended behind the passage of the legislative amendment in 1997.

 

On December 19, 2002, the Nevada Supreme Court told us that every one of our search warrants is illegal.  The Supreme Court’s recent interpretation of NRS 179.045 in 1997, which Mr. Graham has spoken to you about—hopefully you will all have the opportunity to read the legislative history behind Assembly Bill 458 of the Sixty-ninth Legislative Session, came as a complete and shocking surprise.  We learned that the Supreme Court indicated that evidence that is seized against their interpretation for past, present, and future cases will be suppressed and cannot be used in the prosecution of the crimes.

 

Important considerations that the court has interpreted from the 1997 amendments make our past, present, and future search warrants illegal.  If we don’t do it this way in cases that we have already not done that way, could cause, and is causing, a devastating effect within the state.  Major cases are being dismissed, as we speak.  Major cases are being plea-bargained to gather as much as we can possibly salvage out of the cases.  This will continue for years to come because of this extreme interpretation, in our opinion wrongful interpretation, of what you intended in 1997.

 

Senate Bill 316, allows us to revisit the legislative intent from 1997.  In the meantime, defense attorneys are having a field day.  I don’t know if you know by name the case State v. Lyle Montgomery.  He was the man who, in Salt Lake City, was seen on videotape abandoning a three-year-old in a ShopKo department store.  He was also believed to have murdered the mother of that child.  If it wasn’t for his recent suicide three weeks ago, we would have been in what we now deem or call “an Allen hearing” based on the State v. Allen case.  We would have been in that hearing the very next day after he committed suicide.  I suggest to you that you would have seen the devastating effect of this Nevada Supreme Court case on CNN news on or about April 15 or April 16, 2003, when the district court may have made a ruling against us based upon the judge’s hands being tied because of the State v. Allen ruling.  If that evidence was seized during a search warrant that I prepared for the judge’s signature, was suppressed, and that search warrant was deemed illegal under the State v. Allen interpretation, there was a very good chance that Lyle Montgomery would have gone free, even if we could have possibly proven that he murdered Ms. Corpuz, the mother of the child.

 

[David Clifton continued.]  In addition, the State v. Allen case dramatically changed the way we now have to obtain, prepare, and execute search warrants.  These changes, as far as I know, are unique to Nevada.  They are clearly not required by any state or constitutional provision including Article 1, Section 18, of The Constitution of the State of Nevada and the Fourth Amendment of The United States Constitution.  They are clearly not required by federal court—many state court cases have ruled on this—that none of these changes made by the Nevada Supreme Court’s interpretation of this statute are or have ever been required since the constitutions were enacted.

 

I believe this is unique to Nevada.  I don’t believe, or at least in our opinion, that the changes made by the Nevada Supreme Court can in any way said to be required by your legislative amendment in 1997, in Assembly Bill 458 of the Sixty-ninth Legislative Session, or in any way by NRS 179.045 itself.  As we hope to show you this morning, these interpretations, these changes to your statute, are unreasonable, unwarranted, unnecessary, and unproductive for everyone, not just law enforcement.

 

In State v. Allen, the court ruled for the very first time that police must include in the warrant the statement of probable cause, in other words, the underlying facts.  Sometimes they are very complex and very complicated and may be multiple pages—as long as one wants to make it—concise or detailed as it may be depending on the case.  That specific, concise, detailed statement has to be in the search warrant itself, the document that we take to the scene when we conduct the search and hand it to the target.  In other words, for the person that most likely owns the property or is in possession of the property, the court has ruled that the probable cause statement, that specific statement, must be contained in the warrant.

 

[David Clifton continued.]  The Fourth Amendment and Article 1, Section 18, merely state that the warrant must be supported by probable cause.  All cases I am aware of, other than in Nevada, state that the probable cause shall be contained in an affidavit.  I know of no other cases, other than Nevada and the State v. Allen decision that say that the probable cause or that affidavit has to be in the search warrant itself.  The statement of probable cause, the underlying facts, should never have to be in the judicial order, as long as the order, the warrant, is supported by that probable cause.  That has always been the state of the law in Nevada, as we knew it; that has always been our practice until December 19, 2002, where everything broke loose.

 

The court said that this was implied, by your amendment, in subsection 5(b) where the Legislature said—and as Mr. Graham has explained to you he felt that maybe we did not make it clear enough—the words “incorporate by reference” the “oral statement” or the “statement of probable cause” into the warrant.  The Nevada Supreme Court has interpreted the phrase “incorporate by reference” to mean “has to be attached.”  That the “probable cause statement” or “oral statement of probable cause” has to be either attached to the warrant or specifically included in the face of the warrant.  The court said that was implicit from subsection 5(b), the amendment in 1997.

 

I suggest to you that it not only is not implicit, it is also not clear on its face; it is also wrong.  The court first says that the statute does not need any review of legislative history.  The statutory change for the court to interpret does not require any look into your intent from 1997 because it is clear on its face what incorporate by reference means.  Yet, two paragraphs later in the decision the court says it is implicit from the words “incorporate by reference.”  What they originally said was clear on its face is now all of a sudden implicit.  I suggest to you, members of this Committee, that it is not, and you can look at the exact words in subsection 5(b) and see that it not only is not clear on its face, it not only is not implicit, but the meaning is the exact opposite; it has to be.

 

How can you incorporate by reference an oral statement?  Read subsection 2 of NRS 179.045 and you will see the definition of an oral statement.  We can take search warrants over the telephone—that is the progress that this statute has gone through in the last 25 years.  The Legislature allowed telephone search warrants over two decades ago.  We have been doing it that way for two decades.  We take a search warrant affidavit, the statement of probable cause by the officer, over the phone.  How in the world can we attach that to a search warrant?  How in the world can we write that down on the face of a search warrant in the time period necessary to get a search warrant?  We are not taking days.

 

[David Clifton continued.]  As a matter of fact, the Supreme Court chastised the Clark County District Attorney’s Office.  They said it is not reasonable to take six hours to get a search warrant.  I will tell you now, members of this Committee, we are not able to get search warrants in much less than six hours in any way possible under this interpretation where we have to physically write out that probable cause statement in every search warrant and put it on the search warrant or attach it to the search warrant.

 

I have provided an exhibit (Exhibit C), which I hope you all have, that shows an actual case we just did two months ago, post State v. Allen, a Chicago murder case from two years ago.  It was an ongoing investigation that dealt with a dozen or more judicial authorizations such as subpoenas, search warrants, wire taps, things like that.  If Chicago had the same ruling Nevada has now, they would have had to provide all that information to the target when they did those previous dozen or so judicial authorized searches and seizures.  If that were the case, their ongoing investigation for the last two years would have been substantially compromised.  You can see that it never would have worked.  Even the affidavit I gave you was not given to the target at the time any of those searches were conducted.  Our Nevada Supreme Court says even if you try to seal the affidavit—read the State v. Allen case closely and you will see that the court clearly says, “Even if you try to seal the affidavit, Mr. Prosecutor, Mr. Law Enforcement Officer, you still have to have that statement of probable cause in the warrant itself.”

 

Chairman Anderson:

Mr. Clifton, we are not a jury.  I think we are getting the idea of where you want us to be.  I think that we need to make sure we are all comfortable with what you are trying to accomplish.  I appreciate the nuances of where you are trying to go and trying to prove to us; this is a serious issue; I think you’ve got us there.

 

I think we need to see what the practical application of this is going to be in terms of how do we make sure that the normal process of due process is being followed:

 

·        The judge is told that there is real probable cause

 

·        A search warrant has been properly issued

 

·        The warrant is properly served

 

·        The person is arrested

 

If it is done telephonically that the judge then has reaffirmed that you can show by the proof of the evidence, and within a certain amount of time, that you had the written statement even though for convenience of service of the judge—not for your convenience, but for the judge’s convenience—you did this telephonically.  This is for the judge’s convenience; it is not supposed to be for your convenience.  Is that right?

 

David Clifton:

That is correct.

 

Chairman Anderson:

So you are doing this telephonically for the convenience of the court.

 

David Clifton:

It could be for law enforcement and the court; it is the whole criminal justice system.

 

Chairman Anderson:

It is a time frame thing; you want to try to get your arrest taken care of as quickly as possible and get the warrant served.  We want to make sure that it is all done and that the affidavit comes back so the judge has that all in a nice, neat, tight package.  So everybody will be happy; is that right?

 

David Clifton:

Yes.

 

Chairman Anderson:

That has been jeopardized by this recent Supreme Court ruling that says that the affidavit itself has to include all these specific things, which was not our intent.  Our intent was that a warrant followed the traditional guidelines.  Are there questions from the Committee?

 

David Clifton:

Mr. Chairman, with all due respect, the affidavit still has to require all these things.  In other words, the probable cause statement of facts.

 

Chairman Anderson:

To the judge, but not to . . .

 

David Clifton:

Not in the search warrant.  I can tell you that the United States Supreme Court, as well as the Nevada Supreme Court and all other state supreme courts, have indicated that the purpose behind the Fourth Amendment, the real purpose here, is to promote and encourage the seeking of warrants.  This case actually does the opposite.  It actually promotes law enforcement to look for an exception—get around the warrant requirements somehow because we don’t have time to write it all out and put it in the search warrant.  We have telephonics, which is supposed to increase the viability of search warrants—to do them in a minimal amount of time, now it is the opposite approach.  We are doing it telephonically but we still have to write it all out.

 

Assemblyman Horne:

I have two questions.  First, regarding the telephonic affidavits, I understand how you say you can’t place that, because it is oral, on the warrant itself, but isn’t it sometimes placed in writing?  How do I, as a defense attorney, make a challenge to that probable cause if it is just oral?  I can’t call the judge up to the stand to examine him on what his recollection was on that oral statement.

 

David Clifton:

The legal requirements are still the same, that the probable cause affidavit must be filed with the court within ten days.  Our bill does nothing to change that.  Any legal attack, any traverse by a defense attorney has to be filed in court.  He has plenty of time to do that in the procedures in the criminal justice system in the laws of evidence.

 

The rules of evidence provide that this recording of the oral affidavit or the court reporter’s transcription of it must be prepared—it is not going to be prepared immediately obviously in time for us to get it in the warrant—but it must be prepared within ten days and filed with the court.  Although the target won’t have that specific statement of probable cause immediately at the time we hand it to him in his house, which would not be a good idea anyway for various reasons, even though that does not occur, we will be filing it with the court in a very short period of time not to exceed in any case more than ten days, unless we can show clear, good cause for that delay.  A defense attorney would always have the opportunity to have it.

 

Moreover, the police will always hand the target the search warrant even if it is not a ten‑page probable cause document, like the affidavit.  It still very specifically tells the person, the target, why the police are there, what they are searching for, what the crime is, who the person is, all of these details.  It tells the target that the Fourth Amendment has been complied with and that proof has been made by affidavit under oath.  All of these things are in the search warrant; it is just the extensive probable cause affidavit that should never be required to be in that search warrant and can be obtained by the defense attorney within a matter of days from the court.

 

Kristin Erickson:

If I may, I believe I can answer one short question for Mr. Horne.  The telephonic search warrant is actually tape-recorded and it is transcribed within several days of the actual tape recording, which makes the transcript available to the defense attorney because it is filed with the court several days later.  The actual tape recording of the telephone conversation is also available for inspection by the defense.

 

Assemblyman Horne:

Regarding the ten days before that probable cause statement is filed or the defense attorney can receive it—I understand the dangers of leaving it at the scene of the search, but as a defendant I would want that statement as soon as possible.  I don’t know why the defense attorney can’t get that probable cause statement earlier than the ten days.  I am looking for that middle ground.  While you don’t have to leave it at the scene for when you elicit a search, could that defense attorney or the defendant receive it earlier?  As an attorney I would want to start preparing and to seeing whether it was a valid warrant to begin with instead of waiting a week and a half.

 

David Clifton:

Absolutely.  In northern Nevada, and I would imagine throughout the state, any defense attorney that called me up and asked for that probable cause statement as soon as it was prepared or written down—which was before the State v. Allen decision and now we have to write it out—I would have prepared that for him as soon as possible and get it to him right away.  It is no different than when someone is arrested and the complaint is handed to him when he gets to court.  The law requires 72 judicial hours, which can be as much as 5 days; you may be getting the complaint handed to you in the courtroom.  That is about the same time period that you probably would be having access to the transcript being prepared on a search warrant.  So arrest warrants and search warrants work very much the same.

 

Chairman Anderson:

To follow up on Mr. Horne’s statement, if one is going to appear in court within 72 hours, then would it not be within 72 hours that the initial information is also available to the prosecution?

 

David Clifton:

The statutes in the Legislature actually give us a little more time on issues like a search warrant with a probable cause statement than the person getting in front of a magistrate within 72 hours, which sometimes can be as much as 6 or 7 days if it is over a weekend or Thanksgiving vacation.  But it is not an extensive amount of time; it is just up to 10 days.  As I have explained to Assemblyman Horne, we would be happy to provide it earlier if it can be transcribed earlier.  If you read subsection 2 of NRS 179.045, it says that the court reporter actually has to create a transcription of it, which has to be certified.  In other words, it has to be sent to the parties to be signed off and certified as accurate.  This takes a little time.

 

Chairman Anderson:

I am reading at line 38, page 2, of the bill; it says not later than 10 days after the execution.  So the presumption “no later than” gives that latitude as soon as it is prepared, but we may need to make a stronger statement there and I would ask the bill drafter to look at that to make it “as soon as it has been prepared,” not “later than,” if we are to move on the bill.

 

Assemblyman Brown:

I just pulled up the 1997, Assembly Bill 458 of the Sixty-ninth Legislative Session and looked at the markup.  A cursory look seems to indicate or support your interpretation of that.  That leads me to question the Supreme Court’s analysis and I am wondering first of all whether you have a copy of that case.  Second, I would imagine they go into an analysis or definition of “incorporation by reference.”  It appears that originally it was required to state the grounds or probable cause within the warrant itself.  The amendment by Assembly Bill 458 of the Sixty-ninth Legislative Session added, “’or’ incorporate by reference to affidavit oral statement upon which it is based.”  To me, we were creating a second condition.  Is there a standard definition for “incorporate by reference”?  Does that mean that the document is attached, or does “incorporation by reference” mean it can be to a document that is in a remote place?  Does the court go into that analysis?

 

David Clifton:

That is an excellent question; it gets right to the heart of the issue.  To answer your question, yes, I do have a copy of the case (Exhibit C).  You can have a clean copy or you can have it with all my writing on it.  They do address the definition of “incorporate by reference.”  I submit to you, it makes no sense.  It says right in the holding of this case “incorporate by reference” means “attach thereto.”  So they are saying that you have to attach the document.  Subsection 5(b) makes absolutely no sense when looked at in connection with subsection 2, defining oral statement.  How can one attach an oral statement given over the phone?  There is no way we are going to have a transcript of that within the time period we execute that search warrant, which must be quickly and forthwith.  So they define “incorporate by reference” with an interpretation I had never conceived in any way under the Fourth Amendment or under this statute.  I think that is what Mr. Graham is referring to—if that is the interpretation they are going to give and we did not contemplate it, then maybe we were at fault, maybe we weren’t careful enough.  But it makes no sense in subsection 5.  I don’t know why they gave it that interpretation.

 

The answer to your other question is, yes, you certainly can incorporate by reference by doing just that.  Incorporate the affidavit by reference, in other words, refer to it.  There is no doubt it is in some other place.  It isn’t prepared yet—it is telephonic.  That’s how we do almost all of ours now in the last 20 years.  It will be prepared pursuant to statute by the court reporter that transcribes it, or by our office if it is on a recorded tape.  So we know where it is; it is stated in the search warrant itself.  The search warrant refers to the exact document, the date, who the affiant was; that is what is required by the Fourth Amendment; that is what is required by NRS 179.045 before State v. Allen.

 

The only other thing I want to add, Assemblyman Brown, is the court refused to accept any distinction between grounds for the search warrant, which is your legal grounds—I can give you a definition of that if you would like—versus your probable cause for the search warrant; that is the statement of facts.  The legal grounds is something much more concise; it does not require going into the actual facts of the probable cause.  The court refused to even acknowledge that both of those words were in that statute.  All they talked about was the probable cause for the affidavit, the statement of facts, and the lengthy detailed statement.  They never addressed the legal grounds, which can be contained in the search warrant, in lieu of the probable cause.  So even though in 1997 we added the clause “incorporate by reference,” even before we did that, it was never a requirement, before or after 1997, to ever put in the probable cause statement, the detailed statement, in the warrant itself.

 

Assemblyman Brown:

Thank you.  May I get a copy of that, please?

 

Chairman Anderson:

I think we have a copy (Exhibit C) of the case that was distributed to us.  It is unmarked.  It has already been handed out.  Gentlemen, let me indicate to you, and I made a serious error here and I need to explain this to the Committee also, there is an attorney who is driving in from Humboldt County who wanted to be here for this.  I had indicated to him that it would not be the first thing on the agenda this morning and I had forgotten this was that particular bill that he had made reference to.  So he is still in transit trying to get here and that causes me distress because I know he is missing out on part of this discussion and he is going to need to be part of it and will need to hear the bill in its entirety.  So, Mr. Carpenter, let me ask you for your question and then I will take the additional testimony from the two officers who may wish to give their account of their concerns, and then I am going to leave this open and move to S.B. 50 because I would like to get S.B. 50 out of the way.

 

Assemblyman Carpenter:

I am wondering why on page 2, line 14, that you struck that and then you put in its place “the criminal offenses alleged to have been committed.”  Why did you change that?

 

David Clifton:

That’s another very good question.  For the very explicit reason that instead of stating grounds or probable cause, which must be contained in the search warrant now, we make it real clear for the Nevada Supreme Court to understand the interpretation and the legislative intent behind this statute now.  So we set forth the grounds for the issuance of the search warrant.  We set forth that it must actually have the name of the person whose affidavit has been taken—the criminal offense alleged, the person and places to be searched, and the property to be seized.  These are the lawful requirements; these are the legal grounds that are required to get a search warrant.  That is the distinction between grounds and probable cause, the statement of probable cause, which is normally in an affidavit.  So we laid out in detail what the Legislature intended all along and did not mean to change in 1997.

 

Assemblyman Carpenter:

How are you going to know all these things until you have been able to find more evidence with the search warrant?  It seems to me that is why you have the search warrant.  Does that limit you then when you have to put this in the warrant, the criminal offenses, or are you just going to use a great big laundry list?

 

David Clifton:

No.  We actually have all this information before we apply for the search warrant.  A search warrant is a judicial means of balancing; a neutral and detached magistrate balances the interest of the government versus the intrusion into any privacy interest of the citizen.  We already have this information given to the judicial magistrate when we apply for that search warrant.  We are willing to put in those grounds and we will always have those grounds because, in our opinion, they are required by the Fourth Amendment, if not by this statute.  So we will have those grounds in there.

 

Detective Jenkins will address that very well.  In addition to the exhibit I have given you—if you thumb through to page 4 or 5—you will see an actual search warrant that we have done since State v. Allen.  It is very much the same except we have had to add a few provisions to “incorporate by reference” and “attach hereto” the affidavit to the warrant.  Detective Jenkins will address the practicality of what we actually do when we fill out the form.  We took that form from the statutes and he will address how we fill it out and all that information that the judicial magistrate has, as well as the target of the search will have.  There is no need to go further and require them to have the probable cause statement itself.  But, they will have all these grounds—the target and the judicial magistrate—will have all of that information.  It is time‑consuming, but we will always have it before we go to that judge.

 

David Jenkins, Detective, Robbery/Homicide, Reno Police Department:

[Introduced himself.]  I have been a police officer now for over 27 years.  I come before you this morning as a representative of the Reno Police Department asking for your support of Senate Bill 316, the proposed amendments to NRS 179.045, regarding the issuance of search warrants.  During the course of my career I have obtained several hundred search warrants and recently I have obtained quite a few in Washoe County and Carson City under the new guidelines imposed by the Nevada Supreme Court in its State v. Allen decision.

 

I want you to know up front that as a police officer I am firmly committed to uphold my sworn duties to protect and defend the constitutions of the United States and the state of Nevada.  I absolutely believe that citizens that we serve have an absolute right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

 

I have brought with me today an example of a search warrant (Exhibit C), the document that would be left with an individual or at a location where a search was contained.  I am aware and quite frankly take umbrage with the suggestions that the police would show up with a search warrant and leave a target with little or no explanation of their presence or why their property was seized or taken.  I want to assure you, Mr. Chairman and members of the Committee, that nothing could be further from the truth.

 

I have available for your inspection an example (Exhibit C) of what is actually left during the course of the service of a search warrant, and I want to point out to you that it directs with specificity an individual court where the search warrant was issued.  It directs with specificity an individual police officer or member of the community that swore out an affidavit in support of the search warrant and their place of employment.  It identifies with specificity an individual crime alleged and a reference to a specific location in the Nevada Revised Statutes where that crime is contained.  It alleges, if identified, a specific individual believed to be responsible for that criminal act.  It identifies with specificity the items to be searched for and it identifies a specific location to be searched.  It also identifies with specific language the individual magistrate who issued that warrant.

 

[Det. David Jenkins continued.]  As you know, the primary purpose of a search warrant is to provide, whenever reasonable, the interjection of a neutral and detached magistrate into a criminal investigation before the police initiate a search and/or seizure of a citizen or a citizen’s property.  To that end a practice supported by law that encourages and enables police officers to apply more often, and under a greater number of circumstances, to a magistrate is better than a practice, as now exists, that will result in fewer search warrants being sought and, as a consequence, far less judicial review of police investigations as a result of procedural cumbersomeness and time constraints.

 

To illustrate my point, let me give you a few real life examples.  On January 4, 2002, I was involved in a murder investigation.  The investigation was in its very early stages.  The suspect in the crime had not yet been fully identified, but we had a good idea of his location.  A surveillance was conducted of a motel room, where he was believed to be hiding, and a surveillance was initiated and shortly thereafter the suspect left the room and was attempting to flee the jurisdiction.  This happened at about 11:40 a.m.  We were very fortunate in that case; the events were unfolding during the business day and I happened by coincidence to have been in the company of a Deputy District Attorney when I learned of the information. 

 

Under those circumstances I was able to immediately have an audience granted before the Honorable Judge Edward Dannan of the Reno Justice Court.  I was able under those circumstances by way of tape-recorded oral statements, to provide the court with a very detailed, and, I believe, a very complete description of the probable cause, which had been established in support of the issuance of that search warrant.  Under those exceptional circumstances, I was issued a search warrant in under 15 minutes.

 

I want to contrast those circumstances with what would happen today.  Even if the magistrate were immediately available, the probable cause for the proposed warrant would have to be reduced to writing.  Now, as all of you can see, I can talk far faster than I can write.  It would then be presented before a magistrate in the form of a written affidavit.  If the magistrate had any questions, and we want to encourage the magistrate to pose questions to the probable cause, the process would grind to a halt.  We would reduce the magistrate’s questions to written form and our answers to written form and then resubmit that information in the form of a written affidavit to the court.  Only then could a finding be made on probable cause.  Only then could a warrant be issued.  Under that practice, even under the most optimal circumstances, I cannot foresee a possibility of a search warrant being issued in less than four hours.

 

[Det. David Jenkins continued.]  I am sure that you are aware that under NRS 171.123, the stop and detain law, there is a specific limitation on the time that police officers may detain a suspect without making an arrest.  In no event can that take longer than 60 minutes, by statute.  Under those circumstances, the seizure of evidence from now convicted murder defendant, Orlando Lopez, would either have not been made at all or it would have been made without a search warrant, without judicial approval, and under exigent circumstances because the police could not have possibly obtained a search warrant no matter how hard they tried.

 

Let me describe what took place as recently as March 31, 2003, in another unrelated murder investigation.  I was called to the scene of an apparent murder, which had just occurred in a private residence located in a middle-class neighborhood in northwest Reno.  It was in the early evening when the murder was discovered and as a result the judges and district attorneys were not in their offices; they were in their homes.  This is frequently the case because criminals do not necessarily do their work Monday through Friday between 8:00 and 5:00.  Now, effectively prohibited from making only a tape-recorded oral statement of probable cause to the magistrate, a task which normally could be done in less than an hour even after normal business hours, it took me four and a half hours to reduce that probable cause to writing and then read it verbatim over the telephone to the Honorable Judge Salcedo of the Reno Justice Court.

 

I submit to you, Mr. Chairman and members of the Committee, that that three-and-a-half-hour delay, and the police having access to the murder scene and to the murder victim, were wholly unacceptable to the victim’s family and his loved ones.  I submit to you that that same three-and-a-half-hour delay in determining that the suspect had also, after committing the murder, armed himself with a gun stolen from the victim’s home was unacceptable to the officers who were actively hunting and looking for him.

 

Secondly, I have another concern that has not yet been expressed.  This concern arises specifically out of my experience investigating gang-related murders.  As the practice evolves since the State v. Allen decision, the police in Washoe County are required to immediately attach the written affidavit in support of the search warrant and to leave that document at the location to be searched.  Mr. Chairman, I see little—in fact, let me correct that, I see no legitimate basis whatsoever for leaving an affidavit specifically listing the names of the children witnesses to a gang murder at the scene of that murder.

 

[Det. David Jenkins continued.]  Don’t get me wrong; I don’t quarrel with the proposition that a person has an absolute right to face his accusers in a court of law, but what you are asking is that we, by listing the names of those children witnesses and leaving it at the scene of a murder, is tantamount to pouring gasoline on an already burning fire.  The purpose of naming witnesses in an affidavit ought to be for the protection of an accused criminal’s right to have judicial review before authorizing a search.  It should never be to facilitate witness intimidation or worse, murder.

 

It is my humble opinion that the proposed amendments to NRS 179.045 will never impinge on the rights of an innocent person or an accused criminal.  I am not suggesting that an accused be denied or prevented in any way from having the information necessary to assist in his or her defense, this amendment specifically requires that the affidavit be filed with the court in a timely basis.  Rather, I believe the net result from the passage of this amendment would be that police officers would obtain more search warrants under a greater number of circumstances and that in the end, there would be greater judicial review of police investigations, not less.

 

Under the proposed amendments to NRS 179.045 under Senate Bill 316, I believe that all of our constitutional protections under the Fourth Amendment would be strengthened, not weakened.  Thank you.

 

Colby Palmer, Detective, Consolidated Narcotics Unit, Washoe County Sheriff’s Office:

[Introduced himself.]  I am actually assigned from the Reno Police Department to the Consolidated Narcotics Unit.  This is my first time speaking before the Assembly.  I appreciate the opportunity to talk to you today about S.B. 316 and our concerns based from the Washoe County Consolidated Narcotics Unit specifically.  Detective Jenkins went into great detail on the issues of timeliness.  He is a great speaker so I won’t try to overdo what he has already explained to you as being important to the members of the law enforcement community.  One thing I would like to touch on first regarding the timeliness issue is how a narcotics investigation is actually started and finishes.  Very briefly I will describe that and what our concern is with supporting S.B. 316.

 

When a narcotics investigation begins, it starts off with informants, or detectives, actually buying, purchasing controlled substances from suspects in Washoe County in the state of Nevada.  Once those narcotics purchases are made, the investigation continues and usually ends up with a result of obtaining a search warrant for a residence somewhere within Washoe County specifically to look for more narcotics inside the residence, controlled “buy” money that we use during those operations, and any other evidence of crimes based upon our investigation during those days, weeks, or months that it takes to conclude that investigation.

 

[Det. Colby Palmer continued.]  The problem that we have with the State v. Allen decision is that once that affidavit is left on the scene, the detective that is named in that affidavit, or the confidential informant’s number that is listed in that affidavit, is immediately compromised.  I can tell you that currently I am working two investigations myself where I am personally purchasing methamphetamine from two different sources that happen to know each other and both live in Washoe County.  If my name is left on that court document that is left at the scene, it is immediately recognizable not only to just the defendant who is arrested, but everyone else who has access to his house or his apartment.  In the drug world, these people all have access to each other’s property; they routinely burglarize each other’s residences after we serve these search warrants and it becomes an immediate risk to both the confidential informant who is listed in the affidavit, as well as the detective who might be listed in that investigation.

 

Also with the timeliness issue, it comes down to what Detective Jenkins alluded to during the “Terry stop” discussion.  Most of our investigations start from the field.  We are a unit that works late hours into the night, sometimes 2:00 or 3:00 in the morning.  If we are doing surveillance on a residence and we want to stop anyone coming and going from that residence in the process of obtaining a search warrant, which we feel that we have the right to do and also to assist the people inside the residence, we don’t want to arrest anybody that is not committing any of these crimes or who is not involved in the investigation.  We do want to allow them to leave after the 60 minutes is up under the Terry stop rule.

 

However, sometimes we are not able to do that because while we are attempting to get the search warrant, which may take four to five hours, we cannot physically release that person and we hold them under exigent circumstances.  The exigent circumstances are the fact that after this person has been interviewed, he can very easily leave the scene because he cannot be tied into the investigation within that one-hour period of time because the detectives have not made application for the search warrant yet and have not made entry into that home to find out if that person is, in fact, involved in the crime.  That person can easily pick up a telephone, call into the suspect’s residence and say, basically, “I was just stopped by the Consolidated Narcotics Unit.  I don’t know what is going on but they are looking at you and they are sitting outside your house.” 

 

[Det. Colby Palmer continued.]  For us, it would not be feasible to even serve a search warrant after those circumstances had been met by someone who had been released from a Terry stop.  It would not be safe for the entry team making entry into the residence and it would also compromise the investigation to the point where we would have to start over from square one.

 

That’s enough on the timeliness issue.  Here is just a little bit about the confidentiality and the safety of the people who are listed in that affidavit.  I can tell you that explicitly since January, I have done five search warrants myself where all five of my informants have been either threatened within two to three days, if not a week, of immediately serving those search warrants at those residences.  The problem with the affidavit being left immediately on scene is that everyone in the dope community knows exactly what the defendant was arrested for, knows exactly who the confidential informant was or the detective that was used for the operation, which leads to the defendant not being able to complete something that is actually allowed to occur after he is arrested—and that is substantial assistance.  He is allowed by state law to provide substantial assistance to law enforcement officers in order to get probation on his case.  That is how we work up the ladder, so to speak, in the drug community.

 

That person, and I can give you an example from last week, has not had the opportunity to do his substantial assistance with me because he has expressed his great concern, the fact that over 40 to 50 people in his circle of drugs have all seen the affidavit, have all talked about the affidavit, and there is no element of the informant or the defendant actually being able to lie to his friends, lie to other members of the drug community in order for him to do his substantial assistance with us.  It is all taken at face value, because it’s right on the affidavit and it is accessible to every crook, every person who is friends with that defendant.

 

Lastly, I would just like to conclude that I know that law enforcement officers do not want to circumvent the judicial process.  We are a very professional organization.  I am a very staunch conservative and believe very strongly in The United States Constitution, The Constitution of the State of Nevada, and the rights of the citizens and our community to be protected by both.  I have always felt that it is the Legislature’s belief, as well as the court’s belief, that there be a proper balance between police powers and the rights of the accused.  However, I feel that in this case the balance has been shifted so much to the side of the accused that, in fact, it ties the hands of the law enforcement officers to provide the service our community expects and deserves.  I appreciate the Committee taking the time to hear my concerns regarding State v. Allen and respect any decision made as a result of our testimony. 

 

Chairman Anderson:

Are there any questions for this panel of witnesses?  Gentlemen and Ms. Erickson, you have done an excellent job of presenting what you consider the problem that the Supreme Court has left us with and I think the Committee has a clear understanding.

 

Assemblyman Brown:

I just keep thinking of some of the high-profile child abduction cases that we have had, such as the Elizabeth Smart case.  I can only imagine that a speedy turnaround time on a warrant is going to be of great benefit in those types of situations.

 

Det. David Jenkins:

Mr. Chairman, if I might?  I want to also assure the members of this Committee and, Mr. Chairman, you, specifically, what we are talking about here is not an intentional circumvention of the process.  In fact, let me assure you that it is still my preferred method to prepare a written affidavit in advance of approaching a magistrate.  That written affidavit would then be filed immediately with the court before the search warrant is even issued.

 

What we are talking about and, perhaps, I think it is only fair to comment that the case that originated in State v. Allen is a case that would not have even been entertained in Washoe County.  It was a very small drug offense without threats to the community.  Although drugs are bad, I think we have to remember that whatever your action is today, it will also affect those very small innocuous drug offenses.  But Mr. Brown, you are exactly right, it will also equally affect and impinge upon our ability to investigate child kidnappings, child sexual assaults, murders, and those violent crimes that the community has every right to expect immediate, prompt action from the law enforcement community.  We are asking for a law that will allow us to do what the community needs, deserves, and expects in those emergency situations and to have judicial review even in an emergency. 

 

Chairman Anderson:

Mr. Gardner, if you have already heard the explanation, I think that would be sufficient.  If you want to add to the excellent presentation that was put on by Mr. Clifton and the two officers, you’re welcome [to do that].

Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General:

I won’t even attempt to equal the excellent testimonies of Mr. Clifton and Detectives Jenkins and Palmer.  I would like to go on record (see Exhibit D) on behalf of Attorney General Brian Sandoval in support of Senate Bill 316.

 

We handle a far smaller number of search warrant investigations and prosecutions than do either of the Clark County District Attorney’s Office, the Reno Police Department, or Washoe County District Attorney’s Office.  Nonetheless, we do about 20 to 30 cases a year.  We have already had to drastically modify our procedures and have all but abandoned telephonic search warrant procedures because of this.  I think it is important to point out that although telephonic search warrant procedures do inure to the convenience of the judges and the law enforcement community, they also provide some important guarantees to the protection of the targets and of innocent citizens as well.

 

Telephonic warrants result in far shorter freezing of premises prior to the execution of search warrants.  They result in far shorter detentions of vehicles and their drivers and passengers as Detective Jenkins suggested.  Therefore, there is an important reason why telephonic warrants should be encouraged.

 

We are also talking about a very large state, the state of Nevada.  We have to deal with hundreds of miles.  We had to try to execute a warrant in Laughlin, Nevada, several weeks ago and we were actually preparing the warrant here in Las Vegas, actually physically getting a written affidavit—the time it would have taken to do that we would have had to add to that the time of traveling to Laughlin an hour and a half away.  But we had to do that because we did not have confidence that a telephonic warrant would have satisfied the dictates of State v. Allen.

 

I have just a few other points to make and then I will conclude.  Senate Bill 316 goes to great lengths to ensure continued protections.  The requirement that the affidavit be filed within ten days of the execution of the warrant—that is already a requirement that exists.  There is no reason why that can’t be done sooner if possible, but I would also point out that there is a difference between the filing of a search warrant affidavit and the filing of a complaint against a defendant who is in custody.  For a defendant who is in custody and has been charged, we have 72 hours to file a complaint.  Often as not, a search warrant precedes the filing of any criminal complaint.  A search warrant could be part of an ongoing investigation.  We might not actually file charges in a search warrant case until weeks after the search warrant has been executed, so the time considerations are not the same as they are for filing a complaint against an in‑custody defendant whom you are actually bringing in front of the judicial process.  So I just wanted to make that distinction.

 

I also want to point out that S.B. 316 acknowledges an explicit concern of the State v. Allen court, which is that the person whose affidavit has been taken in support of the warrant now has to be specifically named in the warrant itself.  Before, in my opinion, NRS 179.045 made it an either/or thing.  You could either name the person, make a statement of probable cause in the warrant or incorporate it by reference.  Now the Supreme Court changed that “or” to an “and.”  But S.B. 316 acknowledges that concern, that the person—and this is a very important fact—that the person who is the sworn affiant of this warrant is going to be named in the warrant and the target is going to see that person who is the basis of the probable cause.  We are optimistic that passage of S.B. 316 will resolve this ambiguity, if there is one, and will be fully in compliance with both The Constitution of the State of Nevada and The United States Constitution. 

 

Chairman Anderson:

We have been hearing this bill for an hour now and I was hoping it would be quick.  Mr. Kandt, you have been waiting for some time; you have five minutes to tell us something we have not heard.

 

Brett Kandt, Executive Director, Nevada Prosecution Advisory Council for Prosecuting Attorneys:

[Introduced himself.]  I will be brief because the bill has already been very well presented by others.  I just want to express the Advisory Council’s emphatic support of this bill.  It simply is intended to remedy the effects of this State v. Allen decision by the Nevada Supreme Court and amend NRS 179.045 to preserve customary practice in the execution of search warrants by law enforcement personnel in Nevada and, in fact, throughout the United States.  I reiterate the important point that S.B. 316 adheres to all existing constitutional restraints of criminal procedure in the execution of search warrants.  Thank you very much for your time;  I sincerely hope this Committee will act favorably on S.B. 316.

 

Chairman Anderson:

As long as we have probable cause that is included in the statement to the judge and that is shown in writing to him within ten days, then we have fulfilled the requirements—listing specifics of the place, the timeliness, and those other requirements of physical location are properly identified.  Most of these warrants are thought out ahead of time and are well developed as a concept as compared to something where you arrest somebody right there on the spot when they have committed a crime in the 72 hours.  I understand the difference between those two.  Aren’t we concerned about making sure probable cause, that element, is always there and always in place?  Isn’t that the essential element that we have to hunt for here?

 

Brett Kandt:

Most certainly; probable cause has to exist as grounds for issuance for the search warrant.

 

Chairman Anderson:

Are we overcomplicating this other simplified process because of the State v. Allen decision?  Will this overcomplicate what should be a relatively simple straightforward kind of deal?

 

Brett Kandt:

I would agree with that statement, Mr. Chairman. 

 

Chairman Anderson:

Are there questions from members of the Committee for Mr. Kandt?  Ms. Cox, I see you as neutral on this.  You have some sort of an amendment apparently.  Have you shared this on the Senate side?

 

Juanita Cox, Citizens in Action, People Organized for the Next Generation:

Yes, sir, I have.

 

Chairman Anderson:

What was the Senate’s reaction?

 

Juanita Cox:

They found what I had to say interesting, but they could not, evidently, get enough members to look at it.  I was gone on other matters and I wasn’t able to push it very much.

 

Chairman Anderson:

That is always the problem this late—if the Senate has rejected an amendment and the amendment comes and is added by this side, then all the Senate has to do is drag its feet a little bit and the bill dies.  So, it is one of the things you really want to be really careful about amending the bill at this stage of the game; it could end up killing the bill.

 

Juanita Cox:

I have talked to the chairman and various senators and they see that problem.

 

Mr. Chairman, and members of the Assembly Committee on Judiciary, I am Juanita Cox and I am representing Citizens in Action and People Organized for the Next Generation.  I am here today because Nevada’s law is not clear about its search warrants.  I am asking what the intent of this legislative body is in regard to a misdemeanor search warrant.  I had never heard of one before the year 2000, but at that time I saw two and with further research, I found many.

 

I attached several more of them on the Senate side, but it was late last night and I worked through the night and only attached this one (Exhibit E).  I sent three requests to the Washoe County District Attorney’s Office asking what a misdemeanor search warrant was—they never replied.  I asked the Honorable Supreme Court Justice Rose if he had ever heard of one—he had not.  My investigation found that there were felony search warrants and administrative search warrants but never a misdemeanor search warrant. 

 

I found a Nevada Attorney General opinion, which I have attached (Exhibit E), that stated that the “district court has jurisdiction to issue warrants in other than criminal cases and such warrants must be directed to and executed by the sheriff.”  But these misdemeanor search warrants were directed to non-peace officers, as defined under who’s a peace officer in NRS 169.125.  Subsection 5(a), of NRS 179.045, provides that a criminal search warrant must be directed to a peace officer; we know this.  Therefore, warrants issued pursuant to those sections in criminal proceedings must be directed to and executed by a peace officer and not the Department or its inspectors, as shown in my example.

 

These misdemeanor search warrants were used like administrative search warrants but they were issued by a justice of the peace and not by the district court as directed.  Does this legislative body believe a misdemeanor is such an awful crime in Nevada that it should have search warrant power equal to a felony?  Or, should a misdemeanor crime believed to be a problem by inspectional agencies use the administrative process as directed by law?  The absence of legislation governing the procedure surrounding the issuance of these search warrants, in other than criminal felony cases, necessarily makes Nevada law and the courts that issue such warrants somewhat speculative as to who should appropriately execute them if “criminal” or “crime” is not defined.  The issuance of search warrants is governed by the structures of the Fourth Amendment and also subject to whatever statutory control exists.

 

My suggested amendment (Exhibit E) to this bill is to define a crime in this section as to those crimes defined as a felony.  Simply add the word “felony” to line 1-2, after “A” and before “search warrant.”  This will make it clear to all that Nevada will conform to the rest of the United States.  If you do not add this word to this bill, then I would have to oppose this bill because the people that I find that have done these terrible misdemeanor crimes, such as having a barking dog, et cetera—they are petty crimes and misdemeanor warrants are still being issued all the time.  So I would have to oppose Section 6.  These people are not criminals; they are not wise to the system like we heard in testimony given before me; they need to see that affidavit; they don’t know how to get it, or, usually, they don’t even have an attorney because it is such a petty crime.  It is also very difficult to extract one from some of the court clerks; I have had experience in this and had to sue.  Thank you for listening to me.  Are there any questions?

 

Chairman Anderson:

Do you have examples here in this packet?

 

Juanita Cox:

Yes, sir.

 

Chairman Anderson:

I see one here.  Does it only come from one court?

 

Juanita Cox:

It comes from the justice courts in Reno and Sparks.  I have many examples, but have only attached one.

 

Chairman Anderson:

I will have our legal staff look at it.

 

James Jackson, representing the Nevada Attorneys for Criminal Justice and the Nevada State Education Association:

[Introduced himself.]  To my right is Jack Bullock.  Mr. Bullock is a long-time practitioner in Humboldt County in Winnemucca.  He is the former district attorney there and somebody who was both an adversary and a colleague of mine when I was a state public defender.  I am pleased that he is here today because he was the litigating attorney in the State v. Allen case.  The Nevada Attorneys for Criminal Justiceis in opposition to this bill, Mr. Chairman.  The reason why we are in opposition to this bill is we think that the State v. Allen case is being misread and misapplied.  While Mr. Bullock certainly has a much more intimate knowledge of that case, this opinion (Exhibit F) is fairly short, and I would encourage each of the Committee members to read it.

 

The reason why the evidence was ultimately suppressed in State v. Allen was because the deputy, who conducted the search warrant, admitted in a hearing on the suppression that the warrant did not contain a statement of probable cause and that his probable cause was contained only in the affidavit and nowhere else.  The court found that because the warrant itself did not have a statement of probable cause, that the affidavit therefore should have been provided to the target of the search, Mrs. Allen.  It does not require, under that decision, that in every single case that the affidavit of probable cause be left.  It only requires that the warrant that is executed contain a statement of the probable cause.  Now that may sound like a small distinction, but I submit to you that a statement of probable cause does not require that each and every single detail that the law enforcement community has expressed concern over here today be contained in that statement.

 

I would also point out that the law that was passed back in 1997, was a bill requested by the Nevada District Attorneys Association back then.  There were hearings held on that bill.  There were concerns expressed by the defense bar and this was the bill that they wanted and this is the bill that they got.  I submit to you that the State v. Allen case does not reach as far as has been suggested here today and that the procedure that has been put in place under NRS Chapter 179 does work.  It simply requires that these things not be done in secrecy and that the person who was the subject of the warrant has the opportunity to understand why he is being searched.  With that, I will give it to Mr. Bullock.

 

Jack Bullock, Attorney at Law, Winnemucca, Nevada:

First of all, I want to say this is not a problem created by the Nevada Supreme Court; this is a problem created by law enforcement.  As was indicated earlier, this statute, as it exists today, is the statute that law enforcement wanted through the Nevada District Attorneys Association back in 1997.  In hearings before this same Committee, Ben Graham, and others from Clark County, testified that they needed this to better enforce the laws with respect to search warrants.  Essentially, what has happened in the last few years since the statute was amended is that law enforcement has taken it upon itself to interpret this statute.  All the Supreme Court did was say this is a clear statement from the Legislature as to what you are required to do; there are several choices.  The first choice is simply that they can put in a summary statement, one simple paragraph.  It does not have to mention confidential informants; it does not have to mention witnesses on the face of the search warrant itself.  If they do that, they can seal the search warrant to their hearts content, and that search warrant does not have to be served with the affidavit.

 

The second choice they have is that if they don’t want to put the probable cause statement in the search warrant itself, they can incorporate that by affidavit.  The testimony in 1997 from the Nevada District Attorneys Association clearly said that was a practice that had been done for years and that this was simply codification of that practice.  If that was the correct statement back then, what has caused there to be a change?  If they don’t want to seal the affidavit and they don’t want to put the statement of the probable cause on the warrant itself, then what the statute requires—and now the Nevada Supreme Court has interpreted that statute to mean—that they must then staple or serve the affidavit with that search warrant; it’s a simple process.  If they were going to incorporate the affidavit on the face of the warrant, how would we defeat the purpose of the statute if we don’t serve the affidavit on the target?

 

[Jack Bullock continued.]  It is a simple problem.  I believe the Nevada District Attorneys Association, the district attorneys in my jurisdiction, have overreacted to this piece and I believe that they are reading more into it than there is.  There is a petition still pending for reconsideration by the court en banc.  There is also a case from Washoe County with almost identical circumstances that is going to the Supreme Court where the district judge suppressed the evidence.  I expect those will be consolidated.  We may get some other information from the Supreme Court.  Maybe even a statement that clearly an act of the Legislature in dealing with search warrants is a logical extension of The Constitution of the State of Nevada to protect our citizens.  So we could have constitutional conventions.  I believe that this statute is designed to take away more rights of our citizens; it is designed to allow law enforcement to act in secrecy because they will no longer be required to serve notice on any of the targets as to why they are breaking down their doors at 3:00 in the morning and trashing their houses.

 

With respect to the telephonic search warrants, again the law enforcement community has misread the State v. Allen decision.  All the court has said in the State v. Allen decision is that if they do telephonic search warrants, then they have to put in the face of the search warrant the simple statement of the probable cause.  They don’t, then, have to attach an affidavit because obviously the affidavit will not be in printed form if it has been taken on a telephone.  But, it is as Justice Rose and Justice Agosti, in the oral arguments on this case, clearly said, “How hard is it to put the simple statement on the probable cause on the search warrant”?  When they are doing the telephonic search warrant, the people who are preparing the paperwork clearly should know what that person is going to be saying on the telephone before they are going to take that telephone conference call to a judge.  It is a simple solution for law enforcement merely to state that the probable cause is “a, b, c, d.”  They don’t have to list the confidential informants; all of the concerns that law enforcement has will be protected.

 

I have grave concerns that it seems in the last few years, certainly from 1997 to now, that whenever law enforcement gets a decision from the Supreme Court that they either misinterpret or don’t like, they are knocking on the Legislature’s door to make a change in the statute.  Certainly you have the right to do that, but I encourage you not to do this.

 

[Jack Bullock continued.]  The requirement to have the probable cause statement or the grounds for issuing the search warrant has been in our law since, at least, 1967, when the Nevada Revised Statutes were codified.  In the package (Exhibit G) that I have submitted to all of you, there are copies of each of the bills for the many years since then and all the amendments.  We look at my analysis of the legislative amendments—the critical amendment in 1981, was to put in the telephonic search warrant process.  That process still works.  Yet, what is interesting is that the Nevada District Attorneys Association, in asking for that bill to be passed, did not change the requirement to put a statement of the probable cause in the warrant.

 

Again, in 1997, when they came in to codify the attachment of the affidavit process, that was not changed.  As an assistant district attorney for four years and as the elected district attorney for four years in Winnemucca, we routinely put in either the statement of the probable cause or, if we wanted to do it the lazy way, we would attach the affidavit and incorporate it, staple it to the search warrant and it got served on the target.  If we wanted to seal the affidavit for confidentiality purposes and other reasons, then we put a simple statement of the probable cause on the warrant.  It is not that difficult.  I have spoken to other district attorneys in the rural communities; they don’t see that as a problem.  I can’t tell you their names because they were speaking with confidentiality.  The bottom line is that, it appears to me, the only two district attorney agencies that are concerned about this are Clark and Washoe Counties.

 

I believe rural communities have even a greater problem with doing search warrants than the larger communities.  We have areas in Humboldt County that are over a hundred miles away.  I am sure that Clark County has areas that are close to that, but those problems are not unique to Clark County or Washoe County.

 

If you look at the various amendments, I think it is crystal clear that the concept that we are talking about here has been with our law, and should remain with our law.  The amendment that is proposed for Senate Bill 316 essentially does away with that requirement.  The only thing that is required under the proposed bill is that the search warrant sets forth the criminal offenses alleged to have been committed, the names of the persons who did the affidavit or the oral affidavit, usually the police officers, the persons and place to be searched, and the property to be seized.  It goes on to say, in paragraph 6, that the affidavit is not required to be attached.

 

What law enforcement is trying to do now is avoid what they came here asking you to do in 1997.  I want to scratch my head and say I don’t understand this.  What I do understand is that the officer in the State v. Allen case, and this was critical—Mr. Jackson alluded to that—this is an officer who was with the Humboldt/Pershing Consolidated Narcotics Task Force, much like the ones in Reno or Las Vegas.  He was a deputy sheriff; he had been to POST (Peace Officers’ Standards and Training) and yet he testified that he had absolutely no knowledge of NRS 179.045.  That tells me they are not teaching this in the POST.  So, we have law enforcement officers that are coming out into the field that have no knowledge of how to do a proper search warrant.

 

[Jack Bullock continued.]  I can’t speak for the bigger communities, but in my jurisdiction the district attorneys generally do not assist law enforcement in preparing their search warrants.  And part of the reason for that is the case from a number of years ago where the Supreme Court ruled that if a district attorney participates in preparing an affidavit without good faith, that he was subject to a lawsuit and does not have his qualified immunities.  Be that as it may, the bottom line is if law enforcement is not getting any kind of direction from the district attorneys’ offices, then for years they have been trampling on our citizens’ rights by not either incorporating the affidavit or making the statement for the probable cause.

 

In State v. Allen that’s what was so problematic for the Supreme Court.  There was no statement; there was no incorporation of the affidavit; it was not served on the target.  It was a clear violation of the statute.  This is not something that needs to be fixed.  What needs to be fixed is law enforcement to learn how to do it right.  What needs to be fixed is for the district attorneys’ offices to work with law enforcement to show them that a simple statement of probable cause solves all their problems.

 

Assemblyman Horne:

I believe my concern about the safety issues was addressed.  Do you believe that it is just a simple, brief statement of probable cause, and that the entire affidavit and listing of witnesses and the like isn’t necessary?  Would that solve the problems the other speakers have addressed?

 

Secondly, Mr. Chairman, I have a concern.  Mr. Bullock stated that they’re currently seeking reconsideration of the Supreme Court en banc.  Would what we do here have any effect on that?  Early on in this session, as a freshman, I was taught to take care in trying to pass legislation that would affect ongoing litigation right now.  For instance, if we pass this bill are we going to have the district attorneys go into the Supreme Court and say, “The Supreme Court said ‘x’”?

Jack Bullock:

To answer your question precisely, if you were to amend this statute, I do not believe that the fact of the amendment would impact the decision in State v. Allen or the one coming up from Washoe County.  The reason it wouldn’t is that those cases would be subject to the statute prior to the amendment—the existing statute as it is.  I believe, based upon where we are at, the Supreme Court has not yet decided to have an en banc consideration.  The District Attorney’s Office in Winnemucca filed a petition for en banc consideration.  The Supreme Court asked me to answer that.  There has been no ruling on that yet.  The three-judge panel has already denied reconsideration.  In my opinion, if the Supreme Court decides to issue a decision en banc, they will be deciding that solely on the existing statute.  The Nevada District Attorneys Association, in my opinion, would not be able to go to the Legislature and say the law has been amended so it makes State v. Allen and other cases moot.  There would be no retroactive effect in that sense.

 

Assemblyman Brown:

I am trying to determine by the current statute whether the telephonic method is available with a mere recitation of probable cause in the warrant, or is it necessary that the oral statement/affidavit is necessary for obtaining a warrant telephonically?

 

Jack Bullock:

I believe, yes, the oral statement must be given under oath and the magistrate must listen to that with his own ears.  He cannot have someone come in and say, “I am officer ‘x’ and I took a telephonic affidavit from officer ‘y’ and we want to make that as part of the probable cause.”  The point of the telephonic search warrant, as I understand it in the practice that I had when I was district attorney, was that the person you wanted to take the affidavit from in the field would call and speak directly to the magistrate, the district judge, or whoever was going to issue the warrant.  That [conversation] would be tape-recorded for subsequent transcription; the magistrate would hear that oral affidavit with his own ears to make a determination of probable cause.  Certainly, an individual detective “x” can do an affidavit that basically says, “it is part of my investigation; I spoke to officer ‘y’ and learned ‘x, y, z,’” those kinds of things.  But, if the individual’s agency is going to use the telephonic affidavit, that has to be done directly to the magistrate.

 

Assemblyman Brown:

I am just trying to understand—then does the affidavit or statement have to be attached to the warrant?

Jack Bullock:

No, it does not.  If on the face of the search warrant itself—we are talking about two different documents—a search warrant is a one- or two-page document; the affidavit is a multiple-page document.  In the search warrant affidavit, and there is a statute later on in NRS Chapter 179 that says what format is to be used, the officer identifies number one as the place to be searched, and so forth.  When he gets to the statement of probable cause, he can then put in that probable cause or reasons for the search are as follows:  “Officer ‘y’ through his investigation determined that Joe Doe was selling narcotics or has narcotics in his possession at such and such a house.  That is based upon my affidavit.”  I believe that simple statement is sufficient on the face of the warrant.  The warrant, then, for security purposes—if they want to petition the judge to seal the record or the affidavit—that affidavit stays in the judge’s files, or the law enforcement files.  The only thing that gets issued by the magistrate is the actual search warrant. 

 

So, if the telephonic search warrant process is used, all the magistrate has to say is, “The affidavit in support of the search warrant was taken telephonically and this is the brief statement of probable cause.”  Usually, someone from some agency is going to the justice of the peace, or the district judge, with the paperwork for him or her to review.  When they hear the telephonic statement, those people should know in advance what that officer is generally going to say.  They can then make that concluding paragraph that leaves out all the investigation information, leaves out all the security issues, but puts the target of the search on notice of why the law is knocking on his door.

 

This process is workable without any problems.  Law enforcement has to make a choice.

 

Assemblyman Brown:

Do we have a Supreme Court decision that affirms basically your understanding of that?  Would this simple statement be sufficient for the telephonic affidavit?

 

Jack Bullock:

It is State v. Allen.  That is attached to the documents I submitted to the Committee.

 

Chairman Anderson:

Do you want to make your concluding statement now?

 

Jack Bullock:

One of the things I am concerned about is law enforcement’s statement that I heard.  I came in at the tail end so I am not sure that this is 100 percent accurate.  They are concerned that they want to keep people in detention beyond the 60-minute rule.  That, in my opinion, has nothing to do with the search warrant process.  That is a separate and distinct issue.

 

I believe the Attorney General’s position, from Clark County, making the statement that State v. Allen has changed the statute from “or” to “and” is incorrect.  I believe a close reading of the State v. Allen decision is precise, that they are talking about the “either/or” situation.  It is just that when law enforcement chooses to make a statement in the search warrant, to incorporate the affidavit, that affidavit then must be served on the target.

 

With respect to Ms. Cox’s observations regarding the misdemeanor search warrants, I have been doing this 24 years and, in my opinion, there is no distinction between felony search warrants and misdemeanor search warrants; they are all the same; they all have to follow the same rules in NRS 179.045.  There are administrative search warrants that are authorized by certain agencies.  When I was a district attorney, there were several times when we wanted to go out to someone’s property to get a vicious dog and we had to get a search warrant to do it.

 

In conclusion, I believe that law enforcement is coming to this body crying “wolf.”  I believe the concerns that they have are not valid; I believe they misrepresent or misinterpret the State v. Allen decision.  That decision has simply stated we are interpreting a legislative act that is plain and concise and is not ambiguous.  Based upon that clarity, there is no reason to change this law, especially since it is their law.  It is one that they brought to you and now they are claiming that they can’t live with it.  I would ask that you not pass S.B. 316. 

 

Chairman Anderson:

Mr. Jackson, is there anything you need?

 

James Jackson:

No, Mr. Chairman, I think we have covered it all.  I think that the State v. Allen decision is very clear and it is an “either/or” just as Mr. Bullock said.

 

Assemblyman Carpenter:

I haven’t had a chance to read this and it might not do me any good if I read it anyway because sometimes I want to put cowboy language in it.  It looks to me like this was not only the Supreme Court that ruled this way; it was the district judge.

Jack Bullock:

That is correct.  The district judge, on my motion to suppress the evidence, ruled that they were to follow that process.  The three-judge panel before Justice Young, before retired Justice Rose, and Justice Agosti affirmed that in a 3-0 opinion and basically said those particular procedures had to be followed.

 

One of the concerns that some of the District Attorneys Associations and other people I have talked to have is about the effect of the suppression, which means that because there wasn’t a valid warrant, the evidence does not come in.  We have to have that part of the Supreme Court ruling.  That is not something I believe the Legislature can change; without the suppression aspect of this, law enforcement will choose to ignore the statute when they please.  Essentially, that is what has happened in the cases in Winnemucca.

 

We also have other problems out there regarding how to seal the affidavits.  One of the concerns that I have is, in any particular case, if law enforcement seals the affidavit and they don’t put a statement of probable cause in there, it might be months, or even years, before someone could unseal that affidavit.  If the offenders are not prosecuted after the search, I can envision going in to try to open that affidavit, unseal it, and law enforcement coming in and saying, “Wait a minute; you can’t do that because it is going to compromise our investigation.  You can’t unseal this until we bring charges.”  Well, if they never bring charges, the target never knows what is happening. 

 

What the Supreme Court has done is merely affirm the district judge’s decision that the case in which Deputy Buckston did not follow the law, the search warrant was bad and that the evidence should have been suppressed.  In interpreting this statute for the first time, I believe they gave us clarity on what the requirements are.  The Nevada Supreme Court has not changed the law in any way, shape, or form.  I hope that answers your question.

 

Assemblyman Carpenter:

You said that you talked to some other rural district attorneys and you couldn’t tell their names.  Would you have a problem with me calling them?

 

Jack Bullock:

No, sir, I do not.

 

Chairman Anderson:

Thank you very much, Mr. Bullock; I apologize again.  It had been my intention not to start this until after 9:00 when you would have had enough time to get here.

 

Laura Mijanovich, representing the American Civil Liberties Union of Nevada:

I am not going to reiterate what was so clearly described by Mr. Bullock and Mr. Jackson.  The ACLU attorneys have been able to review this proposed bill and we strongly oppose it for the same reasons I have already stated.  I would only reiterate a couple of points.  The existing procedure under Chapter 179 is a very well-established procedure that provides for the checks and balances that are required under our Constitution.  The proposed bill would allow law enforcement to act in secrecy and the reasons that they have provided—questions of convenience, whether it is cumbersome as the procedure exists—are not sufficient grounds to trample or to take away the rights of citizens.

 

Chairman Anderson:

Are there questions for Ms. Mijanovich from the members of the Committee?  Does anybody else wish to speak either for or against S.B. 316 who feels that his voice has not been heard.  We will close the hearing on S.B. 316.

 

Clearly, the biggest crowd that we have today is for S.B. 50.  I know that quite a few of you have waited through this morning for an opportunity to be heard and I want to make sure we have a sufficient amount of time to hear it.

 

Senate Bill 50 (1st Reprint):  Revises various provisions pertaining to tobacco and products made from tobacco. (BDR 15-260)

 

Who’s the primary presenter?

 

Is S.B. 50 Senator Rawson’s bill?  [Ms. Camacho indicated she would be speaking for Senator Rawson.]

 

Robin Camacho, Director, Advocacy and Communications, American Heart Association, Las Vegas; and the Clark County Indoor Air for Kids Task Force:

[Introduced herself and submitted Exhibit H.]  Prior to delivering our comments, I would like to deliver remarks for Senator Rawson.

 

Senate Bill 50 has been introduced by the Task Force for the Fund for a Healthy Nevada.

 

·        Nevada Revised Statutes 439.630 charges the Task Force for the Fund for a Healthy Nevada to conduct public hearings to receive testimony on existing or proposed programs that, among other things:

 

o       Promote public health

o       Reduce or prevent the use of tobacco

o       Offer information on health care in Nevada

 

·        One objective of the Task Force for the Fund for a Healthy Nevada is to reduce consumption [of tobacco products].

 

Senate Bill 50 does two things:

 

·        It authorizes school districts to impose more stringent restrictions on the smoking, use, distribution, and promotion of tobacco and tobacco products on its property and vehicles.

 

·        It modifies smoking in areas of supermarkets that are operated by gaming, changing the date by which the ventilation must be in place to 2007.

 

Currently, NRS 202.249 prohibits—or preempts—any agency, board, commission, or political subdivision from imposing more stringent restrictions on the use of tobacco products than what is provided in the NRS.

 

The Task Force for the Fund for a Healthy Nevada heard testimony on the impact of preemption on the ability of local governmental entities to impact tobacco consumption.

 

·        Nevada ranks last in the number of smoke-free workplaces, and is the only state where fewer than 50 percent of workplaces have smoke-free policies.

 

·        Las Vegas has an adult smoking rate of 29.7 percent, the highest rate among metropolitan areas in the western region.

 

·        Reno has an adult smoking rate of 27.1 percent.

 

Are these statistics related to our preemption statute?  The Task Force for the Fund for a Healthy Nevada believes that they are.

 

Prior to the Task Force for the Fund for a Healthy Nevada action to request a bill draft request (BDR) to modify preemption, both the Washoe County Commission and the Clark County Commission voted to place on the ballot at last November’s general election advisory questions relating to local control of tobacco use.

 

·        The handout on the results of those advisory questions is provided for you (Exhibit H).  You can see that:

 

o       By votes of 57 percent in Clark County and 59 percent in Washoe County, voters think the county boards of health should be able to adopt stronger regulations in order to protect people from second-hand smoke.

 

o       By votes of 67 percent in Clark County and 68 percent in Washoe County, voters think second-hand smoke should be completely prohibited in areas frequented by children.

 

As these ballot results show, Nevadans are aware of the impact of second‑hand, or environmental tobacco smoke, on health.

 

·        In 1986, the United States Surgeon General reported that involuntary smoking is a cause of disease, including lung cancer, in healthy nonsmokers.  He went on to note that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to environmental tobacco smoke.

 

·        Health effects causally associated with involuntary smoking include:

 

o       Respiratory infections in children

o       Asthma

o       Middle-ear infections

o       Lung cancer

o       Coronary heart disease

 

·        The Youth Tobacco Survey 2001 reported:  More than half of Nevada middle school students and nearly three-fourths of high school students were in the same room as someone who was smoking cigarettes within the seven days prior to the survey.

 

I urge your support for S.B. 50.

 

Chairman Anderson:

Ms. Foley, are you supporting the bill with an amendment?  My paperwork shows you with an amendment.  I am taking those in support of the legislation as presented and then I usually take the amendments after those.

 

Helen Foley, representing the Clark County Health District:

However you would like to do this.

Chairman Anderson:

Well, I am trying to accommodate you to make sure.  Ms. Camacho, I noticed that you have signed in twice, I think, for that very reason.

 

Robin Camacho:

Yes, and if you would like I will make my testimony very brief.  The American Heart Association is a member of the Clark County Indoor Air for Kids Task Force . . .

 

Chairman Anderson:

Are we still talking about the bill?

 

Robin Camacho:

Yes, we are still talking about S.B. 50.  Along with other members such as Pacific Care, the Nevada League of Women’s Voters, Southern Nevada Black Nurses Association, St. Rose Hospital, Nevada Care, and 22 other organizations, I would like to voice our support—the American Heart Association and the Clark County Clean Indoor Air for Kids Task Force—for S.B. 50, and we will be supporting the amendment, which will be presented. 

 

Chairman Anderson:

Ms. Ohrenschall, is this your disclaimer?

 

Assemblywoman Ohrenschall:

That is correct, Mr. Chairman.  I do work for a corporation that deals in tobacco, among other things; I will not participate in the vote on this bill.

 

Chairman Anderson:

Do you wish to excuse yourself from the Committee or do you wish to stay with the Committee?

 

Assemblywoman Ohrenschall:

I will stay with the Committee.

 

Chairman Anderson:

Are there questions for Ms. Camacho?

 

It would appear that the Senate had the opportunity, Ms. Camacho, to—as this body did—to take up the question initially, and decided that this is the way they wished it to come out.  So if we were to amend the bill, would it be accepted favorably or unfavorably by the Committee on the Senate side?

Robin Camacho:

Mr. Chairman, I would prefer to have Helen Foley answer those questions. 

 

Chairman Anderson:

Ms. Foley, do you have any idea?  Do you want to postulate?

 

Helen Foley, representing the Clark County Health District:

[Introduced herself.]  Senate Bill 50 was introduced on January 13, 2003.  It had a hearing on February 7, 2003.  Assembly Bill 96, which is the one that dealt with many other issues, wasn’t even introduced until a week after the original bill had its hearing.  So the only thing that the Senate heard was the issue of local control.  Those other issues that dealt specifically with the ballot questions were not discussed in the Senate Committee on Judiciary.  They only had that one hearing and so, at the end, we proposed an amendment to them, which we will be discussing with you later today.  They decided that because there wasn’t testimony on that specific amendment during the hearing, that they would not entertain it.  So they voted what you see today in the first reprint.

 

However, on the Senate Floor at the time of the vote, the final vote of the hearing, Senator Amodei, the Chairman of the Senate Committee on Judiciary, said that he felt that there were some very meritorious issues in the amendment and encouraged the Assembly Committee on Judiciary to review those and make your decision.  In discussing the amendment with many of the members of the Senate, they agreed with the amendment but did not want to go over the head of the Chairman of the Senate Committee on Judiciary on the Floor and we agreed and did not propose the amendment on the Senate Floor, although Senator Rawson had it prepared.  We felt that this was a far more appropriate way to discuss that amendment.

 

Chairman Anderson:

Let me take testimony in support of S.B. 50; I have Mr. Avance in support.  The Senate decided that apparently they could expand to school districts, I see.

 

Jim Avance, representing Nevada Retail Gaming Association:

[Introduced himself and submitted a copy of the original bill (Exhibit I).]  What you have just heard is a fairly accurate presentation.  I was not in on the bill on the Senate side; therefore, I did not testify.  Later on in committee or work session, gaming operations was brought in, at least in the grocery store area.

 

But, had I testified, Mr. Chairman, I would have reminded the Senate that the Legislature has already addressed this issue.  The retail gaming and the grocery store establishments have since spent thousands of dollars in remodeling.  They have had business disruptions in their grocery stores in their gaming areas.  I would ask the Senate side, “What is second-hand smoke?”  There has been no determination that walking the eight steps by a slot machine area in a grocery store subjects someone to second-hand smoke.  Is it sitting in an automobile with your parents?  Is it sitting in your home with your parents?  Where is their calculation?

 

I would have also told them that every grocery store that I know of, with the exception of Smith’s, has two doors.  One door is by the gaming machines; the other one is not.  So there are two ways in and out of grocery stores, with the exception of Smith’s.  I can tell you that the gaming area in Smith’s has just changed hands; they will be the first ones to be remodeled in the next year.

 

I would have presented to the Senate side the gaming study that we did—a smoke study in the gaming areas—that was not presented to the Senate side either.  Perhaps the amendment that they did to shorten the time that we could remodel our stores would not have been added had they had that study.  If someone had asked us how we determined who performed that study, I would have told them that my people hired Rogich Communications and that Rogich Communications then called the Clark County Health District and asked them who they used for this similar type of study, and the group that ended up doing the study for us was recommended to us by the Clark County Health District as a reputable group.

 

That study, as was presented to this Committee, shows that the smoke does not leave the gaming area, does not leave the slot machine areas, and poses no risk, nicotine-wise, to people any distance away.

 

Chairman Anderson:

Mr. Avance, with all due respect, sir, I don’t find that discussion here in S.B. 50.  I think this deals with school districts having the opportunity to cut the time frame down from [the year] 2010 to 2007.  Are you trying to get at the 2007 question?

 

Jim Avance:

No, Mr. Chairman, I was just indicating to you that I did not testify in the Senate and what I would have said if I had.  I am here in support of the bill, and I have told Senator Amodei that I will not attempt to make any amendments to this bill.

 

Chairman Anderson:

We appreciate that.  Are there questions for Mr. Avance?  Mr. Geddes, did you have a question for Mr. Avance?

 

Assemblyman Geddes:

It was just more of a comment, Mr. Chairman.  We looked at that study and I am still not convinced that the study was a scientifically valid study.  I have asked for some data and I have been presented with some data, but it still has not shown anything in regards to nicotine, the traps that were used, particular cartridges that were used, the sampling rate, and if the samples were preserved properly before going to the lab.  I am not sure that the study, although the firm that conducted that study is very reputable and good—I could not find any QA/QC (quality assurance/quality control)—those procedures that ensure the quality of the data generated, to say that that study would say one way or the other if there was a smoking risk there.  I don’t think we should consider that particular study when we are deciding this issue. 

 

Anthony Bandiero, representing the Nevada Petroleum Marketers and Convenience Store Association:

[Introduced himself.]  We are definitely in support of this bill as it is amended from the Senate.  However, I am a little torn because I do have a copy of Ms. Foley’s amendment and I was going to testify a little bit on that but I guess it hasn’t been proposed.  Should I come back and put my name on the list again to testify about that again, about being against that?

 

Chairman Anderson:

Why don’t you tell us why you are supporting S.B. 50.  If you feel that there is a necessity after the amendments are proposed, there may be an opportunity to question that at that time.

 

Anthony Bandiero:

The main reason I am in support of S.B. 50 is that it does give the school board the option to regulate smoking as they see fit.  Since minors cannot smoke anyway, we feel that that is appropriate for the school board to regulate smoking.  As far as reducing the 2010 to 2007, our members are for that.  We think that is something we can do and will do.

 

There was a mention that Nevada has the highest smoking workplace statistic.  We do have a lot of gaming here and casinos are allowed to have smoking; a lot of people work for casinos, so I am not sure if that is appropriate.  I don’t think we are ever going to meet that standard or try to beat other states in a smoke-free workplace.  However, we are definitely in support of S.B. 50 as amended. 

 

Chairman Anderson:

Mr. Bandiero, how many of your establishments fit into the “having to be ventilated”?

 

Anthony Bandiero:

I don’t know and I will let you know that.  I will talk to Peter Kruger and find out.

 

Chairman Anderson:

I don’t think any of them will.  So, I think your part of that is going to be hurt.  Are there questions for Mr. Bandiero? 

 

In Las Vegas, speaking in support of S.B. 50, is Carolee Ames.

 

Carolee Ames, Citizen:

Yes, I am speaking in support of S.B. 50.  My name is Carolee Ames and I am a “We the People.”  I am not representing anyone, but I have something that I must say.

 

How can we ignore the will of the people?  We must pass S.B. 50.  We must have our restaurants, our convenience stores, our child care facilities, and grocery stores smoke-free.  I beg you to think of every child living in the state of Nevada and pass S.B. 50 today.  I have heard a lot of conversation today and the one thing that I have not heard is, “Has anybody really thought of what we are doing to our children?”  They are the future of our state.  We need to think as a group of people.  We need to take consideration.  Somebody must stand tall now and step forward.  I beg you please support S.B. 50.

 

Chairman Anderson:

Have you read the first reprint of S.B. 50, Ms. Ames?

 

Carolee Ames:

No, sir, I have to admit as “We the People” a lot of it is not real.  I am not an educated person; therefore, I have a little problem with that.  I do know what this is all about and I am a tobacco victim.  I was a smoker, so I speak of 50 years of what tobacco has done to my life.

 

Chairman Anderson:

Thank you for sticking around this morning while we went through those other bills.  I have a couple of people who have indicated a neutral position on S.B. 50.  Is there anybody here who wishes to speak in support of S.B. 50?

 

Bonnie Parnell, representing the League of Women Voters:

[Introduced herself]  We have been very involved in this issue and I would like to go on record in support of S.B. 50.

Chairman Anderson:

Is there anybody else who wishes to be heard in support of S.B. 50?  Then I will call the two neutral people on S.B. 50 and then I will call the amendments. 

 

Van Hefner, representing the Nevada Restaurant Association and the Nevada Hotel and Lodging Association:

[Introduced himself.]  We testified in support of the state authority to preempt all local jurisdictions and our neutral position is—I just have a question.  What special needs might an individual school district have that might be different than if the state were to pass the appropriate law for all school districts?  Because this bill gives the authority for an individual school district with respect to their property, building facilities, vehicles, et cetera, to determine their own policy versus a state policy.  I am just trying to see . . .

 

Chairman Anderson:

I would imagine this would probably—I can only imagine what the Senate was trying to get at here—but I would anticipate that if they decided they wanted to have an outside area at their school site, that they would be able to make that determination if they so chose.  I know that classrooms and places where students congregate at nursery schools are already smoke-free environments.  You are not allowed to smoke in them whether children are present or not present; it makes no difference.  So there can’t be residual smoke or the smell of it in the air.  I would imagine that what they are talking about is maybe outside of a gymnasium or something.  Here in the north where it is cold occasionally, you will see people who will want to get a smoke and step outside, and the school, on occasion, may allow that to take place and that would allow them to do that and designate such a thing.  Other than that, I don’t know.

 

Van Hefner:

I was just inquiring.  It might be okay with the whole state policy; that would be consistent with our other policy of allowing the state to not be preempted.

 

Chairman Anderson:

I think a school district can do what it wants with its property, if this bill were to pass, just as you, a restauranteur, may do with your property as you wish.  If you want to make your restaurant smoke-free, you can do that.  A grocery store owner who chooses to make his store smoke-free can do that, and the school districts would have that option.  I know that some of the smaller school districts sometimes designate a room or an area for their faculty members who might be smokers, rather than to send them off the grounds to smoke.  So they keep them on the property.  I can only imagine what they are talking about.

 

Susan Fisher, representing the City of Reno:

We are testifying today in a neutral position.  The City of Reno supported S.B. 50 in its original form on the Senate side because it was enabling for local governments.  It gave us the ability to enact more stringent regulations.  The way it came out of the Senate, it took out the enabling language and takes back that we shall not impose more stringent restrictions.  If it were to go back to be enabling, we would be more than happy to support this bill again on this side.  I would be happy to answer any questions.

 

Chairman Anderson:

I think the Senate made it very clear that it wasn’t going to accept that kind of amendment; therefore, I wouldn’t send it back to them for fear that it would fail.  I surely would not want to see any step, even a baby step that we might make in this regard, fail.

 

Susan Fisher:

I understand that and we just want to be consistent in our testimony.

 

Chairman Anderson:

I appreciate that.  Are there questions for Ms. Fisher?  Does anybody else wish to speak in favor of S.B. 50, or who needs to get on the record?

 

Mary Lau, Executive Director of the Retail Association of Nevada:

[Introduced herself.]  Actually I signed in neutral because I had heard that there was going to be an amendment proposed, but we are in favor of the bill as written now.  While I would have preferred not to have to move up the capital investment of grocery stores, my members were willing to commit to that and they will lean to the judgment of this body on that one. 

 

Chairman Anderson:

Ms. Lau, I think that the Senate may be, like the Chairman of this Committee, hopeful that the grocery stores were going to be moving a little more vigorously toward putting in those smoking devices that have been stressed.  Some of the grocery stores were not moving quite as quickly in that direction as we had all hoped.  So, maybe we are just lighting a fire to see if we can get a little more movement there.

 

Mary Lau:

Yes, Mr. Chairman.  I think my members heard that and wanted to turn the pot down a little bit before the crabs started crawling out; they are willing to support that.

Assemblyman Geddes:

I did want to state when we had heard the testimony on A.B. 96, there was one comment made that the air filtration system removing the smoke away from the store was so powerful that sometimes it got so hot they turned them off.  I would encourage, as this time line is speeded up and those retrofits are going in place, that the option to turn those [mechanisms] off not be installed.

 

Mary Lau:

We will do everything we can within current technology to make sure that it is done appropriately.

 

Chairman Anderson:

Ms. Foley, this is your second shot.  Ms. Camacho, this would be a good time for you to come up, too.  Give Ms. Foley a little moral support up here.  She always knows what a pleasant spot this is for her; I’d like to make her feel comfortable.

 

Helen Foley:

Mr. Chairman, I appreciate that very much.  Out of all of the issues that I ever deal with in lobbying, this tobacco issue seems to be the most challenging.  I explained to you why this amendment was not considered on the other side.  We felt that it was inappropriate for us to attempt to alter Senator Rawson’s task force bill on tobacco because it had a legitimate issue of local control.  However, at that time there were other bills that were coming through the pike.  Mr. McCleary had a bill that dealt with schools.  Mrs. Angle had a bill that dealt with grocery stores and, of course, Assembly Bill 96 was a reaction to the ballot questions.  We have heard some arguments that—well, yes, everybody supported the ballot question.  Why wouldn’t they?  But, it was very confusing.  The ballot question was not confusing.  The ballot question stated, “Should second-hand smoke be completely prohibited by state law in places frequented by children, such as schools, grocery stores, restaurants, and government buildings?”  That is not difficult to understand.  That is not difficult at all.

 

[During a previous meeting] we gave you a copy of the American Heart Association’s booklet “Nevadans Speak Out on Tobacco,” and each of you has before you the Margin of Support in each of the legislative districts (Exhibit J).  Now, I must apologize to two members, Assemblymen Sherer and Carpenter, because your names are not on here.  This was only on the ballot in Clark and Washoe Counties.  But I would like to let you know very clearly that the range was from 62 percent support all the way up to 77 percent support—overwhelming—far more than two-thirds in the majority of the areas to completely ban smoking in those locations.

 

I feel like we have gotten a bit caught in a “Catch-22.”  What will the Senate approve; what will the Assembly approve?  What we decided to do, rather than present an amendment that strictly abides by that ballot question—we thought we would take the economic side of the issue and that is what this has boiled down to.  Certainly for the grocery stores, the convenience stores, the casinos, for anyone that has a slot machine anywhere, we have removed them from the equation.  They can just smoke until they kill themselves.

 

But other people in other locations will not have to inhale tobacco smoke.  When the question was, “there is no proof that second-hand smoke or environmental tobacco smoke hurts,” the Center for Disease Control said that there are no safe levels for tobacco.  The Environmental Protection Agency has declared that it is a Group A carcinogen, which means that it is deadly.  It is very simple; that occurred in 1992.

 

Here is our amendment (Exhibit K).  We would propose that you keep the provisions of the bill the way they are.  We are not asking you to change that for schools; they would still remain [under] local control.  We would still have the 2007 date for grocery stores.  I don’t like that, but that is a major economic compromise.  What we would ask you to do is—in public buildings, meaning government buildings—that you ban smoking in the building and 20 feet away from the main entrance or exit of the building.  The length of space, the number of feet, was really determined by some questions that Assemblyman Horne had about—I think we had 50 feet—how far is that?  I talked to your Speaker and I think what we wanted was a length that simply allows people to not have to run the gauntlet when they walk out of a public building—so that the smokers are a bit dispersed, or they could even have a nice little hut, like they do here at the Legislative Building outside with the pretty blue roof.

 

Chairman Anderson:

That no one goes to.

 

Helen Foley:

That no one goes to.  But they have a choice and they can be a little warmer in there and not infect the rest of us with their smoke.

 

I will do two quick ones very briefly.  Video arcades, which is defined in NRS as ten or more machines, and many of those arcades are frequented by children and, also, child care facilities.  Now, let me point out that with child care facilities, the instructors cannot puff away in front of the children, but they could be right in the next room and the tobacco could be wafting out at everyone.  So, we think that there should be an outright ban in child care facilities.

 

The next issue is restaurants.  We believe that the people clearly spoke that they do not want to have to inhale other people’s tobacco while they are having a meal.  I know it is very discouraging when you have tables very close together and you are right next to that smoking section.  You are just about ready to eat your wonderful chef salad and here is a guy next to you right after his prime rib and he is just puffing away and it makes it unlivable for you.  But, we did not completely remove, in our amendment, tobacco from restaurants.  We said that if you have a bar within that restaurant and minors are not allowed there, just smoke away.  We think that this is appropriate.

 

There were some questions in your Committee on A.B. 96 that dealt with “happy hours.”  What about other adult entertainment areas where they may have a cigar bar, isn’t that appropriate?  Well, certainly it can be.  We think we would go a long way if when you walk into a restaurant, all the areas for dining, except for that bar area, would be non-smoking.  If someone wants to have a cigarette—if they want to smoke all the way through their meal—they can sit in the bar area and have a meal.  Unlike California when they passed their first incremental bill, they said that food in a bar area had to be “incidental.”  We did not mention that in this bill.  They can have the full menu in that bar, but other people don’t have to inhale their cigarette smoke.

 

Again, this amendment does not apply to casinos, to bars, or to bars within restaurants, and we have not mentioned in any instance the convenience stores or the grocery stores.  We have taken the economics out of this, but we believe that because all of the other bills, and many of them came through this Committee, did not come up for a vote.  This will be the only time this session that you will have an opportunity to vote “yes” or “no” on these ballot questions, and we think that is real important, and we certainly encourage you to support this amendment (Exhibit K) to Senate Bill 50.

 

Chairman Anderson:

Are there questions for Ms. Foley or Ms. Camacho?  Ms. Camacho, do you wish to speak in support of the amendment?

 

Robin Camacho:

Yes, Mr. Chairman, thank you.  Again, I will keep it very brief.  As I stated earlier, the American Heart Association and the Clark County Clean Indoor Air for Kids Task Force are in support of the amendments for S.B. 50.

 

Chairman Anderson:

Are there questions for Ms. Foley or Ms. Camacho?  There are none. 

Assemblyman Mabey:

I have a couple of questions.  Throughout the country, how many states now have laws like the one that you would propose with this amendment?

 

Helen Foley:

The majority of states have laws that are stricter than Nevada’s current law.  Many of them ban smoking to some extent—almost all of them in public buildings.  I don’t know of any other state that allows child care facilities to have smoking.  With the restaurants, more and more are going that way.  We know that New York and Boston just recently went that way.  Even, and I mentioned this before, even the government of Ireland—the last bastion of having a pint at the pub—has banned smoking in all of their bars, so this is something that almost everyone is doing because of the vast knowledge that they have now on the hazards of environmental tobacco smoke.

 

Assemblyman Mabey:

You mentioned restaurants, how about a restaurant that is in a casino?  How would you view that?

 

Helen Foley:

Unfortunately, we have taken the economics out of this as I stated before, and so restaurants within gaming establishments–if it is a non-restricted gaming establishment—are excluded from any provision in this bill.  I would certainly encourage them to have non-smoking.  I know that more than 70 percent of our tourism now comes from California.  I have three sisters who live in Los Angeles.  When they come home and we walk through a casino, or even a restaurant, they say, “Oh, why do you have to put up with that here in Nevada?”  People have become very sensitized to it, they don’t want to inhale tobacco smoke and it is unfortunate that they have to in Nevada.

 

Chairman Anderson:

Are there other questions for Ms. Foley?  Ms. Camacho, did you need to make an additional statement? 

 

Does anybody else wish to speak in support of the amendment?

 

Kendall Stagg, Executive Director, Nevada Tobacco Prevention Coalition:

Good morning, Mr. Chairman and members of the Committee.  I know you are really tired and pressed for time, so I submitted my testimony (Exhibit L) in writing.  I would like to just say this.  The Nevada Tobacco Prevention Coalition does support strengthening Senate Bill 50 to make it more in-line with the will of the voters. 

 

I would also like to, if I may, answer the question about what states have bans like this.  The four largest states in the country—New York, Florida, California, and I am missing one other—but the point is, the four largest states in the country, as well as thousands and thousands of local jurisdictions all over the country, ban smoking in all public places.  This is the norm that is happening all over the country.  Since the first of this year, there are 37 legislatures across the country considering similar measures. 

 

Of those measures, Nevada’s bill, S.B. 50, is considered to be the weakest of them.  We believe that the voters have spoken out clearly; they believe that we should have some form of local control.  At the very least, we should have smoking banned in public places.  We hope you will listen to the will of the voters. 

 

Bonnie Parnell, representing the League of Women Voters:

[Introduced herself.] Very briefly, I did discuss the amendments—I saw them yesterday—with the League and they are in support.  We are supporting the proposed amendments to S.B. 50, and I would just like to compliment the people who worked on this.  To me, one of the issues when you look at private industry—private business versus public buildings, government buildings, the interest of children versus the interest of adults—it would appear to me as though the proposed amendments have really taken into account and tried to balance [the issues] whether adults make a choice to go into a smoke-filled casino versus what children have to be around in day care, in school, et cetera.  Also, the proposed amendments indicate a real sensitivity to the issue of what we can tell a public building to do versus what we should be telling a private business to do.  So, for those reasons we stand in support. 

 

Chairman Anderson:

Mr. Jackson, I neglected to call on you for your neutral position on S.B. 50.  I see that you had signed in as a neutral on S.B. 50.

 

James Jackson:

[Reintroduced himself.]  I will be very brief.  I am here on behalf of the Nevada State Education Association.  They are generally neutral on the bill; they have a concern with respect to item 5 on page 2.  We certainly recognize that school districts have the ability to impose reasonable restrictions on tobacco use in school facilities.  The only concern that I have been asked to express is that if a district was to pass a complete ban for teachers and staff who are, unfortunately, smokers, that they will choose to leave the campus and go elsewhere to imbibe in their habit; we just have concerns about that occurring.

Chairman Anderson:

Are there questions for Mr. Jackson?  Does anybody else wish to be heard on S.B. 50?  Is there anybody in Las Vegas that wishes to be heard on S.B. 50 or the proposed amendments? 

 

Van Hefner:

[Reintroduced himself.]  Mr. Chairman, we are opposed to the amendment where they were attempting to restrict the restaurants and our freedom of choice to provide both, opportunity for our customers as well as for our employees.  Currently, the testimony that we gave on the Senate side would certainly be appropriate here where we are very opposed with our restaurants.  We have restaurants that are freestanding, as well as restaurants that are in casinos.  Sometimes they are franchised; sometimes they are separate.  Likewise, we offer both smoking and non-smoking opportunities in our restaurants at this time and that is by law.  I would be happy to answer any questions from the Committee.

 

Chairman Anderson:

Mr. Bandiero, do you have any questions for Mr. Hefner?

 

Anthony Bandiero:

I talked to Peter Kruger and he is under the impression, just for this follow-up, that we are affected by this bill, as far as the year 2007 federal regulations requirements [are concerned].  I was just talking to Mary Lau about this to try to confirm that it is for stores with interior space of 10,000 square feet or less; there seems to be some question about this, but he definitely told me to let you know and be on the record that we are affected by this.

 

Chairman Anderson:

You indicated that you had a statement that you wanted to get on the record when it came time for the amendment.  The amendment has been proposed; this is the time to make that statement.

 

Anthony Bandiero:

Just to reiterate, we are for the bill as amended [by the Senate] without any amendments, nothing specifically about the [proposed] amendment.

 

Chairman Anderson:

Does anyone else wish to be heard on S.B. 50?

 

Mary Lau:

[Reintroduced herself and submitted a chart for distribution (Exhibit M).]  I have been working on this issue for so long—I quit smoking but . . . Ms. Foley gave me the amendment last night and asked me to review it.  So I reviewed it and in trying to compare what we have done in the past—because this Committee and the Senate Committee on Judiciary have continually worked on this issue—and in every single session there are changes.  While we do not have an area of interest in the public buildings or the video arcades or child care facilities—we certainly cannot speak to those issues—these are areas of the law that are covered currently.

 

On the section for restaurants, we have several restaurant members who appreciate the flexibility in the law.  I will use my example that I have used before; this is why we are opposing the amendment on behalf of our restaurant members.  We have a member here in Carson City, which is the best example.  Tito’s Restaurant has a separate smoking room; there is a separate dining area that is non-smoking and they have a bar that is included within the building of the restaurant.  It is not bar-contained within the restaurant.  When the restaurant gets crowded, they close their smoking area completely and move all diners that choose to smoke into the bar area; they have tables in the bar and they feel that they will lose the flexibility to handle and accommodate their customers with changes in the law.  Currently, they are required to have separate sections if they have 50 seats or more, but smaller restaurants and the marketplace are changing.  Another one of our members is Heidi’s Restaurants.  They have gone non-smoking in all their restaurants, so we feel the marketplace is taking care of a lot of those issues.  We do not support this amendment. 

 

Chairman Anderson:

Thank you, Ms. Lau, and thank you for the handout (Exhibit M); it’s very informative.

 

Does anybody else wish to be heard on S.B. 50?

 

I have received well over 100 faxes (Exhibit N) in support of S.B. 50, and would ask that they be entered in the record this day.  There is also a letter (Exhibit O), which I had asked to be distributed to the Committee, from the American Cancer Society in support of the legislation, which we will enter in the record and ask to be distributed to the members of the Committee.  I am not going to ask for distribution to all of you, unless you would like 100-plus letters in support of the legislation.  I am sure many of you also received them, as well as a countless number of e-mails.

 

With that I will close the hearing on S.B. 50.  As you all know, at this late date in the game, it is the Chair’s preference to try to move things along rather than try to move them back to the board.  My feeling is that if we moved it, and, maybe, I have been incorrect with all of you, this may be the case in this instance, but if you have a desire to amend it we can indeed amend it.  I am not sure that the amendments will be acceptable to the members of the Senate at this particular moment of time.  I would advise against it, for all they need to do is drag their feet a little bit and the bill itself would die.  I think that would cause all of us concern.

 

I am pleased that they have narrowed the time frame for the grocery stores and gave the school districts the opportunity to make it clear that they have complete control over their property.  I think we have already done that in the past and made it very, very clear that you can’t smoke at school where kids are. 

 

So, I think we are in pretty good shape but this will remove that question unless the school districts decide they want to do something uniquely different.  In that case, I think they would have to take the public criticism for it themselves and they would have to deal with it at the local level for taking that criticism. 

 

I still prefer it being a statewide issue, rather than a local issue.  I know that the Senate, at least in speaking with Senator Amodei—he and I had several conversations about the question and how the committees felt.  It appeared that the private ownership question seemed to be paramount.  The restauranteurs and the grocery store owners who wish their establishments to be smoke free can currently keep them smoke free.  Currently, you cannot smoke in a grocery store in the grocery section; you can smoke where there is a designated area; you can’t just wander around in a grocery store with a cigarette.

 

Assemblywoman Angle:

I would like to voice my support for the amendment and would make the motion that we Amend and Do Pass S.B. 50.

 

Chairman Anderson:

And the amendment being?

 

Assemblywoman Angle:

The amendment being the one that Ms. Foley brought.

 

Chairman Anderson:

Since that is not written out, are those suggested ideas—a list of things that she would like included?

 

Assemblywoman Angle:

Yes.  It would be the entire list that she gave, the restaurants, all of those things that were not economically challenged by preventing smoking in those areas.

 

Assemblyman Geddes:

I would be supportive of S.B. 50 as is, to take that baby step to move it forward.  I would also be supportive of the amendments.  I am still a little hesitant on restaurants of being free, free enterprise and free choice, but if that was included I would be supportive of that as well.

 

Assemblyman Horne:

I, too, would be in support including the amendments.  I remember the first bill that came forward with Ms. Foley and it was 100 feet that she requested from the door.  So I think she came down significantly, down to 20 feet, and I don’t understand the objections if truly we are trying to—our first concern, our children—why there would be opposition to having smoke-free video arcade games?  That is where a lot of them [children] congregate.

 

I was based in California during that whole debate on the restaurants going smokeless and I heard the arguments there that they would lose business, that they were going to suffer, and that didn’t happen, nor was there a backlash.  I haven’t heard anyone complain in many trips to California—and there are many restaurants—that anyone got upset because they couldn’t have a cigarette.  So I would be supportive of the amendments.

 

Assemblyman Carpenter:

This is a very difficult issue for me on the restaurants.  I have a restaurant, and we have an area for smokers and for non-smokers.  No matter what I do, it is going to be very, very difficult.  Some of my best friends smoke, but I don’t smoke, and I don’t like to see people smoke, but I am not going to go so far to say that somebody who smokes is a bad person or a second-hand citizen.  So what happens with my establishment if they can’t smoke there, but they can smoke in Stockman’s or the Red Lion down the street?  They are going to go down there, and so I am going to lose 30 or 40 percent of that business.

 

Anyway, the situation is that we are in a no-win deal.  If you are going to ban smoking in every restaurant, casinos, and everywhere, so that those people couldn’t leave my place, then I can see some merit in it.  But to pick us little restaurants off and put us in a situation where the people who want to smoke, and we do have a specific area where they can smoke, and sometimes you can go in there and the non-smoking area is full; the next time you go in there, the smoking section is full.  You just can’t tell.

 

I think that if you want to ban smoking in all restaurants, in casinos, or wherever they are, so that you don’t put me at a disadvantage, then it might work.  Otherwise, it is very, very difficult, because I have some really great friends that smoke that I can’t condemn.

 

If you people out there can stop the young children from smoking, I am for you.  But it just—I don’t think it is going to happen.  We have tried everything and there is a certain segment of our population, for whatever reason, that do smoke.  Maybe some of them smoke just to rebel; I don’t know why they do it.  Some people say young girls smoke so they don’t gain weight; I don’t know what the reason is, but I think that to ban it in specific restaurants and not with everybody puts us at a terrible, terrible disadvantage.

 

Assemblyman Conklin:

I am just listening to some of the things that are going on here and I am almost wondering if it might be prudent to work with these amendments, particularly video arcades and child care facilities and public buildings.  If our intention is to make a strong statement as a Committee, undivided, and send it to the Senate with a message, that might be an option for the Committee.  I am in support of the public buildings and making a strong statement there in particular because I think in reducing the number of people who smoke and really solving this problem is a matter of education.

 

We, as the state, have to take a significant step first and I think banning smoking in all public places would be a significant step.  We are saying that we, as an employer, are not doing it and then hopefully sending a message to other employers in the state that maybe smoking is not acceptable in places of employment.

 

There seems to be some contention on restaurants and I, quite frankly, am just a little concerned.  I can’t say that it necessarily is a sticking point for me, but I have some concerns.  I understand my colleague from Las Vegas and my next-door neighbor from Las Vegas [referring to Mr. Horne]; I understand his point very well and I agree, having originally resided in California for many years.  I also understand the comments of Mr. Carpenter, of which I agree with as well.

 

There are just some people who we are not going to stop and we might be able to ban them from places, but we are not going to stop them from smoking.  I am concerned about those people as well, because a large portion of them are children and they are doing it to themselves.  So I just offer that up as a potential option for us.

 

Chairman Anderson:

Mr. Conklin, I might point out that in 1975, we took the position of no smoking in public buildings–1975, not 1995, 1975.  In 1987 we expanded it to prohibit smoking in hotels, motels, and restaurants if the operators wanted to.  We gave them the ability to do that.  In 1989, it was eliminated in child care facilities where the license provided for more than 13 children.  We again expanded it in 1991 to school buses.  In every session that I have been in, we have dealt with it in one form or another, and if we have not already set the example, I don’t know what else we can be doing.  I just want to point those things out to you.

 

Assemblyman Conklin:

Mr. Chairman, I think I will just leave my remarks where they are and I respect your points very much, thank you.

 

Assemblyman Geddes:

I just wanted to add that I am supportive of the public buildings, although the 20-foot rule, as I mentioned back in the other testimony at the university in Reno and in Las Vegas, we established 50-foot rules and we found them ineffective as far as running the gauntlet because we had to put the ashtrays right next to the door; otherwise, everybody threw their cigarette butts on the ground in front of the door or they would just throw their cigarette butts in the ashtrays and let them smolder; there would be a gauntlet either way.  I am not sure the outside distance rule is very effective.  I think if we are going to go ahead and force the smokers outside the building—like I always make my dad leave my house to smoke.  It is okay if he stands under the awning when it is raining or snowing on him when I kick him out of the house to have his cigarette.  I am okay with the public buildings, but I am not sure the 20-foot rule needs to be there.

 

Chairman Anderson:

Well if I were to count the votes right this second, I would count it, I think, four, possibly five, maybe six—we need eight to pass a bill and Ms. Ohrenschall has abstained.

 

Assemblyman Gustavson:

I have not put my two-cents worth in here yet today on this bill.  I do have questions on the amendment.  I agree with my colleague from Elko about the restaurants; I do not want to jeopardize his right to operate a business and his choice in how to do that.  I do agree with the bill as it is, the first reprint.  I don’t have a problem with that; I would support that, but I don’t think I could support the amendment.

 

Assemblyman Sherer:

I also agree with Mr. Gustavson and John from Elko.  I question the restaurant issue; I know I enjoy—I am a non-smoker—and I enjoy not smoking, or being around it either, but at the same point, we have got to be able to look at—I know quite a few restaurants and little ones, especially in my area where there is smoking throughout the whole thing because 90 percent of the people in there are smokers.  There are quite a few restaurants in other areas that don’t have any smoking and it is nice to go into them.  So one can choose where he wants to go.  So I can’t support the amendment as a whole, but I do support the bill. 

 

Assemblyman Brown:

I, too, support the bill as is; I am in support of the amendment.  I do struggle a little bit with the restaurant issue in as much as, at least, in large urban areas the choices are certainly out there, but I can accept it with or without the restaurant situation. 

 

Assemblyman Mortenson:

I also support the bill, but not the amendment.  I feel as Mr. Carpenter does, probably.  I don’t own a restaurant, but I do have a little respect for people who like to smoke and I just don’t like outlawing them and making them really bad citizens.  I support the bill but not the amendment.

 

Assemblyman Mabey:

I appreciate Mr. Carpenter’s view as a businessman, and I think our state is peculiar in that if there is a casino that is a legal casino and has a restaurant in it, and there is a restaurant next to it and it isn’t a gaming facility, and they couldn’t smoke in that restaurant but they could next door, that would be an unfair advantage in my opinion. 

 

However, it really does bother me—smoking in restaurants—so I would support the original bill.

 

Chairman Anderson:

I don’t want to push this back to the board; I don’t want to put off the issue.

 

Ms. Foley, we are already through with the hearing.  Do you want me to put it back to the board?  I am trying to figure out what you want in here, and I am having a difficult time.

 

Assemblywoman Angle:

I would amend my motion to take out the restaurants, if that is the sticking point.

 

Chairman Anderson:

I haven’t taken your motion yet.

 

Assemblywoman Angle:

Well, I would offer that as a motion then—a motion without the restaurants.

 

Chairman Anderson:

The Chair is still not taking a motion.

 

Assemblyman Claborn:

I have mixed emotions about this bill as well.  It looks to me like it is just another right we lose.  Every time we come up here—we have, like an alcohol bill—it started at .02 and whatever, now it is down—when is it going to stop?  Why don’t they just ban it, get to the point.  Is that what we are trying to do?  Are we trying to ban smoking?  If so, why don’t we just ban smoking?  We keep playing with these; this is my third session and it has been dropping every notch . . . and every time the smoker loses rights.  I can support the bill, but I can’t support the amendment. 

 

Chairman Anderson:

The Chair will entertain a Do Pass motion on the bill.

 

ASSEMBLYWOMAN angle MOVED TO DO PASS A.B. 50 in its first reprint.

 

ASSEMBLYMAN HORNE SECONDED THE MOTION.

 

[A voice vote was called]

 

THE MOTION carried.  assemblywoman ohrenschall abstained.  (Mr. Oceguera and Ms. Buckley were absent for the vote.)

 

I would remind you that if you are not here to vote on a bill, according to our bylaws—however, yesterday I did take one for Ms. Ohrenschall—that you don’t get to come in later and put your vote in.  We have done that as a courtesy in the past and we indicated that that was not going to happen this time.  I know that we are apt to be in and out, but if you miss a vote in Committee, it will be recorded as an absent.

 

The Chair will take S.B. 50 to the Floor.

 

It is 11:00 a.m.  Let’s take a ten-minute break.  I also have a bill coming up in one of the other committees, so I may be looking for a substitute chair here momentarily.  We are in recess for ten minutes.

 

We will reconvene as a subcommittee for the purposes of continuing the Judiciary hearing of May 7, 2003.

 

I want to open the hearing on Senate Bill 299.

 

Senate Bill 299 (1st Reprint):  Prohibits prisoners from manufacturing or possessing certain tools or items adapted, designed or commonly used for purpose of escaping or attempting to escape from custody. (BDR 16-433)

 

Is there anyone here for S.B. 299?  Is there anyone in Las Vegas for S.B. 299?

 

Gerald Gardner:

[Reintroduced himself and submitted written testimony (Exhibit P).]  On behalf of the Attorney General’s Criminal Justice Division, I would like to thank you, Mr. Chairman and the Committee, for hearing our testimony in support of S.B. 299.

 

The Office of the Attorney General drafted the language for this bill.  It was one of those bills where we discovered the hard way that there was no such law on the books; thus we were prompted to consider drafting language that would criminalize a prison inmate’s possession of a tool or device that was obviously intended to be used for escape.

 

Last year I was asked to prosecute a case in Ely involving an inmate who was discovered with three handcuff keys sewn into the hem of his prison-issued pants.  These were discovered during a routine search.  The handcuff keys were remarkable devices.  They were constructed out of what appeared to be sheets of tin from a food tin can that the inmate had apparently gotten from the commissary.  The keys worked perfectly.  They opened up the prison handcuffs, the belly chains, and the leg restraints as easily as the real thing did.  Yet there was no law in the books that made this unlawful.  We tried to prosecute him for attempt to escape, but in my opinion, rightly so, the justice of the peace dismissed the case because there was no element of an overt attempt to escape or to use the handcuff keys.  After this incident, I discussed the case with members of the prison community and members of other district attorneys’ offices and learned of a number of disturbing stories that really stand out.

 

One was after a discussion with Lt. Dan Falge of the Ely State Prison.  He told me that in 1993, when he was a senior correctional officer there, a very frightening incident happened to him when he was in charge of the infirmary.  On one particular day, two death row inmates were scheduled to visit the infirmary for a routine psychiatric consultation.  Their names are Leonard and Redmon.  Leonard was the first to go into the infirmary and when he emerged, he simply went over to another part of the waiting area and sat there.  Redmon then entered the infirmary and exited within a matter of minutes, which alerted the officers that something might be up because the consultation was supposed to take longer than that.  When Redmon came out, his hands were free of the handcuffs.  At the same time, Leonard, who had also removed his handcuffs, revealed the fact that his handcuffs were also removed and started creating a distraction with other correctional officers.

 

[Gerald Gardner continued.]  Redmon then removed a 13-inch Plexiglas shank that he had hidden somewhere and began to attack a correctional officer, stabbing him in the upper lung region.  The correctional officer, who was fairly new on the job, was rendered unconscious by this blow.

 

Officer Falge then came to try to intervene and protect his colleague.  Redmon then turned to face Officer Falge and began swinging at him.  Inmate Leonard who had also escaped from the handcuffs, jammed the saliport, which is the double door system that serves as an air lock to prevent inmates from escaping.  He jammed that so that the other correctional officers couldn’t get into the infirmary and come to their rescue.

 

Redmon then proceeded to take this 13-inch Plexiglas weapon and stabbed Officer Falge seven times in the head, in the back of the neck, and through his ribs.  The average depth of the wounds were an inch and a half; the stabbing to the neck missed Officer Falge’s carotid artery by a half an inch, and also his spine, missing the spinal cord by less than half an inch.

 

Eventually an emergency response team was able to enter the infirmary through another entrance and eventually subdued Redmon and Leonard.  Officer Falge required 77 internal stitches and more than 70 external stitches.  The other officer trainee required 14 stitches; he never returned to work at the prison as a result of this incident.  Officer Falge was conferred an award of heroism by the Governor at the time and is now one of Ely State Prison’s highest ranking officers.

 

What had happened was the two inmates had escaped from custody by virtue of a smuggled handcuff key that had been hidden in the infirmary before they arrived there.  We don’t know who hid it there, but it was hidden in the infirmary and they believe it was in the doctor’s office; it was found in the counselor’s office after the attacks.

 

Redmon was prosecuted and convicted of attempted murder with use of a deadly weapon, on top of his death sentence, which he is still awaiting the execution of.

 

[Gerald Gardner continued.]  More recently, the Washoe County District Attorney’s Office told me a story of a murder and rape defendant in the process of extradition from California; they were doing it by ConAir, the airplane service.  When they do that, they place a box around the inmate’s hands that completely disables the use of his hands and wrists.  As they started to do this before he was boarded on the plane, the inmate almost jokingly said, “Well, I guess I won’t be needing this picklock that I had smuggled with me all this time.”  Sure enough, they searched him and found a picklock.  In conversations with the inmate throughout the flight, it became clear to the escorting officers that the inmate was at least entertaining the idea of taking the plane down after he had successfully escaped from custody if they had not put the black box around him.

 

At any rate, the point of these stories is to illustrate that these were two inmate situations where there wasn’t any evidence of an attempt to escape.  What we had was the possession of an escape device.  At the point where an inmate is ready to carry out an escape, or attempt to escape, and the dangerous situation is so grave, we cannot afford to let it get to that stage.  The point in asking the Legislature to pass this simple bill is to provide a punishment and a deterrent to those who would even think about taking these preliminary steps to facilitate or assist others in an escape, or to facilitate their own escape.

 

We know in the prison system, in the prison culture, that inmates do things for each other; there is a trade system.  One inmate will manufacture contraband and trade it or sell it to another.  If we can deter even one of those persons from providing a dangerous escape device, be it a handcuff key, a rope ladder—we have even discovered inmates in possession of grappling hooks with ropes on them—if we can deter even one such inmate from providing that sort of escape device to a dangerous person the likes of Redmon or Leonard, then, in my opinion, this bill will have been worth enacting.

 

We have taken special care in the bill.  The bill was amended in the Senate to make sure inmates who are in lawful possession of any type of device that could be construed as an escape device would not be punished.  So, an inmate who has permission to do landscaping work out in the yard, for example, is not going to be prosecuted for possessing a trowel or a shovel, as long as he wasn’t trying to escape with the thing.  This is very important for the prison industry system and is completely covered in the language of the statute.  The only people who will be prosecuted for this will be those who are, without doubt, in possession of items that are intended for the purpose of escape.  I thank you for allowing me to speak on this matter and I would be happy to answer questions at this time.

 

Chairman Anderson:

I appreciate you coming forward with this piece of legislation and I am just a little surprised that nobody else from the correctional institutions is here.  I see Mr. Nadeau is here after all.  Mr. Nadeau, did you wish to speak on this?  I was a little surprised there wasn’t anybody here from the prison system or the guards’ association that would be concerned about this.

 

Jim Nadeau, representing the Washoe County Sheriff’s Office:

[Introduced himself.]  We firmly support this legislation; we think it is good legislation.  I’m surprised we haven’t had legislation like this or haven’t had this already on the books.  When you look at it, I think it is a relatively common sense approach. 

 

Chairman Anderson:

Mr. Gardner, when you spoke on the Senate side was there a large group of you that came in or was it just you by yourself?

 

Gerald Gardner:

It was a small handful of us.  Mr. Nadeau was there, I do recall.  Dorothy Nash Holmes was there representing the Department of Corrections and spoke in favor of it; unfortunately, she is not here today.  We actually tried to contact her office last night to discuss some matters and one of the things we hoped to confirm was that there was going to be somebody present for this morning’s hearing, but apparently not.

 

Chairman Anderson:

Are there any questions for Mr. Gardner?

 

Assemblyman Horne:

It just seems that outside of the penalty of consecutive sentence, why isn’t any of this already outlined in law?  It seems this is already against the law—the manufacture of it and use of it to escape?

 

Gerald Gardner:

In fact, it is not against the law to possess a device.  It is against the law to try to escape from prison, or, in fact, from any lawful custody.  It is against the law to try to do that, but it is not against the law to take the preparatory steps of manufacturing an escape device, unless we can also prove that they intended sometime soon to use it.  That is something we are never going to be able to prove in the prison community.  Prison inmates don’t talk; they don’t snitch on each other; they tend to be street-smart enough not to confess to things such as their intent to do some future crime.

 

At the present time, it is not against the law to possess items, such as a handcuff key or a grappling hook or other things.  I analogize it to, at least in the prison system, to possession of—there is other contraband that might be lawful to possess outside of the prison system, but not inside the prison system, alcohol, for example.  There are other things that a free citizen can possess but a prisoner, of course, can’t because of safety reasons and order reasons.  This one is tantamount to safety considerations; therefore, it is important that we criminalize possession of a device that is used to carry out such a dangerous project such as an escape.

 

An escape isn’t just digging a tunnel under a prison wall anymore; escape is taking hostages; it’s attacking correctional officers; it’s attacking civilian employees.  It doesn’t necessarily require escape from the prison walls; escape from a cell or escape from a particular confine of the prison is also considered an escape under the law.  Believe it or not, a prisoner will try to escape from custody or escape from control just to carry out an attack on another inmate that he doesn’t like.  He knows he is going to be caught; he knows he is not going to go anywhere.  It just happened a couple of weeks ago, where in Ely three inmates, in front of the correctional officer, attacked another inmate and beat him to a pulp, just for pure revenge.

 

Chairman Anderson:

We were hoping to move on this piece of legislation.  Mr. Horne, how is your comfort level?

 

Assemblyman Horne:

I am fine with it, Mr. Chairman.  It’s just when I looked at this itemized list it seemed like contraband to me already.  If the inmate has it outside of the scope he is supposed to, it is contraband.  That’s all.

 

Jim Nadeau:

In many cases these things are handled internally through the due process system within.  But as far as a criminal penalty is concerned, this is new language.

 

Chairman Anderson:

Well, despite the large number of people needed for support of this piece of legislation, does anybody else wish to testify in support of S.B. 299?  It appears to be a meritorious piece of legislation.  Does anybody wish to testify in opposition to S.B. 299? 

 

Let’s close the hearing on S.B. 299.

Assemblyman Geddes Moved to Do Pass S.B. 299 in its first reprint.

 

Assemblyman Claborn seconded the motion.

 

On the Geddes/Claborn Do Pass motion on S.B. 299, which appears to be a simple little bill in its first reprint that addresses possessing of material for escape or attempted escape from confinement, are there any questions from the Committee?  [The Chair called for a voice vote.]

 

The motion carried. (Mrs. Angle was not present for the vote.)

 

Mr. Claborn, I am going to assign S.B. 299 to you.

 

The Chair has a bill in committee and we have one bill left on the agenda.  Ms. Buckley, is it your intention to be here much longer—in the Committee that is?  You are entitled to be here as many sessions as you would like.  Mr. Oceguera, you also have an appointment.  Ms. Ohrenschall, I will surrender the Chair to you and we are waiting for Senator Cegavske on Senate Bill 339.  She is on her way up.

 

Acting Chair Ohrenschall:

Senate Bill 339.  Senator Cegavske, welcome to our Committee.

 

Senate Bill 339 (1st Reprint):  Makes various changes relating to use of tobacco products. (BDR 15-1126)

 

Senator Barbara Cegavske, District No. 8, Clark County:

Thank you, Madame Chair, I appreciate the opportunity to be before you today.  I am here representing Senate Bill 339, which prohibits a minor child, under the age of 18, from falsely representing his age for the purpose of purchasing or obtaining cigarettes or other tobacco products.  The bill further vests jurisdiction over a minor who commits this act with the juvenile division of the district court and allows the court to order community service for a penalty for engaging in this prohibited conduct.  Now that I have provided the Committee with an overview of this, I would like to give you a section by section, which is brief.

 

Section 1 of Senate Bill 339 intends to accomplish two objectives:

 

·        To amend Chapter 62 of the NRS to include a new section prohibiting a minor child under the age of 18 from falsely representing that he is 18 years old or older in order to purchase cigarettes, cigarette papers, tobacco of any kind, or any product made from tobacco.

 

·        To ensure that the provision of this bill does not apply to a minor assisting in inspections or compliance checks pursuant to NRS 202.2496, Section 2.

 

The intent of Section 2 is to amend NRS 62.040 to provide that a minor child who engages in this type of prohibited conduct will be under the jurisdiction of the juvenile court as a child in need of supervision and not considered a delinquent.

 

The purpose of Section 3 of Senate Bill 339 is to amend NRS 62.212 to include a new subsection, subsection 5, which allows a court to order a minor child who falsely represents his age in order to buy cigarettes or other tobacco products to perform community services.

 

The intent of subsection 5 of Section 3 is to provide that the community service be performed for and supervised by a county, city, town, or other political subdivision, or agency of this state, or a charitable organization that renders services to the community or its residents.

 

This concludes my presentation of Senate Bill 339.  Thank you for your consideration of this matter.  If there are any questions, I will try to answer them for you.  I do have to let you know that they are waiting upon me to chair the Senate Committee on Health and Human Services.

 

Acting Chair Ohrenschall:

We’ll make it quick, Senator; we are about to lose our quorum from several other committees.  I have one question before we open it to the other members.  In your bill what is the advantage of having a child considered a child in need of supervision as opposed to delinquent?

 

Senator Cegavske:

We don’t want to put such restrictive penalties on a juvenile; we wanted to make sure that we let him know that it is against the law and that possession of it is illegal.  But, we also did not want to put him in jail.  We were trying to differentiate that.

 

Assemblyman Horne:

Senator Cegavske, I think we had a similar Assembly bill earlier this session and I think one of our concerns—at least it was mine—was how would we enforce this.  Are we setting up a situation where we are going to have the 7-Eleven clerk try to detain the 16-year-old in order to call the authorities to give this person a citation in order to present himself before a judge?

 

Senator Cegavske:

No, being a previous 7-Eleven owner, we did not detain anybody that we didn’t feel comfortable or safe detaining.  We had adolescents who would steal beer frequently—do the beer runs.  I learned very quickly that we only detained whom we absolutely thought we could hold there.  With the tobacco, what we have done is confiscate the false ID.  With tobacco or alcohol they present the card to you.  We take it and we would put it in our safe and call the authorities and let them know.  If we got a license plate number, we would let them know.  That was about the beer; right now it is not illegal for juveniles to possess it.  They are not supposed to buy it; they are supposed to be 18.

 

Assemblyman Horne:

Even on the retaining the false identification, if it is a false identification, are we assuming that the address is accurate?  Would everything but the date of birth be correct on the ID?  I just don’t see how we are going to enforce this and how we are going to get these individuals.  Don’t get me wrong, I understand that they should not be buying these products, but I don’t know how we are going to enforce this.

 

Senator Cegavske:

It is not going to be a high priority; it is not going to be something that they are going out to look for, that the police officers are going to go out and say, “Can I check your pockets and see if you have a pack of cigarettes.”  That is not the intent.  But we do need to have something strong that says to these kids that it is against the law for them to possess tobacco products and until they reach the age of 18, they cannot possess them.  So if they are caught for something else also, they could be sent to a smoking cessation program so that they learn about the effects of tobacco and how it harms them, if that is what the judge so decides.  I do remember the bill that you are talking about and that was never the intent with that bill—the concerns that you raise—that was never the intent of that legislation either.

 

Assemblyman Horne:

I would be more comfortable in the scenario you just painted, if the child were detained or arrested for another matter.  Let’s say we found cigarettes on them or rolling paper, that this could be added to that and if this could be added as an additional sentence or penalty or whatever.  But, as it reads now it doesn’t state that, it just states if they try to buy.  So that just leaves in my mind the fact that if they try to buy somebody has got to stop them.  That is the only thing that’s on my mind.

Assemblywoman Angle:

As I read the bill, it isn’t possession, it is trying to buy.  Is that correct, Senator Cegavske?  It is not for them having those things in their possession that you would go after them; it’s for trying to purchase those things.

 

Senator Cegavske:

Yes, in Section 3, subsection 5, “allows a court to order a minor who falsely represents his age in order to buy cigarettes or other tobacco products,” is the statement that is made in that section.  That is the language there.

 

Assemblywoman Angle:

So, we are not talking about possession; we are talking about trying to buy it.  My limited knowledge of juvenile crime is that sometimes a store owner, at least when I lived in Tonopah—that is where I worked with juveniles—we knew these kids;  we knew how old they were.  They came in and would want to buy a pack.  We knew they weren’t old enough.  We would get a call from juvenile hall.  I would say, “You might want to check with so and so, he was just in here trying to buy something.”  Then we would go to the kid and we would say, “You know that is illegal; you really have a problem here, buddy; we need to work with you on this.”

 

I know how that would work in the rural areas.  It’s a little harder in a larger community where you don’t know the kids.  I don’t see in your bill the possession of it; so it’s really going to be up to the juvenile authorities to work with the kids that they know about that have this problem and kind of keep them in tow.  This is just to give them, as I see it, a tool to do some cessation work with them rather than putting the onerous on a store owner or involving the other community.  This is just a tool, am I reading this properly?

 

Senator Cegavske:

Yes.

 

Acting Chair Ohrenschall:

What are the differences between your bill and A.B. 460, which has gone through this Committee earlier and is pending now in the Assembly Committee on Ways and Means?  It seems to me they are similar.

 

Senator Cegavske:

Without having A.B. 460, I don’t know what that is.

 

Acting Chair Ohrenschall:

Do you want staff to research that?

 

Senator Cegavske:

Yes.

 

Acting Chair Ohrenschall:

Are there any other questions of Senator Cegavske?

 

Assemblyman Mabey:

Would many store owners enforce this?  What percentage would do this?  In reading this I just wonder; I have never owned a store, don’t think I would, but I think I would tell my employees about the law but I don’t know that I would encourage them to do it unless it was a 13-year-old kid that came in.

 

Senator Cegavske:

Again, as a store owner I did not detain anybody that I would feel was a threat at all; I never would.  That is not the purpose of this legislation, to detain somebody.  That is not what we are trying to do, but if you wouldn’t mind I could have Peter Kruger talk to you in reference to that question.

 

Peter Kruger, representing the Nevada Petroleum Marketers and Convenience Store Association:

[Introduced himself.]  I am here in support of Senator Cegavske’s bill.  To direct the question, if I could, it is one of those judgment calls that any store owner, as the Senator has indicated, and his or her employees has to make regarding any attempt—whether it is a shoplifting or beer run or tobacco issues.  We see this as a first step.

 

Currently, as Assemblywoman Angle has pointed out, and others as well, when it comes to tobacco there is no statute on the books that has to do with a prohibition against buying, possessing, and using tobacco by underaged youth.  This is a first attempt in three or four sessions.  Senator Cegavske and I agree that this is not far-reaching enough but it is a first step.  Get this on the books and in a future session look at increasing the penalty.  The common concern among legislators in the past has been that this kind of a bill would criminalize this behavior.  Nobody, including our store employees or owners, wants to criminalize this kind of behavior; however, we do think, as Senator Cegavske has said, that this puts the first ounce of responsibility on the underage person to know for the first time that it is illegal, it is against the law to attempt to use a false ID.

 

Possession should be in here, but quite honestly, I am concerned that members of this Committee would oppose that.  There’s obviously a philosophical difference of opinion that putting that kind of behavior and things such as cessation programs would be criminalization.  That is just a philosophical difference of opinion.  So I think that there would be, to get back to the central question, very few attempts to detain.  Keeping the ID is done frequently; securing it, and calling law enforcement, as it has been said, is a very low priority.  We do have the community policing and things of that nature; they come by and participate in the stores.  That’s how I see it.

 

Acting Chair Ohrenschall:

Are there any questions of Mr. Kruger from the Committee?  Before you leave, Senator, let me ask, are there any questions from our listeners in southern Nevada for Senator Cegavske?  There being no questions for you, Senator, we will move on.  Is there anyone else here who wishes to testify in favor of the bill?

 

Elisa Maser, representing the Nevada Tobacco Prevention Coalition:

[Introduced herself.]  The coalition itself has not taken a position on this bill.  We have been working with Senator Cegavske to possibly strengthen the language in terms of the remedies that are available to the judicial system.  I am by no means an expert in the judicial system, but as I read the law in the first instance of a violation of this section, the courts can refer the child to services in the community for counseling, behavior modification, and social adjustment.  In subsequent violations, this language would read “community service.”  We would like to see the option of referring for evaluation and tobacco cessation treatment programs in this law, or somewhere in NRS Chapter 62, where it is appropriate.  There is parallel language on alcohol possession and possession of controlled substances which lays out certification of those programs.

 

Acting Chair Ohrenschall:

Right now, this bill doesn’t include this.

 

Elisa Maser:

Right, and we have been working with the Senator; we would like to see that in the future.  Our main concern is that these kids get into treatment.

 

Acting Chair Ohrenschall:

Are there any questions of this witness?  There are no questions.  Is there anyone else who wishes to testify in favor of the bill?  Is there anyone who wishes to testify in opposition of the bill?  There being no further witnesses, I will return the bill to Committee and close the hearing on S.B. 339 at this time.

Is there any further business before the Committee? 

 

Hearing none, I declare the meeting adjourned [at 11:54 a.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

Sabina Bye

Committee Secretary

 

APPROVED BY:

 

 

 

                       

Assemblyman Bernie Anderson, Chairman

 

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