THE STATE OF NEVADA, Appellant, v. JOSE NUNEZ REYES, Respondent
State v. Reyes
Mowbray, C. J, Springer and Rose, JJ., concur.
THE STATE OF NEVADA, Appellant, v. JOSE NUNEZ REYES, Respondent.
THE STATE OF NEVADA, Appellant, v. JOSE NUNEZ REYES, Respondent.
No. 20559
March 28, 1991
808 P.2d 544
[Rehearing denied May 2, 1991]
Frankie Sue Del Papa, Attorney General, Carson City; Dorothy Nash Holmes, District Attorney, and Gary Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
David Houston, Reno, for Respondent.
OPINION
By the Court,
Steffen, J.:
This is an appeal from an order granting a motion to suppress evidence obtained pursuant to a search warrant issued on the basis of information confirmed through eavesdropping on an extension telephone by a police agent. The sole issue on appeal is whether the eavesdropping, occurring without the consent of all parties to the conversation, was authorized under Nevada law. We hold in the affirmative and reverse.
Nevada law prohibits the unauthorized interception of wire or oral communications. See NRS 200.620; NRS 179.410 to 179.515, inclusive. Under NRS 179.430 the term "intercept" is defined as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device or of any sending or receiving equipment." In pertinent part, NRS 179.425 defines "electronic, mechanical or other device" as "any device or apparatus which can be used to intercept a wire or oral communication other than: 1. Any telephone . . . instrument, equipment or facility, or any component thereof . . . (b) Being used by . an investigative or law enforcement officer in the ordinary course of his duties." (Emphasis added.)
In the instant case, an untested police agent/informant, under the direction of officers of the Washoe County Consolidated Narcotics Unit (CNU) used a police telephone to call a suspected drug dealer, Reyes, and arrange a buy. Because the officers knew that the informant's conversation with Reyes would be in Spanish, they took the reasonable precaution of having an interpreter listen to the conversation on an extension telephone. CNU agents did not want to risk the possibility of the untested informant either jeopardizing the lives of the officers or frustrating a lawful prosecution by means of an entrapment. We conclude that the conduct of the officers was both reasonable and lawful under the statutory latitude quoted above.
The State's position is consistent with that of other courts that have had occasion to consider the same issue. For example, in State v. Page, 386 N.W.2d 330 (Minn.Ct.App. 1986), police officers entered a suspect's apartment without a warrant and under disputed circumstances; the suspect's roommate was the only person present. While the officers were in the apartment, the telephone rang. The roommate was directed to answer the phone while the officers listened in on an extension. Because it is evident that the Page court's reasoning is applicable to the instant case, we quote from the ruling at length:
Since there was no consent, we must determine if there was an "interception" as contemplated by the statutes. If the eavesdropping did not involve the use of an "electronic, mechanical or other device," then no interception occurred and the officer's actions were proper. See 18 U.S.C. § 2510(4); Minn.Stat. § 626A.01, subd. 5. A telephone extension, when used for eavesdropping by an investigative or law enforcement officer in the ordinary course of business, does not constitute an interception. 18 U.S.C § 2510(5); Minn.Stat. § 626A.01, subd. 6(a). Thus, law enforcement officers are insulated from the proscription against eavesdropping, so long as the eavesdropping occurred in the ordinary course of their duties, which includes the investigation of crimes. This eavesdropping is an ordinary tool of law enforcement officers and is consistent with public policy. This is inherent in the statutory scheme at both the federal and state level. See 18 U.S.C. § 2510(5); Minn.Stat. § 626A.01, subd. 6(a).
In this case, the police utilized a telephone extension in furtherance of the investigation of a case of assault and robbery. The use of the telephone extension was in the ordinary course of police business. Thus, the use of a telephone extension in this case was not an interception through any "electronic, mechanical or other device," and the police use of it did not violate the proscriptions against eavesdropping.
This decision is one of first impression in Minnesota, so reference to Minnesota caselaw is not helpful. Our reasoning, however, is consistent with the reasoning of other jurisdictions that have considered similar questions. See, e.g., State v. McDermott, 167 N.J.Super. 271, 400 A.2d 830 (1979). In that case, the police listened to and recorded a telephone conversation of the defendant via a telephone extension. Under the New Jersey eavesdropping statute, which is similar to Minnesota's, the New Jersey Superior Court found that the police conduct did not constitute an "interception" because the police had utilized a "regularly installed extension telephone." Id. at 277, 400 A.2d at 834. Since the telephone was not installed specifically for the purpose of eavesdropping, the court found that the use of the telephone occurred within the ordinary course of business. Id. at 277, 400 A.2d at 833. The New Jersey reasoning is persuasive.
(Emphasis supplied.)
Reyes contends that Page is inapposite because unlike Nevada, Minnesota is a one-party consent jurisdiction. Reyes is wrong, however, because consent was not an issue in Page. Moreover, Page is directly applicable to the instant case, because the Minnesota statute, in pertinent part, is virtually identical to the Nevada statute. Thus, in Minnesota, as in Nevada, an exception to the requirement for properly authorized or consensual interception of private communications exists when telephone equipment is used "by an investigative or law enforcement officer in the ordinary course of his duties." Furthermore, recognition of the exception in the instant case is far more compelling than in Page. Here, both the telephone used by the informant and the extension used by the interpreter were located at CNU offices and represented equipment regularly installed and used in the ordinary course of CNU's investigative and law enforcement duties. In Page, the telephones were in the suspect's apartment, being used without the approval of the suspect or his roommate in an eifoit to accomplish the successful apprehension and prosecution of the suspect.
The case of Adams v. State, 406 A.2d 637 (Md.App. 1979), involved a jurisdiction that required the consent of all participants to a private communication before an interception by consent was lawftil. In Adams, the victim of a forcible sexual assault was asked to eavesdrop from an extension phone in the police station while the police, through pretext and deception, spoke to potential suspects on the telephone. During a conversation with the actual perpetrator of the crime, the victim was able to identify his voice, thereby enabling the police to identify and apprehend the suspect. The Adams court, citing to statutory provisions virtually identical to the Nevada provisions at issue here, stated:
The issue posed by the appellant is whether an extension telephone used at the direction of a police officer, in a police station under the circumstances of this case, constitutes an "electronic, mechanical, or other device" as defined in the Act. If the extension was furnished to the subscriber by a communications common carrier in the ordinary course of its business and was used by the subscriber or user in the ordinary course of business or if the extension was used by an investigative or law enforcement officer in the ordinary course of his duties, the telephone extension would not be an "electronic, mechanical, or other device" as defined in the Act, and there would be no interception.
(Emphasis added.) Continuing, the court in Adams declared:
We find that under § 10-401 (4)(i) (b) [the exact counterpart to NRS 179.425(l)(b)], the specific exception for telephone extensions and other telephone components give broader latitude in the use of telephone instruments and components than is given for the use of other types of electronic surveillance equipment, such as hidden microphones or tape recorders.
Clearly this section is not meant as a substantial loophole in the protection afforded by the Act. On the other hand, the section must be interpreted as giving some authorization to an investigative or law enforcement officer to use telephone equipment without the express consent of both parties. It is clear that the term "ordinary course of his duties" must include only lawful and proper activities and it is both a limitation as well as a protection.
In the instant case, the police were investigating a crime and attempting to apprehend the perpetrator. The manner in which the extension telephone was used was lawful and proper and was in the ordinary course of police duties. Used in such a manner, the extension phone does not constitute an "electronic, mechanical, or other device." Further, since the extension phone was not a "device" within the meaning of the Act, there was no "interception" and hence no violation of the provisions of the Act.
The court in Adams also noted that the victim who was eavesdropping on the extension phone was also a police agent, acting at the direction of the police department. In the instant case, both the informant and the interpreter were acting as police agents. Clearly, as observed in Adams, if the interpreter had simply stood next to the informant, and had the informant hold the receiver away from his ear to allow the interpreter to listen, there would have been no violation of the statute. See Adams, 406 A.2d at 642 (citing United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974)). This is but another reason why the exception written into the statute makes good common sense. The CNU officers were reasonably using a telephone extension to facilitate, in the ordinary course, their duties as investigative and law enforcement officers. As noted by the court in Ladrey v. Commission on Licensure to Practice, 261 F.2d 68 (D.C.Cir. 1958):
No one is bound to answer a ringing telephone. If he does pick up the receiver, he is not required to talk to the outside caller. If he chooses to talk, he may well understand that the calling party, the original "sender" may have others listening to the conversation, whether in a group around the caller's telephone or on an extension attached to it.
Id. at 72-73.
The State also referred to State v. McDermott, 400 A.2d 830 (N.J.Super.Ct.App.Div. 1979), another case directly supportive of the State's position in the instant case. In reversing a lower court suppression order, the McDermott court stated:
It will be seen that without the use of an electronic mechanical or other device (intercepting device) an overhearing is not an "intercept" within the meaning of the act. . . . An extension telephone regularly installed "and being used . by an investigative or law enforcement officer in the ordinary course of his duties . . .''is not an intercepting device within the intent and purpose of either the federal statute, 18 U.S.C.A. § 2510(5), or our own statute, § 2(d)(1).
Id. at 833. Although New Jersey was a one-party consent state, the quoted ruling by the McDermott court construes the New Jersey counterpart to Nevada's statute without reference to consent and in a manner totally consistent with the State's position concerning the absence of an unlawful eavesdropping in instances where a telephone or telephone extension is used by an investigative or law enforcement officer in the ordinary course of his duties.
The case of United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), cited by Reyes in support of the district court's suppression order is not persuasive. In Harpel the government was prosecuting the defendant for disclosing an unlawfully intercepted wire or oral communication between law enforcement officers, a tape recording of which was played by Harpel to persons in a local bar. It was assumed, but not proved, that the interception of the conversation occurred by means of a telephone extension. In its ruling affirming the conviction, the court concluded that "there is no interception if the acquisition of the contents of the communication is accomplished through telephone equipment used in the ordinary course of business." The court then concluded that use of an extension telephone by Harpel would not constitute an exception under the federal statute because Harpel had "overlooked in his reliance on the exception . . . that the telephone equipment must be used 'in the ordinary course of business.' " Finally, the court held that "we do not feel that a telephone used in the manner contemplated under the facts of this case is employed in the ordinary course of business." Id. at 352 (emphasis added.)
Simply stated, the Harpel court properly recognized that the telephone equipment exception requires a use of the equipment in the ordinary course of business, or, in the case of investigative or law enforcement officers, "the ordinary course of [their] duties." Although Harpel was a police officer at the time of the disclosure of the intercepted communication for which he was prosecuted, it is clear from the facts of the case that Harpel was not engaged in investigative or police work in the ordinary course of his duties or otherwise. Harpel was acting on his own for personal purposes as revealed by his publication of the intercepted communication to persons at a local bar. The Harpel case does not, therefore, support Reyes' attempt to emasculate the telephone exception. Harpel is of value only insofar as it states the obvious — the telephone exception applies only if the telephone equipment is used by an investigator or law enforcement officer "in the ordinary course of his duties." Our review of the law and the record before us leads us to conclude that in Nevada: (1) wire or oral communications aurally acquired through use of regularly installed telephone equipment by an investigative or law enforcement officer in the ordinary course of his duties does not constitute an "interception;" and (2) the legislature has specifically provided the NRS 179.425(l)(b) exception in order to facilitate efficient, effective police investigative and enforcement activities rather than to impede them.
The cautionary approach taken by the CNU officers in investigating and prosecuting Reyes' criminal drug enterprise was both eminently reasonable and precisely what the people would expect of their law enforcement officers acting within the ordinary course of their duties. In excepting investigative and law enforcement officers using telephone equipment in the ordinary course of their duties from the constraints attached to an "interception," the legislature has focused on "duty" in the ordinary course as the basis for the exemption. Investigative officers primarily investigate, and law enforcement officers primarily enforce our laws; criminal investigations and law enforcement represent the most fundamental and critically necessary aspect of their duties.
For the reasons specified above, we reverse the order entered below suppressing evidence and remand the matter to the district court for fiirther proceedings.
Mowbray, C. J, Springer and Rose, JJ., concur.