MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 1, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on February 1, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Maddie Fisher, Primary Secretary
Sherry Nesbitt, Committee Secretary
Dennis Neilander, Senior Research Analyst
OTHERS PRESENT:
Robert Cose, United States Marshal's Service
John H. Robinson, United States Marshal's Service
Ben Graham, Clark County District Attorney's Office
Paula Treat, Police Officers Research Association and
the Nevada Judges Association
John W. Riggs, Sr., E Clampus Vinus
Paul McGrath, Sheriffs & Chiefs Association
Jim Nadeau, Washoe County Sheriff's Office
Robert Hadfield, Nevada Association of Counties
Laurel Stadler, Mothers Against Drunk Driving
Nile Carson, Reno Police Department
Randy Oaks, Las Vegas Metropolitan Police Department
Frank Barker, Las Vegas Metropolitan Police Department
Richard Morgan, Nevada Trial Lawyer's Association
Victoria D. Riley, Nevada Trial Lawyer's Association
Senator James called the meeting to order at 2:00 p.m. He advised that the committee will now meet on Mondays at 2:00 p.m., Wednesdays at 1:30 p.m., and Fridays after the floor session.
Senator James advised the status of S.B. 3.
SENATE BILL 3: Revises responsibilities of board of county commissioners with respect to certain jails in county. (BDR 16-796)
Senator James advised the committee received word from opponents of S.B. 3 in Pershing County. Evidentially the county commissioner who was the proponent of this bill is no longer on the county commission and the existing chairman of the commission is not as enthusiastic about it. The district attorney of Pershing County had indicated she felt the bill served no purpose and would be a waste of time to pursue it. One of the staff members researched the history of the bill. Senator James advised he would table S.B. 3 and it would not be brought up unless someone else came forward as a proponent. The Chairman confirmed no one present was a proponent of this bill. He asked for a motion to indefinitely postpone the bill.
SENATOR SMITH MOVED TO INDEFINITELY POSTPONE S.B. 3.
SENATOR McGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Senator James opened the hearing on S.B. 2.
SENATE BILL 2: Provides United States marshal and his deputies certain authority to arrest persons without warrant. (BDR 14-167)
Senator James advised S.B. 2 essentially adds the U.S. marshall and his deputies to the statutory power given to FBI agents and Secret Service agents; the power to make arrests without a warrant under certain limited circumstances.
Mr. Ben Graham, Deputy District Attorney, Clark County District Attorney's Office gave oral testimony. Before discussing S.B. 2, Mr. Graham wished to state regarding S.B. 3, this bill was killed in 1991 on the first day of the first testimony that he gave before a committee. He was pleased to see the bill was coming back again, but in light of the history of the bill, he believed it went the proper way. Mr. Graham stated this was the first opportunity he has had to talk to this committee in a formal capacity and has previously had the privilege of meeting the chairman and some of the committee members. He testified he had reviewed S.B. 2 and knew John Robbins of the U.S. Marshal's Office and Robert Cose, Deputy U.S. Marshal, who were present to testify regarding the bill. Being from Clark County Mr. Graham offered to help them. The law enforcement people from the United States Marshal's office were actually the first established law enforcement agency in the United States, having started back with appointments from George Washington. There are 22 U.S. Marshals in Nevada. Where there are needs, the U.S. Marshals from other states come into Nevada's jurisdiction to assist in law enforcement.
Mr. Graham supported what the marshals requested; to add them to the list with the F.B.I. and the Secret Service as to the law enforcement people entitled to make arrests without a warrant under certain circumstances. The reason for this request was because as part of their duties they investigated and sought federal fugitives. Frequently when found, these fugitives were not alone, but with other people. Very often these other people had not federal warrants, but local Nevada warrants. The marshals were able to arrest and process a federal prisoner, but were not authorized to arrest and fully process that person under the Nevada warrant. Also, they could detain the people, but could not take them directly to the detention facilities, but had to call the metropolitan police department or the Washoe County police department. If they could complete the process it would eliminate a step. Mr. Graham was not sure why the marshals were not given these powers to begin with. He assumed it was just an oversight at the time.
John H. Robinson, United States Marshal and Robert Cose, Deputy United States Marshal gave oral testimony. Mr. Robinson advised Mr. Cose had been a cadet for 3 years, a policeman in South Dakota for 14 years and a deputy marshal for 7 years. During his career of 7 years with the marshal's service, he had encountered situations where he needed this extra power. Mr. Robinson felt Mr. Cose should be at this hearing to answer any questions the committee had. Mr. Robinson advised one thing S.B. 2 would do for the deputy marshals was protect them if they were, for example in a 7-11 market and a robbery occurred. The deputy marshal would be a private citizen standing there. If the the deputy should attempt to arrest the perpetrators of that crime, the marshals would have civil matters to face, and so forth. They were asking for that protection, basically to assist the local police departments. Mr. Robinson had five deputies in Los Angeles when the King situation occurred and three deputies in Florida during Hurricane Andrew, assisting in both cases. The only way those people could make arrests for whatever they might have observed was by a governor's proclamation, which was time consuming. The marshal's office is simply asking for those powers to basically help the local authorities. He had six deputies in the Reno office and 16 in Las Vegas, which would be 22 more policemen out in the community to help the citizens of the state.
Senator Smith asked what the situation was in other states.
Mr. Robinson had his chief deputy call their headquarters that morning. The deputy talked with the director, Henry Hudson, who advised there were 10 other states in which marshals had these powers. Those were all basically small states like Nevada. They had found in districts such as Los Angeles and New York it was so confusing to try and get the bill passed, they had not attempted it. Director Hudson said when he was attorney general for the state of West Virginia he drafted a similar bill himself for that state, and was in favor of it to the point where he was going to issue a directive to ask all marshals throughout the United States to attempt to get these powers.
Senator Shaffer asked if this meant if he was going home at 3:00 p.m., driving about 80 miles an hour and he happened to pass the marshal, the marshal could pull the senator over.
Mr. Robinson said they did not do any traffic stops.
Senator Jacobsen asked when they were out trying to apprehend somebody who is on the national list, did they carry a warrant for that person.
Mr. Robinson answered yes, they carried a federal warrant. One of their primary functions was to apprehend federal fugitives. It was during those situations they encounter these other individuals that had local and state warrants outstanding or had commited state crimes.
Senator James asked how many warrants they would carry at one time.
Deputy Cose answered when they were tasked with looking for a fugitive, they earmarked that fugitive. Normally the deputy assigned to it would go out with the warrant in hand. It was common practice that birds-of-a feather flocked together. When you got into a residence or area where an individual was employed, lives, or hangs out, just for the officer's safety it was common practice to run a local background check on other people found there. If the marshals discovered an individual was wanted either by the Reno Police Department or the Washoe County Sherif's office, they could not act on it because it required a local officer.
Therefore, all they could do was gentlemenly detain the prson until a local authority arrived. Quite often the officers would place them in their car and therefore could have the fugitive they were seeking and apprehended off of the federal warrant, and have a local man sitting next to him in the car. The officers could not turn the wheel because they would then be transporting the local person and would have him in constructive custody. S.B. 2 would avoid a lot of duplicity and enhance local law enforcement. It was not the marshals' intention to initiate new investigations because of these powers; it was just very difficult when someone had been a police officer all their life to run across the bad guy and not to be able to do anyting with them because the marshal did not have authority at that point in time.
Senator Jacobsen wondered in the case of the 7-11, where the marshal is witness to an incident and then was an accessory in a sense, if the marshal would have to appear and testify, and would that be agreeable with their boss? The officer might get involved in a long trial.
Mr. Cose answered that as law enforcement officers they were accustiomed to testifying and looked forward to having cases where they could testify. This would never be a problem. He also elaborated on the safety factor. Frequently when a deputy took a suspect in an apartment comple and detained that person for an hour or an hour and one-half, waiting for Metro or whatever police agency or jurisdiction they might be in, the situation became involved and it could be very dangerous to the deputies.
Mr. Robinson advised he was involved in two incidents where he reacted to the situation. The first involved a gentleman who took a lady's wallet out of her purse during an event at Cashman Field in Las Vegas. Mr. Robinson detained him until they got hold of a security guard at the building who called the Metropolitan Police Department. An officer came and took the suspect into custody after Mr. Robinson made a citizen's statement. Mr. Robinson was subpoenaed three times to appear in court. The subpoena and appearing in court is part of their routine function; it is part of their job. But the officers were also there and it would have simplified things if Mr. Robinson could have just told the suspect he was under arrest. That incident was in 1989. The second incident was in 1990. Mr. Robinson observed, outside of one of the hotel casinos, an assault on an elderly man and his wife by two individuals. There were several other citizens that responded, probably six persons including Mr. Robinson had a footrace with the two suspects. Mr. Robinson was able to apprehend one of them. Again, he was subpoenaed on numerous occasions trying to keep track of the case strictly as a witness because, Mr. Robinson detained the suspect on the ground in the parking lot, and waited in that position for about 25 minutes until they could get a uniformed car to the scene. Mr. Robinson could not take the suspect into custody, nor could he move him. All he could do was talk to him and convince him not to resist or to make any other movements at that point in time. He simply did not have the authority on the local level to make the arrest.
Senator Jacobsen asked if, with the authority sought, the marshals could aprehend anyone, take them into the county jail and book them?
Mr. Cose said that was correct. He recalled a situation about 4 years ago, with a deputy who had since retired. Mr. Cose and the other deputy had walked downtown in Las Vegas for lunch. They walked past a bank, and someone ran out of the bank with a bag in his hand. About 10 or 15 seconds behind him was an individual known to the deputy as an FBI agent, running behind the first man. The FBI agent gave chase, and being one on one lead the deputy to believe a bank robbery had occurred. Mr. Cose did not know whether the bank was federally insured. If the deputy would have gotten involved he would not have been covered because if the bank was not federally insured, it was not a federal crime.
Senator Jacobsen realized that anybody in law enforcement probably knew most of the marshals' colleagues, but asked if it was possible for an imposter to pose as a colleague, siphon the person off and then rob him or her.
Senator James affirmed to Mr. Cose he was referring to a person posing as a deputy United States Marshal.
Mr. Cose affirmed there was always that possibility, and it had occurred. However, the marshal's credentials were numbered and if for any reason they were stolen, misplaced or lost, the marshal had 24 hours to notify their headquarters, at which time the information went out nationwide to all their offices that this set of credentials was gone and unaccounted for.
Mr. Robinson showed the committee members his credentials.
Senator James asked what a deputy marshal's power was currently, to make warrantless arrests. Could they not make a warrantless arrest of someone who committed an offense in their presence?
Mr. Robinson replied this could occur only in a federal crime.
In response to Senator James' question, Mr. Robinson answered this was derived constitutionally.
Senator James asked if there was a law passed by Congress in the Code of Criminal Procedure that gave the marshals that authority.
Mr. Robinson answered there was a law covering their duties and powers, but could not cite it.
Senator James asked if what they could do at that time was execute a federal warrant and make a warrantless arrest under the circumstances allowed by the federal constitution and the law.
Mr. Robinson stated that was correct.
Senator James affirmed they could not make any kind of a warrantless or a warrant arrest if it was a state crime, and the marshal had to make that decision when they saw the crime committed.
Mr. Robinson affirmed that was correct, strictly in that capacity as a private citizen, and the marshals would have to make that evaluation as to whether they wanted to jeopardize their position and get involved. The downside would be their subjection to civil liability for having made an arrest, not necessarily outside their authority, as they are covered under the color of the law for authority on federal crimes. In a state situation in which a state crime occurred, the marshals do not have the power of arrest, therefore they are not covered under any color of authority. They have the same powers as any citizen. They could make a citizen's arrest, where the suspect is detained, a citizens' report is made, and a complaint filed. But again, it was a matter of duplicity and there were civil ramifications that could be there, if the marshals acted as trained law enforcement officers without that color of authority.
Senator James stated what he was concerned with, and S.B. 2 would give the marshals if passed into law, was not the power to execute state warrants, but the power to make a warrantless arrest under color of state law. He asked Mr. Robinson if that was correct.
Mr. Robinson stated it would have to go hand in hand.
Senator James asked if the particular proposed legislation dealt only with warrantless arrests.
Mr. Robinson answered it also stated "when a warrant has been issued".
Senator James asked if that would still not be a warrantless arrest. It says "without a warrant", but that means the warrant was not in their possession, but they knew it had been issued, and so they make it without. The only time a warrant arrest was made was when they actually had the warrant.
Mr. Robinson answered an arrest could be made without a warrant as long as the officer had knowledge of the warrant in existence.
Senator James affirmed it was still considered a warrantless arrest where they would need the statutory authority.
Mr. Robinson affirmed this was correct.
Senator James asked if Mr. Graham could respond to the question, if the committee were to pass S.B. 2, which on its face seemed to be prudent because these other federal officers who acted in this fashion also had this authority, how that would affect the State of Nevada with respect to liability from wrongful arrests or whatever might occur. Senator James knew there might be federal laws dealing with their liability or insulation therefrom, or the federal government's insulation for actions, but if they were acting essentially on behalf of the state of Nevada to execute an arrest for someone who had committed a crime against the people of the state of Nevada rather than the federal government, was there some concern regarding liability that the state might incur?
Mr. Graham did not see anything really significant other than the liability which might occur if an F.B.I. agent did something inappropriate. He could not think of any consequence that would be adverse.
Senator Jacobsen asked if there were any exceptions to the marshals' authority on the federal level, and could they go on a military base or an indian reservation?
Mr. Robinson replied on any federal property, within the United States and its territories they had authority of arrest, including Hawaii, Alaska, Guam and the Virgin Islands. Any federal lands whatsoever, or public lands.
Senator James asked, if the five deputies referred to earlier were in Los Angeles because California did not have a similar statute.
Mr. Robinson answered no, it was simply to help out manpower-wise. They just did not have enough deputies down there to handle the situation. They loaned deputies around quite frequently.
Senator James affirmed Mr. Robinson was not suggesting this law be passed for extra territorial jurisdiction on our deputies to make arrests in L.A. or Florida. The people in those sates would have to do that, and this was simply given as an example.
Mr. Robinson stated the examples given were the most current events in which nationwide deputies were pulled to respond either to a civil disturbance or civil disaster. In Florida it was a civil disaster with Hurricane Andrew, and in Los Angles it was the Rodney King riots. In both instances, the deputies went to enhance local law enforcement, on behalf of the federal government, responding to the basic cry for help from the local government. A governor's proclamation was needed to give his deputies the authority they were trying to get through S.B. 2 to avoid that in the future. Again since the U.S. Marshal's office had in excess of 100 specially trained deputies that respond to high threat situations, they were on a 12-hour notice. For example, if an incident occurred in Carson City, and it was beyond the scope of the local or state authorities, they could make the request to the federal government for assistance through Marshal Robinson and within 12 hours 100 highly trained deputies could be here. The only problem was, for them to go out and insure the safety of the public they would have to get a governor's proclamation to give them the authority to make an arrest on a local warrant, or a probable cause arrest if they observed a felony or a gross misdemeanor occurring in their presence.
Senator McGinness asked regarding the examples cited, were there any cases where they actually had to turn a person loose that knew had committed a crime; or was it just that they had to wait for the local jurisdiction.
Mr. Robinson responded in the 7 years he had been assigned to the Las Vegas office he was not aware of a situation where they had to release someone. Sometimes he would be treading on very thin ice civilly, to where if he ran into an individual on the street and found he had an outstanding warrant against him or her or was wanted locally, Mr. Robinson had been able, without pushing the issue, to detain the suspect or restrain them from leaving. If an individual said he or she was leaving, Mr. Robinson would have to physically restrain that person, and to do that would be placing his civil liberties in jeopardy. Mr. Robinson did not know whether he would be willing to do that currently, the way the courts had been ruling.
Senator McGinness asked about a situation where the deputy was observing a person they had a warrant for and knew that he or she was living with a couple of other persons that had a state warrant, then did the deputy cooperate with the metropolitan police, for example go into the situation together.
Mr. Cose answered they did this. Because of the fact the marshals do not have a uniform and do not have marked police cars, there had been numerous occasions when he had gotten hold of a Las Vegas Metro Police Department if he had a known subject there that had local warrants, or even if he felt there was a possibility of a threatening situation if the subject he was after had a weapon and lived in an apartment complex. He certainly would want to notify the local units to be there. He had taken them in with him on arrests. If he knew an individual had a local warrant and lived there, quite often he would try to coordinate with the local city marshals or Las Vegas Metropolitan Police Department to have someone there that did have the authority. But regretfully, often as not it was going to end up being two deputies that were assigned a fugitive case would stumble across a John Doe that had several warrants on him, and everything had to stop for whatever period it took to get hold of the local authorities to come out and get him, because it really was frustrating to work a case and then have to let someone go. His department had been lucky in the fact that they had not had to turn them loose.
Senator Jacobsen asked when the marshals detain or apprehend somebody, did they have to read them their rights of any kind, or indicate what they were doing.
Mr. Cose replied as a general rule they were read their rights; the current version of the Miranda Rights. Realistically, their rights did not have to be read to them unless they were going to be questioned about the crime. For practical purposes it was nice that they were aware of their rights in case they wished to make a voluntary statement. But generally at time of arrest, they would be read their rights. Regarding an individual, if it was off a local charge, they advised them there was an outstanding warrant for them and Metro or the Sheriff's office was on the way, whatever the case, and as long as they did not push, we would not volunteer.
Senator Jacobsen asked if the marshals had the right to frisk the subject.
Mr. Cose answered only for an officer's safety purposes.
Senator James stated he believed this would seem to leave a rather strange situation in that the marshals had the power to make an arrest without a warrant on a state offense. For example, under subsection 5, if they were aware there had been a warrant issued, and thought this was the person who committed the crime described in the warrant, then they could arrest that person. But they did not have the power to make an arrest with a warrant. He asked Mr. Cose to confirm that they would not be executing warrants on behalf of the state.
Mr. Graham answered an arrest warrant was directed to a specific group of people. Normally the U.S. Marshal did not fall in that group. It said "Las Vegas Metropolitan Police Department, or any peace officer". Then they got into who qualifies as peace officers, and that was another question.
Mr. Cose added they would not be receiving notifications of new warrants. If list of warrants was issued, local authorities would not give them to the marshals, and it was not the marshals' purpose or idea to initiate investigations off of local warrants. Their purpose would be that if, during their travels and investigations, they came up with an individual that had a local warrant on him that they would be able to react.
Senator James affirmed that basically, exigent circumstances was what they were trying to address. He pointed out that the way arrests were made sometimes had a huge bearing on the criminal prosecution that followed.
Mr. Cose agreed that was correct.
Senator James added it had become such a labyrinth of little things they had to do right or else the person could be released from prosecution. Therefore, he was interested in the background and training of U.S. Marshals. He asked if the marshals undergo civil and criminal procedural training.
Mr. Robinson generally answered the question, and stated Mr. Cose could go into the specifics. The federal government had numerous applications for secret service or what-have-you. The marshals' headquarters at any one time had 3,000 to 5,000 applicants at one time, wanting to join their service. They had limited slots; the applicants had to pass a quite extensive written examination, oral interviews, and then they have an academy at an ex-Navy base at Godenco, Georgia, where they went through 14 weeks of training. They were then on probation for a year, and then went through more or less recruit training for a period of 3 years before being accepted as a full deputy marshal.
Mr. Cose continued, saying the 14 to 16 weeks of training they had at the federal academy was broken into two categories; the first being criminal investigators' school; the second being a deputy U.S. Marshal's school. The portion that involves the deputy U.S. Marshal was hands-on regarding the technique they used, their procedure. That was more of a physical course. The criminal investigator was law enforcement training. They must be certified as a criminal investigator before they are allowed to proceed into the second phase of the training. It was quite extensive law training. It was a guess on his part, but felt he could safely say between 60 and 70 percent of their staff were prior law enforcement people, either police officers, deputy sheriffs or highway patrol. That many alone had some prior training in law enforcement. In most states they are required to be certified as a law enforcement officer within their first year. The marshals' training was the academy and they would receive this training prior to their employment as a deputy U.S. Marshal.
Mr. Robinson added, additionally, in the special organization that Deputy Cose mentioned there were 140 deputies. They go to a camp in Louisiana and get 4 additional weeks of training. That training was severe enough that 50 percent of the class was washed out, and does not make the grade. He had three of those deputies in his unit in Las Vegas, and they were known throughout the United States. He had the special unit deputies that got involved with the situation in Idaho, in which one was killed. Those were special deputies, specially trained.
Senator James thanked Mr. Robinson and Mr. Cose; he wanted to make that record.
Paula Treat, representing two groups, the Peace Officers Research Association of Nevada, which was basically all of the northern Nevada police, except for Carson; and the Nevada Judge's Association, which are all the lower court judges, gave oral testimony. She stated she was almost always opposed to the advancement of more peace officer powers. This bill was a little different case. She still had apprehensions. There were so many peace officer powers out there, but at the same time, all agencies were limited on funds and staff. She felt it was not going to be a problem to extend these powers. However, it was one of probably 20 bills the committee would hear from others who also wanted extended powers. What she would really like to see was see reciprocation; other law enforcement people to have the powers that the Marshals have. She did not know if anything could be done about that. She would say that they are deserving. On S.B. 3, since there was no testimony on the jails, the Northern Nevada Police Officers would like first right of refusal because she thought they did have some jail issues, and asked the committee not to put it too far down in the drawer. Her organizations might want to ask for permission to kidnap that bill.
Senator James stated if Ms. Treat wanted the committee to take a greater look at S.B. 3 than had been done, because we were asked not to consider it, for her to please let him know.
Ms. Treat stated it would have nothing to do with it, except "jails" would be the only word that repeats itself.
Senator James stated in that particular language, she was free to ask for any other legislation she wanted along different lines or if she wanted the committee to look at that he did not intend to kill it other than the fact that the proponents wanted to do that. There was no one present to talk about it.
Ms. Treat stated it looked like a perfect spot bill for them.
Senator Jacobsen asked what she saw might be an abuse of S.B. 2, if any.
Ms. Treat replied in the area of marshals it was different; they had so many more powers than even her police officers had. They did not need a search warrant to go into houses, and a lot of things they did not have to do they can do on their own. It was a lot of power that her police officers did not have. That did not worry her as much as some of the other groups do, who had never really gone to the academies or studied as well as some of the law enforcement groups do and then ask for peace officer powers. Her biggest worry was when there was an abuse in law enforcement, they are all painted with the same big brush, so obviously we do not want the wrong people having powers; obviously in this case I would hope the marshals would not abuse it.
Senator Jacobsen asked if Ms. Treat would be concerned about police brutality, and was she concerned with enhancing that.
Ms. Treat said she was not concerned with this. But there were also people in the position of marshals, others coming from out-of-state who would not know our community that well. The people here had been 7 or 8 years in Nevada, and things were done a little differently here, the same tactics were not used as in other states, such as California or New York.
Senator James perceived this, not as an expansion of powers but more as a protection of the public and the officers. The marshal would have the ability to apprehend someone who committed a crime in their presence or someone who they had information to believe committed a crime, and a warrant was outstanding. He asked for a comment from Ms. Treat on this.
Ms. Treat agreed, and said if one wanted to play devil's advocate why not give powers to all the 7-11 people. Anyone having full peace officer powers would have the ability to assist law enforcement in Nevada. It was her consistent stand to be sure they are warranted. At that time, sheep inspectors had partial peace officer powers. Last session in this committee, this issue was reviewed by Senators Smith and Titus. Over 150 groups had peace officer powers in the state. When brand inspectors had these powers, it made a person wonder where to stop. She did not want to jeopardize S.B. 2 and thought it should be passed. She simply wanted to let the committee know she would be before them again asking that other bills do not pass.
Senator James agreed this was different as it dealt with officers, as both Mr. Cose and Mr. Robinson described who had excellent law enforcement training, probably beyond anything most other people with peace officer powers had, or at the very least equal to it.
Mr. Paul McGrath, Carson City Sheriff, representing the Nevada
Sheriffs and Chiefs, stated the United States Marshals had been in existence since the constitution was formed and provided a vital function to the court system and serve their warrants. That was basically their area of responsibility, not going out like an F.B.I. agent going out onto the streets at all times, investigating. But a United States Marshal does have specific duties in the Code of Federal Regulations. Regarding Senator Shaffer's comment about the marshal passing him while driving on the highway, yes the marshal could make an arrest. Whether he would or not would be a different story. They should be granted that peace officer status.
Senator James asked if that would mitigate against them.
Mr. McGrath replied if the marshal was granted peace officer status in Nevada that would be a misdemeanor committed in his presence for which he could take action as a sworn officer.
Senator James closed testimony on S.B. 2, and advised this bill would be brought up in a working session.
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The hearing was opened on S.B. 43.
SENATE BILL 43: Limits time certain warrants of arrest remain valid. (BDR 14-74)
Senator James advised this was Senator Neal's bill; Senator Neal had been advised the bill would be heard. Senator James had received no written testimony on S.B. 43, and advised essentially it was to place a time limit of 1 year on misdemeanor warrants, which did not currently exist in the statute.
Paula Treat, representing the Peace Officers Research Association and the Nevada Judges gave oral testimony. Ms. Treat stated she felt there was probably no one in law enforcement or the judicial system supporting S.B. 43.
Senator James asked if there was anyone present to testify in favor of the bill, and as there were none, asked for testimony from the opponents of the bill, and advised he would have Mr. Neilander ask Senator Neal to testify.
Paul McGrath, Sheriff of Carson City, representing the Nevada Sheriffs and Chiefs presented oral testimony. His organizations were opposed to S.B. 43 because it would take a lot of judicial discretion away from the judges, and also the officers who were making those arrests. If someone knew Nevada had a law on the books saying all they had to do is stay clean for a year, or move out of state, any warrants issued for a misdemeanor would no longer be valid. The judges already had that discretion if they wanted to pull the warrants they could do so after 1 year.
Senator James stated something which occurred to him in reading the bill was the language says " . . .and may not be reissued." That seemed a little draconian.
Mr. McGrath stated if certain actions for which the warrant should be pulled could be specified, that would be different. The way the bill was written did not make any sense to law enforcement.
Senator James agreed. The judge had the power to state a limit in the warrant if he or she wished to do so.
Mr. McGrath added the limit could be stated even after the issuance of the warrant. If the judge decided he or she wanted a warrant pulled after 6 months, this could be done.
Senator Jacobsen asked how Mr. McGrath's department catalogued the warrants. He wondered if they were done by classification, for his troops to know the warrants were pending. He assumed in a year's time they would have quite a few, wondered about how many.
Mr. McGrath advised the department had two or three identifiers. First, they use the person's name and any identifying information such as date of birth of social security number; something to identify the person the warrant is issued for so the officer had pertinent information so as not to become confused and arrest the wrong person. In his department they kept warrants in alphabetical order, for department warrants issued out of their jurisdiction. State warrants were issued by notification to the records repository.
Senator Jacobsen asked how often the troops observed those warrants.
Mr. McGrath answered his department validated their warrants once per year.
Senator Jacobsen asked if, for example, a officer had been on the force 6 months and a warrant came in on the seventh month, or if the officer had been on leave, would he have to come back and review those warrants to know what was current.
Mr. McGrath replied this would not be necessary. If an individual officer stopped someone on the street or someone called in and notified the department there was a warrant for a person, and the officer did not know that, he would only have to check with the department's central location to determine whether there was an active warrant.
Lieutenant Jim Nadeau with the Washoe County Sheriff's Office gave oral testimony in opposition to S.B.43. One thing not listed in the bill was what warrants would be pulled. They had to be concerned about things such as Driving Under the Influence (D.U.I.) and failure to appear, and so forth. If an individual made bail and then did not appear in court, under S.B.43 the judge could issue a failure to appear warrant and the individual would have no incentive to appear in court. That person could also be gone for a year, and everything would be gone. Nothing is mentioned in the bill as to an exemption for domestic violence. There is a lot of confusion, and he believed passage of the bill would be opening a can of worms that everyone needed to be concerned about.
Senator James asked if S.B.43 was drafted only to cover misdemeanor warrants in the area of traffic laws, watercraft and wildlife violations.
Mr. Nadeau understood it to be misdemeanor as a blanket-type situation. There were certain traffic offenses, for example D.U.I. falls under the traffic code in Nevada Revised Statutes (NRS) 484 which were the motor vehicle violations. He did not understand what the bill encompassed.
Senator Jacobsen asked if Mr. Nadeau could give an indication of a percentage of warrants never finalized.
Mr. Nadeau advised he did not have statistics, but knew that under the CJIS system there was a validation period. His department had to periodically validate any warrants entered under the CJIS system. Additionally at some point the department went through to attempt to weed out warrants in their files. At that point, they would have to go to the court to have the warrant quashed or withdrawn.
Senator Neal presented testimony as the proponent of S.B. 43. He stated he introduced this bill based on a factual situation where the brother of his secretary who had come from Denver about 5 to 6 years previous. While the young man was in Las Vegas he received a traffic ticket, and subsequently moved back to the State of Nevada. One day he was stopped by the police who ran a search and discovered the outstanding traffic warrant. Under the rules and procedures of the Municipal Court in Las Vegas, bond could not be posted on an outstanding warrant. The person had to be taken to jail. Senator Neal asked how long those warrants were supposed to remain in existence, and was told indefinitely. He believed, in the case of a traffic ticket, the warrant should be wiped out at some point in time. He did not believe this was like someone who had committed murder, nor was he referring to the serious violations such as drunk driving, where bodily injury might be involved. But if someone was cited for driving 30 miles per hour in a 20 mile per-hour-zone, or did not appear, as in the case he gave, that remained on the record indefinitely as a warrant against that individual. In the case of his secretary's brother, the young man actually showed up in court and the court told him everything was taken care of, and he went back to Denver. When he returned to Nevada he was stopped and it was discovered the warrant was still outstanding, so the young man was taken to jail. S.B. 43 was to limit those particular warrants as to the time in which they could be served. Senator Neal believed this would make an improvement particularly in the civil law, containing the traffic tickets.
Senator Jacobsen stated after having heard Senator Neal's testimony on the floor of the senate that morning, he came to the conclusion, which he already had, that he wanted to see everyone treated equally. Possibly trying to determine how many warrants were never finalized, he guessed realizing whenever the crime was, it was legitimate 5 or 10 years later. He realized many years ago after a certain period of time a bounty was created. He did not know whether that ever generated 100 percent compliance or not. He asked whether Senator Neal saw any merit in a warrant taking a different status, but still had the right of arrest.
Senator Neal answered he was talking about misdemeanors, and the bill asking these misdemeanor warrants expired within a 1-year period. Two years could be put on, but he did not want it to be effective indefinitely. He heard the previous testimony which stated the departments cleaned out their records. When he called the courts he was told by the municipal court the warrants remain until the individual came in and took care of them. A lot of people were in the community and one day they got a traffic ticket or something similar, a check was run on them and they were in jail until they could pay the fine. The only thing he was asking was a limitation be put on a warrant, not necessarily the 1-year he has suggested, but some limitation.
Senator James stated he could appreciate the anecdote Senator Neal gave, and that seemed an extreme situation. The concern of law enforcement was this might be broader than appropriate. Senator James reaffirmed his earlier question that this would only apply to traffic offenses, wildlife violations and motorcraft violations. Rescinding that earlier opinion, he cited the statute, saying, " . . .a warrant issued on a complaint or a citation issued pursuant to those sections". Therefore, this referred to any misdemeanor, which took in a huge scope of crimes; everything from domestic violence situations through traffic violations. It may not be appropriate to have a time limitation for those warrants. He asked if Senator Neal's particular concern was the traffic citations as opposed to other types of misdemeanor crimes, and should the committee consider a different bill addressing traffic citations, would Senator Neal be in support.
Senator Neal answered it was a traffic situation which led him to introduce this legislation. The bill draft request was made on that basis, and was not to consider other complaints or fines which might be found within or come under this statute. He pointed out Nevada had a statute of limitations on crimes in NRS which covered a variety of laws and actions of individuals. If a person committed a crime, there was a statute of limitations. If the required action was not accomplished within a certain period of time it no longer applied. He believed this particular case involving a warrant should be looked at in the same terms as the statute of limitations and put a time limit on those particular actions which involved traffic violations.
Senator James advised the filing of the citation tolls the statute of limitations, and affirmed what Senator Neal wanted was an outside time limit on the execution. Regarding tourists coming to Nevada and then leaving the state, he wondered whether S.B. 43 would cause someone to come here and then think if they stayed away for a year they could come back and avoid consequences. He supposed if the time limit was longer, possibly 2 years, that might address this particular problem. He would not want to pass a law which would allow people to think they could commit traffic offenses in Nevada and simply because they would not be back for a year they could come back with immunity later. He knew that was not the situation of the person Senator Neal referred to, but may well be in others.
Senator Neal stated he was not tied to the year, but only the limitation. As the committee chose, the time could be 1, 2, 3, 4 or 5 years. There were currently no limitation on the statute. He believed some type of limit was needed.
Senator Smith stated he had a friend who was the president of the bank in Laughlin, Vince Lundquist. One year previously, Vince was in New York with his wife celebrating their 50th anniversary and his wife's high school reunion. Mr. Lundquist went to Cooperstown while his wife was at her reunion and passing through a small town was arrested for speeding. He was told the court was not open that day but they would send him a bill. A few days later back in Nevada, Mr. Lundquist received a bill and sent a cashier's check to pay it. Approximately 6 or 7 months later, he appeared at the Department of Motor Vehicles to renew his driver's license and was told he did not have a driver's license. Asking why, he was told there was an outstanding warrant for his arrest in New York. Mr. Lundquist told the department he had receipts showing he had paid the ticket, and the following day brought back the material to the department. The department told him they had no proof the warrant number on his warrant was the one he paid. Senator Smith had some conversation with the Motor Vehicle Department. They said there was no way to escape that situation because Mr. Lundquist's warrant was not appropriately cleared. Senator Smith asked if Senator Neal's concern addressed a situation such as this.
Senator Neal stated S.B. 43 does not address the situation Senator Smith recalled, however the problem is the same. He assumed if that situation occurred in the State of Nevada, S.B. 43 was law, and the time period had expired after that person had received the warrant, the driver's license would have to be issued. That is another derivative of the argument. Another state was dealt with which would have to enforce the law.
Senator James thanked Senator Neal for his testimony, and asked for further testimony on S.B. 43.
Nile Carson, Deputy Chief of the Reno Police Department provided oral testimony. He stated his department was opposed S.B. 43 as it stood. He believed it was unfortunate in cases where administrative remedies seemed to have failed, a law must be passed. Responding to Senator Jacobsen's question regarding the length of unsolved warrants, Mr. Carson's department found in their last review of over 10,000 warrants in their files, 80 percent were served in the first year, and then graduating down over the next 5 years, all but about five percent were served. Therefore, the closer to the issue of a warrant, the more served. To take care of those numbers of warrants, with the new CJIS system in Nevada as it stood, within 90 days after a warrant was issued into that computerized system a check was sent back to the issuing agency to review whether that warrant was still good. Annually from its date of issue, each time it was sent back to see if the warrant was good. In each of those cases, the courts, prosecutors and police department had to make an attempt to see if those warrants were still prosecutable. This applied, not only to felony offenses but misdemeanors. That should probably be the single determining factor, whether the warrant could still be prosecuted. Whether witnesses are still there, and the issuing agency can prosecute and bring the warrant before the judge to get a determination should be the most reliable way of handling this. Mr. Carson was also aware of the efforts in Clark County to purge their warrant system, which had been done extensively over the past 3 years. Most major jurisdictions, for example, the Washoe County Sheriff's Office, the Washoe County District Attorney, the City Attorney, the Sparks Police Department, the justice and district courts were engaged in a monthly review of the warrants which had come into their filing systems to be certain they were still prosecutable. He believed most entities throughout the state were acting very responsibly in trying to call the warrants which were not prosecutable and only keeping those which were.
Senator Shaffer asked whether this procedure ran up the cost for Mr. Carson's department.
Mr. Carson replied to find the individual, his department did not re-initiate an attempt to contact the suspect, but they did check to be sure the witnesses were still available and the prosecutors and judges still wanted to go with the warrants.
Senator Shaffer reiterated it still must involve additional cost as to manpower.
Mr. Carson stated they considered it a normal cost of keeping records, as to why they and the others have done this.
Frank Barker of the Las Vegas Metropolitan Police Department gave oral testimony. He stated, in deference to Senator Neal's testimony, he had about five areas of concern regarding S.B. 43. The first was it covers all misdemeanor warrants. The second was concern in areas of D.U.I., domestic violence and batteries which have an injured victim who is interested in justice and the violation is short of a felony or gross misdemeanor, of which his department sees many such cases. If the warrant was canceled within a year and not be allowed reissue, the victim would be denied their day in court with the person who victimized them. Thirdly, he saw an officer safety issue. Regarding when the warrant was issued, if a person was trying to avoid service of the warrant as referred to by Lieutenant Nadeau, and an officer stops that individual and runs a check, it would come back the person was not wanted, but the person would not know that. That person might be looking for escape opportunity, and the officer had let his guard down because he believed he was dealing with someone who was an upstanding citizen. As Mr. Carson said, Mr. Barker's department employed a number of people to validate warrants on a regular basis. In D.U.I. and domestic violence situations they did assure the victims or witnesses were still available for testimony. If they were not, his department actively sought the recall of that warrant for a case no longer prosecutable. Regarding the tourist nature of Nevada, if a tourist only came once every other year and the warrant was recalled after 1 year, that person had created danger on Nevada highways and to the citizens that would go unpunished. The statute of limitations did not have effect on this, and without trying to put words in Senator Neal's mouth, Mr. Barker believed many of the situations he referred to were offenses with fixed fines, and are actually less than a misdemeanor violation. In some of those there might be merit to the suggestion of recall after a set period of time. He believed a year was too short.
Senator James asked Mr. Barker to comment on the reciprocity issue raised by Senator Smith, also a concern to Senator James. He did not see why Nevada should have a period of limitation on traffic offenses for services of a warrant if no other state does this. He was opposed to people being able to travel through Nevada and commit traffic offenses, then go back to their home states; whereas a Nevada citizen traveling in another state did not have the same insulation from liability after a certain period of time. He would be interested to learn whether other states had these types of laws. If so, it would be more appropriate to put in some type of reciprocity so Nevada was in line with other places. He did not want Nevada to become known as a place where a person could commit a traffic offense, and if that person did not go back to Nevada for a year or 2 years they would be immune. The language says " . . .shall not be reissued."
Mr. Barker did not know about other states, but agreed with Senator James regarding the person being a danger on Nevada highways and, presuming he or she drives that way habitually, is a danger in his or her own state as well. If that person could escape Nevada laws with impunity and his or her driver's license is not affected because of Nevada law, yet Nevada's citizens are affected in reciprocity. He had a problem with Nevada citizens not having the same insulation. There are many mistakes made, such as in the case Senator Smith mentioned. His advice to anyone he knew going to court was to hold onto their receipt for a long time showing the case was dismissed or they had paid their fine. He did not know what the solution to trying to connect a receipt to a warrant, but did not think S.B. 43 would solve either that problem or the one he thought he heard Senator Neal describe.
Senator Jacobsen asked if a warrant was issued and in an intermediate period it was found not be valid, that the person was not guilty of the offense, would anything be done to expunge the warrant.
Mr. Barker stated his experience was not with traffic, but other crimes such as larceny. He did not know how often this would happen in the case of misdemeanors but in any case if his department found they had wrongfully charged an individual they would have an obligation to correct the situation and recall the warrant.
Senator Jacobsen asked if that could be done without a court order.
Mr. Barker answered his department sent requests for recall warrants through the district attorney's office, and then the judge recalled the warrants.
Paul McGrath, in addition to his earlier remarks stated his organization was still opposed to S.B. 43, and that there were a couple of things that had not been considered. If a warrant was issued for failure to appear, that person had not gone through the court system and there would be no impact on the driver's license, with the exception of reckless driving. If a warrant was issued for failure to appear on that offense, there would be no way to identify that person in the driver's license system of that fact, as the person had not been convicted of that crime. There were other sides to this issue besides having the year period of time for the misdemeanor warrant.
Senator Shaffer asked if it would be possible to put a statute of limitations on speeding and parking violations only, within the State of Nevada.
Mr. McGrath replied he felt that would be asking for trouble. Even if there were a 5-year time limit, a person who speeds may not do so intentionally but there are many who do and those people needed to be identified. If they know in Nevada they could speed all they wanted and if a warrant is issued they would only need to stay out of the state. Parking would be a little different situation. The person would have to be notified, he believed three times, before a warrant could issue.
John W. Riggs, Sr. of the ancient order of E Clampus Vinus requested an opportunity to present testimony. A situation happened to him which might give the committee some thought. He went to World War II, stationed at Fort McArthur, where, if a person stayed more than 3 days, it was a strange event. He was there 2 weeks and got a weekend pass, had a car, and was driving around Los Angeles heading home on a Sunday. He was preparing to cross Spring Street and a Southern Pacific train was coming and was about to cut him off. He did not want to wait, so he floorboarded the car and went around the front of the train, which just missed him. A Los Angeles police officer on a motorcycle came around the same train and stopped Mr. Riggs. The officer issued Mr. Riggs a reckless driving ticket. Mr. Riggs had to report back to Fort McArthur, which he did and told his commanding officer what had happened and that he had to pay the ticket. The commanding officer told him not to worry about it, he was a service man and they would take care of it, and Mr. Riggs gave his officer the ticket. Mr. Riggs went to war, came back later, moved out of the San Fernando Valley, moved a couple of additional times and he supposed some of the detectives at the Van Nuys station decided they had nothing better to do, and does not know how they found him where he was, but at 11:30 at night they came to his door. At that time he had a runt St. Bernard and a Great Dane. His mother, wife and himself were getting ready for bed, and he heard the dogs barking. The dogs went up to the gate, Mr. Riggs looked out and saw the two detectives, told him who they were and asked if they could come in. Mr. Riggs told them they could, but not to run. The detectives came to the front door and Mr. Riggs told them the dogs would not hurt them. They told Mr. Riggs they had a warrant for his arrest. He asked what for; he had not done anything. They said in 1942 Mr. Riggs had a ticket for reckless driving. Mr. Riggs told the detectives he had told his commanding officer to take care of that, which he had not. The detective said he had a bench warrant for Mr. Riggs' arrest, the key word being bench warrant, which is issued if a person does not appear in court. Mr. Riggs was told later a bench warrant never dies, which is similar to what the committee was discussing. Mr. Riggs' problem was that at 11:30 at night, he was arrested and taken to jail, and it took his mother and wife until 3:00 a.m. to get the $200 to bail him out. He went to court and was fined $75.00. That is an experience which may happen in the way of a traffic case, and he thought what the committee should really be considering was automobile or traffic situations.
Senator James thanked Mr. Riggs for sharing his story and added there are some compelling cases which everyone hoped are dealt with administratively within a law enforcement agency to try and avoid their occurrence.
Laurel Stadler representing Mothers Against Drunk Driving presented oral testimony. She stated she was in opposition of S.B. 43. Her agency would be opposed to anything which would ease up on the drunk driving considerations. Particularly in backtracking through the NRS sections mentioned in this bill and the ones in the previous section, she came across the same thing Senator James mentioned with the game wardens, the water-craft and the D.U.I. being in the same breath so to speak. It seemed as though these things should not go together. In the traffic statute cited, the drunk driving, the over .10 Blood Alcohol Content (BAC) level and also people charged with refusing to submit the vehicle inspection and driving with too much weight in the car were all mentioned. Again, those did not seem to fall into the same category. With the D.U.I. having the window of 7 years, where we are looking for multiple offenses it did not seem right to limit those warrants in any way when looking for second, third or more offenses in that particular area. When people had mentioned in this hearing about just looking at traffic offenses, she hoped D.U.I. would be excluded from those generic traffic offenses such as speeding, parking tickets, and so forth.
Senator James stated Ms. Stadler's point was well taken and thanked her for her testimony. The hearing on S.B. 43 closed.
* * * * *
Senator James advised S.B. 43 would be brought for vote together with S.B. 2, which would probably be Friday, February 5, 1993. He advised the committee might possibly cancel the bills currently on the agenda for that day, and have a short working session on the bills the committee had already considered, and take the bills then scheduled for hearing February 5 to Las Vegas.
The meeting was adjourned at 3:30 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
February 1, 1993
Page 1