MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 27, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:06 a.m., on Thursday, March 27, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4406, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Lora Nay, Committee Secretary
OTHERS PRESENT:
Robert D. Faiss, Attorney, Adjunct Professor, William S. Boyd School of Law, University of Nevada, Las Vegas
Douglas Walker, Student, William S. Boyd School of Law, University of Nevada, Las Vegas
Jeremy Aguero, Principal Analyst, Governor’s Task Force on Tax Policy in Nevada
Dennis K. Neilander, Chairman, State Gaming Control Board
Bob Service
Allen Newberry, Chief of Operations and Maintenance, Division of State Parks, State Department of Conservation and Natural Resources
Darolyn D. Skelton, Executive Director, Lake Tahoe Shakespeare Festival
Kevin Higgins, Chief Deputy Attorney General, Fraud Control Unit for Industrial Insurance, Office of the Attorney General:
Tom Keller, Sergeant, Internet Crimes Against Children Task Force, Las Vegas Metropolitan Police Department
Tara Shepperson, Ph.D., Executive Director, Cyber Crime Task Force, Office of the Attorney General
Ben R. Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association/Las Vegas
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney
James F. Nadeau, Lobbyist, Nevada Sheriffs and Chief’s Association/North, and Washoe County Sheriff’s Office
Juanita Cox, Lobbyist, People Organized for the Next Generation
Janine Hansen, Lobbyist, Nevada Eagle Forum
Chairman Amodei:
We will begin today with the hearing on Senate Bill (S.B.) 134.
SENATE BILL 134: Repeals prohibition on assignment of right to periodic payments of winnings from gaming. (BDR 41-1105)
Senator Care:
I became aware last summer of the conflict in Article 9 of the Uniform Commercial Code as adopted in Nevada. The current statute prohibits the assignment of gaming winnings, periodic payments except to an estate or, in some cases, to a former spouse. I had intended to seek an amendment when I learned, after I introduced the bill, Bob Faiss, who has appeared before this committee in his capacity as an adjunct professor at the William S. Boyd School of Law, had been working with some law students on this very same issue. Therefore, I will turn this over to Mr. Faiss who will testify on this bill.
Robert D. Faiss, Attorney, Adjunct Professor, William S. Boyd School of Law, University of Nevada, Las Vegas:
I will read my testimony into the record (Exhibit C).
Chairman Amodei:
Your remarks will be made part of our record for this legislative day.
Douglas Walker, Student, William S. Boyd School of Law, University of Nevada, Las Vegas:
I will read my testimony into the record (Exhibit D).
Jeremy Aguero, Principal Analyst, Governor’s Task Force on Tax Policy in Nevada:
I will read my testimony into the record (Exhibit E).
Senator Care:
I just want to compliment both Mr. Walker and Mr. Aguero for their thoroughness. I am impressed with the caliber of students attending the Boyd School of Law, especially in the short time it has been in Las Vegas.
Mr. Aguero, every session we get lexicon in the hallway. One of the phrases you hear battered about in the hallways and the buildings this session is “Jeremy’s model”. It is nice to be able to put a face on the name. Thank you very much.
Dennis K. Neilander, Chairman, State Gaming Control Board:
The panel who presented before you this morning has already covered my testimony. They did an excellent job in explaining the law and the rationale behind the law. We do not have any regulatory reason to believe this repeal is something this body should not go forward with.
Chairman Amodei:
With no further testimony on S.B. 134 we will close the hearing
SENATOR CARE MOVED TO DO PASS S.B. 134.
SENATOR WEINER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
We will now open the hearing on S.B. 282.
SENATE BILL 282: Prohibits and enhances penalties for certain acts concerning alcohol and controlled substances in state parks. (BDR 35-1156)
Bob Service:
I am representing myself. I requested Senator Shaffer to write this bill because of problems at Lahontan State Recreation Area. There are a lot of drunks, a lot of late night drinking parties with loud music, and loud, foul language. If you go and nicely ask these people to please quiet down after 10:00 at night, which is quiet time, you are liable to end up in a fight.
We had a very rough time 3 years ago when I was camping there with my family. There were five young people who had come in after hours, had been camped there all week, had not paid for their camping, and they were partying late into the night. At 11:00 at night we went over and asked them nicely to please quiet down. They told us they were at Lahontan to party, they had been there all week, and they were going to party; if we did not like it, we could leave. We went back to our trailer. They were very loud, threatened to burn our trailer down, and threatened to drive their vehicles through our trailer. At the time there was no way to call for help, as I did not have a cell phone. I had to sit outside with a shotgun for about an hour until they passed out. I could not leave my wife and daughter with the trailer or take them with me and leave the trailer vacant. We sat there all night waiting for things to quiet down. We left early the next morning. At the entrance gate I requested to speak to a park ranger. The park ranger said he was aware of the group, but he did not have any backup and he was afraid to approach them.
When I got home I called the administrator of the State parks and told him the problem and made some suggestions. I suggested he put a camp host in each unit so people who were having problems could have somebody to summon help. Most people are not aware the Lyon County Sheriff’s Office will respond to the park if there are problems. I also suggested a call box system going directly to the sheriff’s dispatch center in Lyon County or in Churchill County. People who were having problems would have a place to go and call for help.
Nothing has been done. The problems are almost always alcohol- or drug‑related. I talked to a friend of mine yesterday who is the assistant commander for the Lyon County Sheriff’s Search and Rescue. He said they spend a lot of time at Lake Lahontan every year due to problems caused by drinking or drugs. I might add, the Division of Wildlife advertises heavily to not drink and operate a boat, but this is often ignored.
A couple of years ago there were four people who went out after hours and were drinking. They got into argument over where they were going to fish. One guy pulled a gun and murdered another guy. It took all night before the sheriffs were able to locate the guy and apprehend him. This is not an unusual situation and so, many years ago, we quit going there on weekends. We were going midweek until 3 years ago when we had our problem. We have not been back to the lake since.
The only thing I can see to solve this problem is to make it illegal to have alcohol in the park. This would make it much easier for park rangers to make an arrest before people have a chance to really get drunk and really cause problems. I do not like the idea of having to tell people they cannot have a drink with their dinner, because I think good people should be able to enjoy themselves when they are out camping.
Something needs to be done. I talked to the administrator last week. When I told him who I was, he remembered talking with me 3 years ago. He said he had an appointment with Senator Shaffer and had to leave to go see him. He told me he was opposed to the bill and hung up on me. That was before I had the opportunity to remind him that he has had 3 years to do something and nothing has been done.
It is rough out there and we need to make the State park available to law‑abiding families who want to go out and enjoy themselves. This is a State facility and it needs to be available to good people and not just to a bunch of hooligans who are taking control of the beaches. My theme is “take back the beaches.”
Senator Nolan:
Is there a park ranger on duty in the area on a regular basis?
Mr. Service:
There are park rangers available during the normal 8-hour day. I understand on weekends they do have a couple of rangers available during the night. People come in after hours knowing there is nobody to collect their fee and they stay all week. Nobody checks on them to find out if they have paid up. These people leave at night or early in the morning when there is nobody at the gate to collect their fees. The State park system is losing a lot of money by not being available to collect the fees.
I realize our State parks do not have a large budget and they do not have the manpower to man the place 24 hours a day, but there has to be some type of control. A campground host could make note of who comes in after hours and the next day notify the park ranger who could then collect fees. The campground host would not cost the State anything except to provide a free campsite. A host in every unit would make it much easier for people to be able to contact somebody to obtain help. I would not expect campground hosts to get involved in altercations; that is not their job
Senator Nolan:
As you indicated, if there is a large group of people, it would probably take more than one ranger to enforce rules and make arrests or evict people from the park premises. If this bill goes forward, we have to make sure somebody is available to enforce these things so we can take care of the problem you are telling us about. We are familiar with problems in southern Nevada also, but Lake Mead is a federal park and federally protected. They make more arrests out of Lake Mead, felony arrests, than all the rest of the parks in the national park service put together. They have a huge law enforcement contingency of park rangers. We understand your problem.
Mr. Service:
The state parks do contract with the Lyon County Sheriff’s Office. If the park ranger needs help, all he has to do is call the sheriff and he will have back up.
Allen Newberry, Chief of Operations and Maintenance, Division of State Parks, State Department of Conservation and Natural Resources
I will read my testimony into the record (Exhibit F) in opposition to S.B. 282.
Senator Care:
Does the State park system have the discretion it needs to ban alcohol from a particular State park on a particular occasion?
Mr. Newberry:
Yes, we do. We do have the authority to temporarily make a ban via administrative regulation.
Senator Care:
Do you know the last time it might have happened?
Mr. Newberry:
For alcohol?
Senator Care:
Right.
Mr. Newberry:
Never.
Senator Nolan:
It sounds as though you have acknowledged the fact Lahontan park seems to have a bigger problem with minors and consumption and this type of activity than we have in some of the other State parks. The reasons you cited for not passing this bill are some of the same reasons they are bringing this bill forward. We are losing out on revenue because people are not attending the park due to a bunch of rowdy, drunk kids. The kids are there and probably staying overnight and probably not paying State park fees.
There are laws on the books that would give us the ability to eject people from the park for being public nuisances, or disturbing the peace, or being minors in possession. I am hearing we just do not have the enforcement. Obviously, this is a year we are not going to see very many budget enhancements. I think there would be a way we could establish one or two sting operations with more officers on a given weekend, in conjunction with working with local law enforcement. Chances are the people who are creating the problems are repeat offenders.
Maybe you could comment on this and let me know why we could not establish a sting. You would only have to do this is once or twice on a weekend and they would probably disappear for a couple of months. Then they would be back and you would end up doing it again.
Mr. Newberry:
I would like to invite each of you to come and ride with us on a holiday weekend at Lahontan reservoir. Lahontan is the primary park where we do have these types of problems. Statewide it is not a problem. Lahontan is the most critical park for alcohol consumption. Yes, we have had sting operations, though you do not really have to set up a sting operation. All you have to do is drive a beach and I will guarantee you will have an opportunity to contact lots of minors who are in possession. I, myself, work the holiday weekends at Lahontan. We can go from site to site and from incident to incident, often for 12-hour shifts. With the advent of cell phones we do have lots of calls.
We have four commissioned officers at Lahontan and we do contract with the county. The highway patrol will also set up a DUI checkpoint as people leave the park. Yes, people can come in late and beat the price of the fee. During our summer seasons, the fee booths are open from 7 in the morning until 10 at night. We do have rangers on duty basically 24 hours a day. You have to realize there are only four commissioned officers to cover 65 miles of shoreline.
We do not disagree we have a problem. It is really a matter of staffing. An officer can spend a full 12-hour shift on a busy holiday weekend going from site to site writing citations or making arrests. Once we make an arrest we have to haul those in-custody people to Yerington and back, which takes the officer out of the park for at least 2 1/2 hours. It is a compounding problem.
We do appreciate Mr. Service’s concerns because we share the same concerns. With the State parks not having an overtime budget, we are in kind of a pickle, kind of between a rock and a hard spot. We would like to work towards resolution. We can adapt part of his recommendations, but I do not think a complete alcohol ban in State parks will resolve this problem for us.
Senator McGinness:
I know Lahontan on Memorial Day can be the fourth largest city in the State. I know it can be a problem, but I do not want people to think of Lahontan as something out of Deliverance during that weekend. I have gone out there for some time and there can be some problems. Mr. Service, I totally understand your problem, but I have camped up and down Oregon and California and, no matter where you go, you are going to have some people in the next camp or two camps down that keep their party going way too late. I have had that problem in motels; the people next door have too much going on. Senator Nolan’s idea about a sting from time to time might work, but I see this as an extreme solution. Hopefully, State parks can keep up their enforcement opportunities.
Darolyn D. Skelton, Executive Director, Lake Tahoe Shakespeare Festival:
I am the executive director of the Lake Tahoe Shakespeare Festival. The festival is held at Lake Tahoe-Nevada State Park at Sand Harbor for 5 weeks during July and August. We are the biggest event at Lake Tahoe. Every year we are voted the best summer event and the best cultural event. We are in our thirtieth year and last year we brought 30,000 patrons to the Lake Tahoe area including tourists and additional room nights. Last year the festival increased 12 percent and our overall revenues were up 24 percent.
One of the festival traditions is drinking a bottle of fine wine while picnicking before the play begins. This will be my sixth year with the festival and in these 6 years I cannot recall one incident or problem we have had with alcohol. One or two times a year a patron will ask us to call them a cab. At the beginning of the festival, we encourage anybody who has had too much to drink to please ask somebody to get a cab for them or find a ride home for them.
I oppose S.B. 282. I think it could be detrimental to the success of this great cultural event we have in northern Nevada at Lake Tahoe. It might even actually eliminate it completely.
Senator Washington:
Thank you for your testimony. I guess the question is “... to be or not to be.”
Senator Nolan:
I appreciate the testimony on both sides and it sounds like this is an issue deserving some focus and attention. The way the bill is drafted is a little farther reaching than what we really need to do when we talk about all parks, including those that are not a problem.
As a recommendation, it would be nice if, for over a 2-week period, we ask the Nevada Division of State Parks to come back with a written plan of some type to tell us how they would like to focus on this issue. Just give us an idea of how you can focus attention on this effort and do what you can do to curb it. Perhaps you can develop some type of program to bring back to us on how you are going to add some additional emphasis and focus on this particular problem with Lahontan State Recreation Area.
Chairman Amodei:
Mr. Newberry, I know Lahontan is a challenge because it is such a high use area. This issue is a legitimate one and we do not want to brush over it. I understand resources are always an issue, but we would like to at least make sure we do not leave this issue just having said, “No.” If you could talk with Mr. Perock and let us know if it is a resource issue and if there is any assistance we can provide to you in an interagency context or in some sort of a seasonal assistance for resources for law enforcement purposes, we would like to have the opportunity to do so.
Mr. Newberry:
I will talk to the administrator and come back with a plan, as you suggest.
Chairman Amodei:
With no further testimony, we will close the hearing on S.B. 282 and open the hearing on S.B. 300.
SENATE BILL 300: Makes various changes concerning technological crimes. (BDR 15-438)
Kevin Higgins, Chief Deputy Attorney General, Fraud Control Unit for Industrial Insurance, Office of the Attorney General:
With me today is Dr. Tara Shepperson, who is the director of Nevada’s Cyber Crime Task Force, and from Las Vegas we have Sergeant Tom Keller of the Las Vegas Metropolitan Police Department, who deals with high-tech crimes and Internet luring crimes. They are both testifying today.
Last session the Legislature compromised and passed then S.B. No. 551 of the 71st Session providing law enforcement with a couple of great tools. It allowed us to use administrative subpoenas to get certain basic subscriber information from Internet service providers. If somebody, Joe Blow at AOL.com, writes a threatening letter to the Governor, we could issue a simple subpoena to ask AOL.com who is Joe Blow. Most Internet service providers are happy to provide information, as long as we follow steps that are not going to result in their liability.
The bill also created a couple of new crimes: cyber-stalking, and a crime for luring children with the use of the Internet, applying to on-line predators and pedophiles who use the Internet to contact young children for their own purposes. Washoe County just sentenced its first case yesterday. It has to be a record in this area. They had a detective on-line posing as a 13-year-old boy. Within 45 minutes, a university employee who, having met this person on-line, was on his way to downtown Reno to meet this boy to have sex with him. Of course, the boy turned out to be a law enforcement officer. Usually these cases take much longer to come to fruition.
We are appearing today on behalf of S.B. 300. It makes a couple of minor changes to the law which will help us out greatly. We provided a letter with my testimony to the committee with some helpful statutory attachments (Exhibit G).
Tom Keller, Sergeant, Internet Crimes Against Children Task Force, Las Vegas Metropolitan Police Department:
Mr. Higgins asked me to talk about how these particular laws impact us and how these changes would be to the benefit of the State. In regard to the administrative subpoena portion of the bill, one issue is we are unable to subpoena for misdemeanors.
In many cases, we do not know if a crime is a felony or a misdemeanor when we receive the initial complaint. Probably the best examples of this are harassment-type complaints and stalkings. Often we get a complaint when somebody has received an e-mail with very specific statements. These may be threatening or have information about a particular individual.
In an actual case where a boyfriend-girlfriend relationship had broken up, the e‑mails started with threats. When the first e-mail comes in, it is just harassment and has not risen to the level of felony stalking because there is not a continued pattern of behavior. Initially, when a complaint comes in, we have no power to do an investigation if the only information we have is an e‑mail. She then received e-mails of her vehicle parked in the driveway and of things coming out of her trash. Eventually, it rose to the level of a felony and we were able to arrest the responsible individual.
However, in the initial stages we could not really perform an investigation because the information we needed was only available through subpoena to the Internet service providers involved. In similar situations when you have initial complaints of fraudulent activity, the initial crime may only be a misdemeanor because of value. You really cannot begin an investigation until the suspect starts raising the stakes and goes to the felony level. This bill would give us the advantage of being able to investigate crimes, maybe before they get really out of hand and turn into felonies.
Tara Shepperson, Ph.D., Executive Director, Cyber Crime Task Force, Office of the Attorney General:
Most of the information has been covered with the testimony of Mr. Higgins and Sergeant Keller. I am really here just to answer any questions.
Senator Care:
I was here last session and I remember the debate about the administrative subpoena to which, as you may recall, I was opposed. I remember what happened in the last hours and I remember Senator James and I had quite a few discussions about it. Do you have any idea how many subpoenas have been issued pursuant to this chapter since the bill became law?
Mr. Higgins:
I do not know the answer. I could probably find out within a day or two. There would only be two major groups doing it for the most part.
Senator Care:
Maybe the gentleman from Metro would have some idea of how many we have seen issued since we enacted this. I know the subjects who receive the subpoenas can contest them by going to court. I am just wondering if they are told that when they are served the subpoenas. Is there some sort of notice on there telling them they do not have to necessarily comply and they can seek redress if they wish?
Mr. Higgins:
I do not have a copy of the standard subpoenas in front of me. I cannot answer you. I would note it is a civil subpoena and not a criminal subpoena, so the burden is upon law enforcement to go to court if the person does not want to comply. We have to convince a judge to enforce it. It is not vice versa.
Senator Care:
Is there something on there informing a person who receives the subpoena they do not have to immediately comply? Is there something saying how long they have to respond to the subpoena? My questions only stem from the same reservations I had last session. I think when you are dealing with subpoenas, especially administrative subpoenas, you just have to be careful.
Mr. Keller:
We probably do not issue very many subpoenas, maybe ten a month at the most. Our administrative subpoenas were based on the other administrative subpoenas we have for utility companies. We spell out the law in the administrative subpoenas. We also give a copy of the law attached to the subpoena for the Internet service provider. I cannot think of one case we have used this, in any crime investigation I have been involved in, where the Internet service provider did not want to provide it to us. They already had policies in place in their own agency or their own company and they were mainly concerned when receiving administrative subpoenas they were covered for liability purposes for providing us with information.
Chairman Amodei:
With no further testimony on S.B. 300, we will close the hearing and open the hearing on S.B. 316.
SENATE BILL 316: Revises provisions pertaining to issuance of search warrants. (BDR 14-1278)
Ben R. Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association/Las Vegas:
What we are asking for in S.B. 316 is predicated upon the situation when the police officer completes an affidavit establishing probable cause and goes to a judge to obtain a search warrant. Frequently, the officer must include information in this affidavit relying on information that might have been divulged by a neighbor, by an undercover officer, or by a bad guy who has decided to go good. The warrant has to be specific as to where they are going, what they are searching for, and when it can be executed. The police then go to the premises, or car, or business, or whatever it might be, to execute the search warrant. Traditionally, we leave a copy of the warrant which shows who signed it and indicates what officer or officers provided the affidavit to establish probable cause. If items were then seized, an inventory would be left so it would be known what was taken.
Traditionally, we would not leave the affidavit because the affidavit sometimes would immediately put people, including witnesses, in jeopardy before the case even proceeded. The affidavit normally is filed in court along with the warrant and the return showing what was seized. It would be sealed for a short period of time to allow the law enforcement process to determine whether or not to proceed. If the bad guys get an attorney and decide they want to challenge the validity of the search warrant to find out what the evidence looks like, the affidavit is provided to them, sometimes within a couple of days.
The Nevada Supreme Court recently interpreted the law to say the affidavit had to be left at the premises. The affidavit frequently contains names of witnesses, citizens, and good people who have stepped forth to help provide probable cause. If you are not truly a bad guy and you get the information, the evidence would then either never be admitted or would be suppressed. This in no way infringes upon the right of a defendant to find out who provided the probable cause evidence. It allows for discovery, which is open and available, if and when the warrant is challenged.
With me is Kristin Erickson, from the Washoe County Sheriff’s office, and Captain Nadeau, retired from the Washoe County Sheriff’s office. I also have a small cover sheet with page 2 of the bill attached (Exhibit H). Our office is concerned because we had figured the law was clear before, but we would like to add the information on the second page of the bill, which is attached to your handout.
This is a safety issue more than anything else. Ms. Erickson can provide a couple of examples if the committee is interested or we are certainly open to questions.
Senator Care:
I am concerned about deleting the language from existing statute on page 2, line 14, “State the grounds or probable cause for its issuance and the ...” and then you substituted: “The criminal offenses alleged to have been committed.” To satisfy constitutional safeguards, the statute itself has to contain the words “probable cause.” By listing the criminal offenses, you are still detailing your probable cause. I am concerned if we are going to delete those magic words, “probable cause,” are we leaving ourselves open to a challenge?
Mr. Graham:
As noted, the Nevada Constitution mandates no warrant shall be issued except based upon probable cause. The warrant itself would say a judge has taken testimony or reviewed the affidavits of officers and finds there is probable cause to believe a crime has been committed and lists the crimes. You can go search for particular evidence in a particular place. What would not be left or would not be immediately available to a true bad guy would be the affidavit reciting the undercover operation or the individuals who provided information. As public record, it is on file and would be discoverable in a short period of time after the search. Again, it says there has to be probable cause, it does not say you have to demonstrate the probable cause to the bad guy when you go to the door.
Senator Care:
I understand the safety issue. I did not read the case, but the Nevada Supreme Court was simply interpreting a statute, they were not saying it had to be this way. If we want to change the statute, I guess the Nevada Supreme Court is saying we can. Is there case law saying you do not necessarily have to leave a copy at the doorstep of the premises when you execute on a warrant and it can be unsealed later? I would feel more comfortable if I knew existing case law permits this.
Mr. Graham:
We could certainly do some quick research. The requirement from the federal level is for the copy of the search warrant and the inventory. Essentially, we felt we needed to include the affidavit because we believed the words “may a part hereof” indicated it needed to be left with the defendant as well as with the court.
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney:
This is an extremely important bill to law enforcement. If we do have to leave a copy of the affidavit, it jeopardizes not only the investigations and prosecutions of crimes and criminal acts, but it endangers innocent lives as well. This is basically the reason for this bill and I would urge its passage.
James F. Nadeau, Lobbyist, Nevada Sheriffs and Chief’s Association/North, Washoe County Sheriff’s Office:
Our counselors have spoken and we support the bill. There is a serious concern when we are working cases with undercover officers who should not be identified immediately when the search warrant is served. It is my understanding it becomes open record once the return is served to the court anyway. We support this and think it is very important to the prosecution or investigation of crime.
Senator Care:
I am now looking at page 2, line 37, “not later than 10 days after the execution of the warrant,” comma, “must be filed with the issuing court,” comma, “except upon good cause shown.” I am wondering what the circumstances would be for “good cause.”
Mr. Graham:
“Good cause” would be your ongoing criminal investigation, where a search warrant might have been a part of a series. The important factor in looking at it from the defense standpoint is: I want to know who in the heck was the snitch. When it comes time for charges to be filed, and motions to suppress, violation of due process or constitutional rights, the entire affidavit, search warrant, and return are available to the defendant for those preliminary, pre-trial matters. If there was an ongoing investigation where a warrant would have been part of a series and we still had people out gathering further evidence, we could possibly delay it with a showing to the court as to why.
Senator Care:
Mr. Nadeau used the expression, “cause for concern.” Do you actually have particular incidents in mind where a witness was threatened and maybe had to leave the State, or had a case fall apart because the identity of a potential witness was revealed in an affidavit list?
Mr. Graham:
I do not have the exact names here in front of me, but I have seen videotapes presented of witnesses killed by drug people who were able to determine the people who provided the probable cause. Recently, when that fellow left the little child in Salt Lake City, the media nearly got to the premises before the police did because of the requirement the affidavit be open. It gave warning and potential cause for somebody to destroy evidence and very well may have compromised an investigation. This is just an example. Ms. Erickson may have some more but there are definitely examples where it has happened.
Juanita Cox, Lobbyist, People Organized for the Next Generation:
I will read my testimony into the record (Exhibit I).
Janine Hansen, Lobbyist, Nevada Eagle Forum:
I am the State president of Nevada Eagle Forum. I wanted to bring to your attention our concern about this issue. I appreciated what the district attorney had to say. I am not really here to oppose the bill. I just want to reiterate our concern for maintaining the Fourth Amendment. I have copies of the article we published in our voter guide about how the U.S.A. Patriot Act of 2001, in cooperation with the states, has severely jeopardized the Fourth Amendment.
We are very concerned and wanted to share with you the fact there is now a national movement with resolutions passed in New Mexico and Hawaii, supporting the basic amendments which are in jeopardy under the patriot act and homeland security measures. I will provide you with this article (Exhibit J). We want our law enforcement to be able to protect us and, if there are crimes, be able to prosecute them; but we are seriously concerned about the jeopardy of the Fourth Amendment, especially under the move of the federal government at this time.
Chairman Amodei:
With no further testimony on S.B. 316, we will close the hearing. We will now open the hearing on S.B. 394.
SENATE BILL 394: Revises various provisions relating to certain criminal statutes. (BDR 15-1026)
Ms. Erickson:
Senate Bill 394 is in response to two Nevada Supreme Court cases which came down in late December of 2002. The two Supreme Court case opinions declared the descriptions of the criminal violations of annoying and molesting a minor, as well as possession of a majority of ingredients to manufacture methamphetamine were unconstitutionally vague.
The first part of S.B. 394, in addition to protecting children, adds protecting the mentally ill who are, by virtue of their mental illness, susceptible to sexual predators. It is extremely important to protect minors from this type of conduct. It protects children from types of batteries with sexual connotation which do not rise to the level of lewdness with a minor.
A problem with conduct on the margin of lewdness with a minor is it gives two options, life imprisonment or life imprisonment suspended granting probation for lewdness with a child under the age of 14. It is important to prosecute those types of acts which carry sexual connotation and do not rise to the level of lewdness.
This bill also addresses methamphetamine labs. I am aware you have heard ample testimony about methamphetamine labs popping up all over the State of Nevada. This statute addresses the preparation to manufacture methamphetamine, which requires several drugs, some legal, some illegal, some easy to get, some difficult to get. It addresses the assemblage of ingredients with the intent to manufacture methamphetamine. What the Supreme Court wanted to see in statute, and we have corrected in this bill, is to add a knowledge and intent to manufacture methamphetamine. Mere possession of ingredients, which many of us have in our medicine cabinets, is not a criminal act unless it can be proven they are possessed with the intent to manufacture methamphetamine. This is a cleanup bill, attempting to address problems raised by the Supreme Court.
Senator Wiener:
I feel like we are revisiting an earlier piece of legislation. Section 3 on page 4, starting at line 31, has new language about willful and malicious engagement in the course of conduct with a child. I am not sure what that means. Is it conduct that continues with the same child or could it be a conduct that could be once with a child, but repeated with many children?
I am looking at language a few lines down on line 35, where it talks about feeling terrorized, frightened, intimidated, or harassed, and actually causes a child to feel frightened, intimidated or harassed. I am going to give you a strange hypothetical situation and maybe it will help you understand my course of conduct question.
Let us say someone on Halloween terrorizes or frightens a child and repeatedly either does it with that child or several children. It does create fear in the child, and probably not in a kind way. Does this create a course of conduct because he or she repeats it with many children? Can this be interpreted as a terrorizing act? It could be frightening, but it is part of that experience, especially with a 5‑year difference, so you could have a very young child.
Ms. Erickson:
I certainly understand your point of view and there are two points I would like to address. There is prosecutorial discretion, which goes along with using common sense in dealing with situations such as Halloween. Also, key to criminal law is there has to be bad intent. The best way to explain this is writing a bad check. Simply making a mathematical error is not a criminal act, but if you repeatedly do it with the knowledge you cannot cover the check, it then becomes a criminal act. The language of the statute would cause a reasonable child and although a reasonable child may feel frightened or terrorized, it is somewhat expected at Halloween. That is part of what happens and what goes on.
Senator Wiener:
Unfortunately, it happens, but let us say there is someone in the neighborhood who is not the favorite neighbor and something happens on Halloween. Many of us grew up with one of those, the old grouch down the street or someone the neighborhood says is constantly causing grief. This course of conduct may just be an attitude issue and cumulatively it may subjectively look like this person is malicious or willful. I am wondering if there could be a case built on a lot of circumstances where you could create a course of conduct, but it may not be anything more than a neighborhood that is having trouble with someone they just do not like and brings it to the front when in a Halloween instance all the children in the neighborhood were terrorized and frightened by this person and this is the course of conduct that led up to those acts of terror and fear.
Ms. Erickson:
In fact, this bill on page 5, line 20, defines “course of conduct” as meaning a pattern of conduct consisting of a series of acts over time, which evidences a continuity of purpose directed at a specific person. If there was a grouchy neighbor, his acts would have to be directed specifically at one particular person, and not the entire neighborhood, causing that person to feel frightened and terrorized within the standard of what would make a reasonable person feel terrorized and harassed.
Senator Care:
Let me follow up. When it comes to prosecuting a case like this, unless you had an eyewitness, you are relying on the testimony of the child. You are probably familiar with the Martin preschool case, which dealt with child molestation. There was a period where several adults were convicted based on the testimony of children who had been coached or, arguably, not coached and coaxed as opposed to coached. If we enact this bill, this issue is going to arise. What would it take in your mind for a 5-year-old to convince you he had been a victim of a campaign of terror and you had a case?
Ms. Erickson:
In my experience, it would be detail. What kind of detail can the child provide? Does he provide any sort of evidence that can be corroborated either by an independent witness or details such as clothing? We have had cases where a situation like you have described has occurred. Usually these are secret offenses when they deal with sexual conduct with children. We have had instances where sweatpants have been used as part of the crime. They have had holes strategically cut in the sweatpants and sure enough they have been found and this corroborated the child’s testimony. When it comes down to a child in a one-on-one, yes, it is an extremely difficult decision to make, but we usually look for corroborating details.
Senator Care:
When I read the language about 5 years younger than the person, which would cause a reasonable child, I guess, arguably, it could mean an 11-year-old who is terrorizing a 5-year-old, could it not?
Ms. Erickson:
Yes, that is correct.
Senator Care:
I appreciate your comments about your prosecutorial discretion. What about the school yard bully? Let me give you an example, true story, about when I was growing up in Wichita, Kansas. I attended the only elementary school in town that was let out 10 minutes earlier than all the other elementary schools because one block away there was a junior high school. The third graders were given a 10-minute head start on the ninth graders. We were scared to death and took advantage of the 10 minutes. It did happen on occasion where a ninth grader would intimidate a third grader. I think you get my point. Is there a distinction between that and the terror contemplated in this bill?
Ms. Erickson:
It would be a somewhat difficult decision to make. The biggest distinction I can offer you is the juvenile justice system would handle that type of situation, so they would not be thrown into jail or sent to prison. They would more than likely be given counseling and therapy, if needed, anger management, or something to that effect.
Senator Care:
Did the court say anything about the mentally ill person? Does your definition require a diagnosis or is it possible to say a person is obviously mentally ill?
Ms. Erickson:
An extremely important factor in a decision is if there is a history of mental illness over time. Usually a health care professional is or has been involved. Certainly if this were to occur at the very onset of mental illness, there probably would not be a diagnosis, but most mentally ill people have been diagnosed.
Senator Care:
On page 3, line 7, where it begins: “for any purpose that a reasonable person under the circumstances would know,” reads like a negligence standard to me; yet, I know it is not intended to be. I take it you are comfortable with that language. Would circumstances arise where it is possible somebody would unintentionally or unknowingly violate this statute?
Ms. Erickson:
Again, there is always criminal intent in the criminal justice system whether it be general intent or specific intent. If it were purely unintentional, then it would not be a crime. If there was a death, it could result in something like a manslaughter charge, where no intent is necessary. It would require an intent to harm the child, which is implicit in the statute.
Mr. Nadeau:
I am representing the Washoe County Sheriff’s Office. Just another “Me, too,” on this, thank you.
Chairman Amodei:
Seeing no further testimony or questions, we will close the hearing on S.B. 394. Is there any other business to come before the committee? Seeing none we are adjourned at 9:46 a.m.
RESPECTFULLY SUBMITTED:
Lora Nay,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: