State v. Reyes

¶1dissenting:

¶2Respectfully, I dissent.

¶3The interpretation of the “ordinary course of duties” exception by the majority opinion both frustrates the purpose of our statutory scheme and effectively swallows the rule.

¶4NRS 179.425 serves as an exception to the general prohibition of unauthorized interceptions of wire or oral communications and exempts from the definition of “electronic, mechanical, or other device,” “ any telephone . . . used ... by an investigative or law enforcement officer in the ordinary course of his duties.” NRS 179.460 prescribes the procedure to obtain authorization for the interception of wire or oral communications. Nevada clearly requires all parties to a communication to consent to an interception, absent prior judicial authorization. NRS 200.620. In an emergency situation, NRS 200.620 specifies that a law enforce*198ment officer must obtain prior consent of one party to the communication and make a written application to a judge within seventy-two hours of the interception.

¶5The majority’s construction of the exception contained in NRS 179.425 eifectively emasculates the entire purpose of our statutory scheme: to prohibit law enforcement officers from intercepting communications except with prior judicial authorization in specifically defined circumstances.1 The interception that occurred in this case was not in the ordinary course of the law enforcement officer’s duties because to interpret the exception as such would abrogate the requirements provided in NRS 179.460 and NRS 200.620 that the interception be authorized. Thus, under the majority opinion, any telephone extension interception made by a police officer is in the “ordinary course of his duties.” I disagree that our legislature intended the exception to swallow the rule; on the contrary, I conclude the intent was dramatically different as delineated below.

¶6Nevada’s “wiretap statutes” (NRS 179.410 et seq.) are patterned after the federal wiretap statutes in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See 18 U.S.C. §§ 2510-2520; State v. Bonds, 92 Nev. 307, 309 n.2, 550 P.2d 409, 410 n.2 (1976). The “ordinary course of duties” exception is found in the federal scheme in 18 U.S.C. § 2510(5)(a)(ii). I will first look to the federal legislative history and then to the federal case law interpreting the meaning of the exception.

¶7The legislative history of the “ordinary course of duties” exception contains the following:

Paragraph (4) defines “intercept” to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. An examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an “interception.” The proposed legislation is not designed to prevent the tracing of phone calls. The use of a “pen register,” for example, would be permissible. . . . The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication.

¶8S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News 2178 (citation omitted) *199(emphasis added) (hereinafter “Senate Report”). This intent differs substantially from the majority’s interpretation that any interception involving a telephone extension in the ordinary course of the law enforcement officer’s duties is exempted from the authorization requirement.

¶9Federal courts which have considered the interpretation of the exception seem to base their rationale on the specific facts presented by each case.2 While no case directly matches the facts in the instant appeal, the case law usefully represents a spectrum of permissible and impermissible police conduct with regard to the “ordinary course of duties” exception. I turn therefore to examine what eavesdropping activities are considered to be in the ordinary course of a law enforcement officer’s duties and what activities are outside of the scope of the exception.

¶10In Jandak v. Village of Brookfield, 520 F.Supp. 815 (D.Ill. 1981), the court concluded that:

[Rjoutine, nonsurreptitious, recording of a police investigation line which results in the recording of a conversation of an officer misusing the line for private purposes, where the officer should have known that the line was monitored, was in the ordinary course of the police chiefs duties as a law enforcement officer, and is exempted from the statute. . . .

¶11Id. at 825. The Jandakcourt found the eavesdropping activity in that case to be within the exception. Nevertheless, it rejected a broader interpretation urged by the police department: to apply the exception whenever a police officer is engaged in an investigation and uses the exempted telephone or telegraph equipment. The Jandakcourt wisely opined:

If the statute did not apply whenever a law enforcement officer was acting in the ordinary course of his duties as this phrase is construed by defendants, then the whole statutory scheme, providing procedures and standards for when and how law enforcement officers may get court orders for electronic eavesdropping, would be rendered meaningless. . . . This unduly broad reading of the exemption must be rejected.

¶12Id. at 823 (emphasis added). Further, the Jandakcourt noted that the “cases reveal two factors which primarily account for the decision whether the particular monitoring is within the language of the exemption ... [1] whether the equipment was installed and used for proper business or investigative purposes and ... [2] the extent to which the eavesdropping was surreptitious, rather than with reasonable notice to the parties to the conversation that calls might be monitored.” Id. at 823 (footnote omitted).

¶13*200Applying these two factors to the instant case, I conclude that the police officer’s acts can only be construed as falling outside of the exception. First, the police directed the informant to use a police telephone to call respondent and instructed an interpreter to eavesdrop on the conversation on an extension line. The State has presented no evidence that the telephone equipment in question was installed for these purposes. Furthermore, the cases which have concluded that the equipment was installed for proper or investigative purposes found there was routine monitoring of the telephone lines.3 The eavesdropping in the instant case was not routine; rather, the police surreptitiously monitored that particular phone conversation.

¶14Second, clearly no notice was provided in the instant case to either the informant or to respondent Reyes. Neither the informant nor Reyes had any reason to know that the conversation might be listened to by the police. Therefore, the entire purpose of our statutory scheme, to protect the privacy of wire and oral communications, is heightened by the parties’ ignorance of the eavesdropping. Cases which have categorized the eavesdropping activity as outside of the scope of the law enforcement officer’s duties have focused on the absence of notice.4 Additionally, the fact that Nevada is a two-party consent jurisdiction further emphasizes the importance our legislature places on notice.

¶15While the above-mentioned cases are not binding authority upon which this court must rely, they illustrate the spectrum of conduct considered within and outside of the exception. No federal cases have interpreted the exception as expansively as my brothers in the majority.5

¶16I turn now to the state court decisions upon which the majority relies. I believe the underlying rationale in the Page, McDermott, and Adams decisions is wrong, and therefore the majority’s reliance upon them is erroneous. Page, McDermott, and Adams interpret the exception so expansively that the entire purpose of *201requiring law enforcement officers either to obtain prior authorization or to follow the necessary procedures in an emergency situation is rendered meaningless. I remain unpersuaded by this rationale.

¶17The district court properly relied upon United States v. Harpel, 493 F.2d 346 (10th Cir. 1974.) The majority asserts that Harpelis distinguishable because there the police officer had no explanation for his conduct, legitimate or otherwise, and the telephone conversation was entirely private. Here, Officer Magee testified about several legitimate law enforcement interests which explained the use of the extension telephone.

¶18There is no indication in Harpel, however, that the defendant police officer did not have legitimate reasons for eavesdropping on the telephone conversation and tape recording it. Moreover, law enforcement officers presumably could always articulate at least one legitimate interest in eavesdropping on a conversation. The question of whether there was an unlawful interception does not and should not hinge on whether there was a legitimate reason for intercepting. The purpose of the wiretapping statutes is precisely to prevent unlawfully intercepted communication as defined.

¶19In sum, I am persuaded that the interception in question was not in the ordinary course of the law enforcement officer’s duties because the narcotics unit has no regular routine or identified and indiscriminate policy of such interceptions. Furthermore, the interception in question was not in the ordinary course of the law enforcement officer’s duties merely because the officers were engaged in the investigation of suspected criminal activity or could articulate a purpose related to criminal investigation. The majority’s determination effectively swallows the rule against unauthorized wiretapping. Warrantless eavesdropping should not be deemed conduct in the ordinary course of duty because of the potential for abuse by law enforcement.

¶20It seems to me that the majority’s interpretation of the exception has substantially departed from the United States Congressional intent when it anticipated that “[a]n examination of telephone company records by law enforcement agents in the regular course of their duties would be lawful because it would not be an ‘interception.’ ” See Senate Report, supra, at 2178. For the reasons stated above, I am unable to endorse the majority opinion and therefore dissent.