                                                  131 Nevi, Advance opinion 32
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                PHILLIP DOUGLAS SHARPE,                             No. 64287
                                                                                   FILED
                Appellant,                                                          JUN 0 4 2015
                vs.
                                                                                  LA hE K LiNCSMAN
                THE STATE OF NEVADA,
                                                                                        re •
                                                                                          - RE tv:Fc_C,_Qv R
                                                                           , BY
                Respondent.                                                       CHI   DEE




                           Appeal from a judgment of conviction, pursuant to a guilty
                plea, of trafficking in a controlled substance. Third Judicial District
                Court, Lyon County; Leon Aberasturi, Judge.
                           Affirmed.


                Quade Law, Ltd., and Paul E. Quade, Reno,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Robert Auer, District
                Attorney, and Jeremy R. Reichenberg and Moreen Scully, Deputy District
                Attorneys, Lyon County,
                for Respondent.

                Gordon Silver and Dominic P. Gentile, Las Vegas,
                for Amicus Curiae Nevada Attorneys for Criminal Justice.

                Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy
                District Attorney, Clark County,
                for Amicus Curiae Nevada District Attorneys Association.




                BEFORE SAITTA, GIBBONS and PICKERING, JJ.




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                                                  OPINION

                 By the Court, GIBBONS, J.:
                             In this opinion, we address whether Nevada wiretap law
                 permits the interception of cellular telephone calls and text messages,
                 even though it has not been updated since 1973. We conclude that Nevada
                 wiretap law, assuming its other statutory requirements are satisfied,
                 allows for the interception of cellular telephone calls and text messages.
                                  FACTS AND PROCEDURAL HISTORY
                             In 2010, officers began investigating appellant Phillip Sharpe
                 after receiving information that he distributed methamphetamines.
                 Approximately four months into their investigation, officers obtained a
                 warrant authorizing a wiretap to intercept communications on two
                 different cellular telephone numbers attributed to Sharpe. The wiretap
                 resulted in the interception of both telephone calls and text messages.
                 After collecting sufficient intelligence, officers obtained a search and
                 seizure warrant for Sharpe's residence and vehicles.
                             Four days after obtaining the search and seizure warrant, due
                 to intelligence gathered from physical surveillance and the wiretap,
                 officers anticipated that Sharpe intended to purchase a large quantity of
                 methamphetamines. After observing the presumed drug deal, officers
                 pulled Sharpe over and arrested him. During the arrest, officers
                 confiscated approximately 3.25 pounds of methamphetamines from
                 Sharpe's vehicle. Almost simultaneously, officers executed the search and
                 seizure warrant at Sharpe's residence and confiscated small amounts of
                 various drugs and drug paraphernalia.
                             Sharpe was charged with four drug-trafficking-related
                 felonies. After pleading not guilty on all four counts, Sharpe filed a motion
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                to compel further discovery, two motions to suppress evidence obtained
                from the wiretap, a motion to suppress evidence obtained from the search
                of his vehicle, and a motion for a Franks' hearing. The district court
                denied all five motions.
                            Subsequently, Sharpe pleaded guilty to trafficking in a
                controlled substance, level III, based upon the 3.25 pounds of
                methamphetamines confiscated from his vehicle. Sharpe, however,
                reserved his right to appeal the denial of the aforementioned five motions.
                On October 18, 2013, the district court sentenced Sharpe to life
                imprisonment with the possibility of parole after serving 10 years, $235 in
                fees, and a $50,000 fine.
                                               DISCUSSION
                            Although Sharpe raises a multitude of issues on appeal, we
                take this opportunity to discuss a specific issue originating from his second
                motion to suppress the wiretap. In that motion, Sharpe argued that the
                fruits of the wiretap should be suppressed because Nevada law does not
                allow for the interception of cellular communications. The district court
                disagreed. After oral arguments on appeal, we ordered amicus briefs on
                the following narrow issue: "whether Nevada wiretap law allows for the
                interception of cellular telephone calls and SMS text messages. [And]
                [m]ore specifically, whether NRS 179.460(1)'s mention of 'wire or oral
                communications' includes cellular telephone calls and SMS text messages,
                considering that similar federal statutes were updated to include
                'electronic communications,' while NRS 179.460(1) was not."


                      'Franks v. Delaware, 438 U.S. 154 (1978).


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                            This issue presents questions of statutory interpretation,
                which we review de novo. See State v. Lucero, 127 Nev. 92, 95, 249 P.3d
                1226, 1228 (2011).
                            In response to the United States Supreme Court's decisions in
                Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389
                U.S. 347 (1967), "Congress undertook to draft comprehensive legislation
                both authorizing the use of evidence obtained by electronic surveillance on
                specified conditions, and prohibiting its use otherwise."      Bartnicki v.
                Vopper, 532 U.S. 514, 523 (2001) (internal quotations omitted). This
                legislative effort resulted in the enactment of Title III of the Omnibus
                Crime Control and Safe Streets Act of 1968. Id. at 523. Title III allowed
                for the interception of both wire communications and oral communications
                as long as certain requirements were met. Id. ("One of the stated purposes
                of [Title III] was to protect effectively the privacy of wire and oral
                communications." (internal quotations omitted)). Pertinent to the issue on
                appeal, Title III defined "wire communication' [as] . . . 'any
                communication made in whole or in part through the use of facilities for
                the transmission of communications by the aid of wire, cable, or like
                connection between the point of origin and the point of reception.'"
                Commonwealth v. Moody, 993 N.E.2d 715, 718 (Mass. 2013) (emphasis
                omitted) (quoting Omnibus Crime Control and Safe Streets Act of 1968,
                Pub. L. No. 90-351, § 802, 82 Stat. 197, 212 (1968) (codified as amended at
                18 U.S.C. § 2510 (2014))).
                            "In enacting Title III [Congress] intended to occupy [and thus
                preempt] the field of wiretapping and electronic surveillance, except as
                that statute specifically permits concurrent State regulation."   Id. at 718
                (alterations in original) (internal quotations omitted). The 1968 Senate

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                Report on Title III states that: "[t] he proposed provision envisions that
                States would be free to adopt more restrictive legislation, or no legislation
                at all, but not less restrictive legislation." S. Rep. No. 90-1097, at 98
                (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2187. Accordingly, states
                were allowed to adopt their own wiretap laws, as long as they were at
                least as restrictive as federal legislation.   See State v. Serrato, 176 P.3d
                356, 360 (Okla. Crim App. 2007) ("Under the current regime established
                by Congress in Title III, a state wiretapping law can never be less
                restrictive than federal law.").
                             In 1968, Nevada law was already more restrictive than federal
                law. Eleven years earlier, the Nevada Legislature had enacted what is
                now NRS 200.650. At the time, NRS 200.650 prohibited a person from
                "surreptitiously listening to, monitoring or recording, or attempting to
                listen to, monitor or record," i.e., eavesdrop, a private conversation via a
                device, unless authorized to do so by one of the persons engaged in the
                private conversation. See A.B. 47, 48th Leg. (Nev. 1957).
                             In 1973, the Nevada Legislature introduced Senate Bill 262.
                See S.B. 262, 57th Leg. (Nev. 1973). Once passed, Senate Bill 262
                provided for Nevada's wiretap statutes and introduced the two statutes at
                issue in this appeal, what are today NRS 179.455 and NRS 179.460.        See
                1973 Nev. Stat., ch. 791, §§ 10, 11, at 1743. At the same time, the
                Legislature amended NRS 200.650 to state that a person could eavesdrop
                if the person met the requirements of the wiretap statutes. See id., § 26,
                at 1749.
                             Subject to other qualifications, Senate Bill 262 allowed "a
                supreme court justice or. . . a district judge in the county where the
                interception is to take place" to issue "an order authorizing the

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                interception of wire or oral communications." Id., § 11, at 1743; see also
                NRS 179.460. A "wire communication," like its federal equivalent at the
                time, was defined as "any communication made in whole or in part
                through the use of facilities for the transmission of communications by the
                aid of wire, cable or other like connection between the point of origin and
                the point of reception." 1973 Nev. Stat., ch. 791, § 10, at 1743; see also
                NRS 179.455.
                            The relevant portions of these Nevada statutes have remained
                the same since 1973. But federal wiretap law kept developing In 1986,
                Congress amended Title III with the Electronic Communications Privacy
                Act of 1986 (ECPA).    See generally Pub. L. No. 99-508, 100 Stat. 1848
                (1986) (codified as amended in scattered sections of 18 U.S.C.). As part of
                this act, Congress created "a new category of protected communication
                called 'electronic communication," to go along with wire and oral
                communications. Moody, 993 N.E.2d at 719. Congress also amended the
                definition of "wire communication." Id. at 720. Due to the creation of the
                "electronic communication" category and the amendment of the definition
                of "wire communication," today, cellular telephone calls and text messages
                are commonly viewed as electronic communications.       See Bartnicki, 532
                U.S. at 524; McKamey v. Roach, 55 F.3d 1236, 1240 (6th Cir. 1995).
                            Additionally, "the ECPA established a two-year grace period
                for States, essentially delaying Federal preemption with respect to the
                amendments and allowing States time to amend their wiretap statutes to
                the extent necessary to meet or exceed the level of protection provided to
                electronic communications under Title III."    Moody, 993 N.E.2d at 720.
                Nevada did not update its wiretap statutes. On appeal, Sharpe argues
                that Nevada's failure to update its wiretap law to reflect federal wiretap

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                law means that Nevada wiretap law does not give the proper statutory
                authorization for officers to intercept cellular telephone calls and text
                messages. Amicus Nevada Attorneys for Criminal Justice asserts that
                Nevada's failure to update must be construed as the Legislature choosing
                to achieve a result different from federal wiretap law, i.e., no authorization
                for the interception of cellular telephone calls or text messages.
                            "When a statute is plain and unambiguous, this court will give
                that language its ordinary meaning and not go beyond it." State v. Allen,
                119 Nev. 166, 170, 69 P.3d 232, 235 (2003). We only turn to a statute's
                legislative history when the statute is ambiguous. Lucero, 127 Nev. at 95,
                249 P.3d at 1228. A statute is ambiguous "when the statutory language
                lends itself to two or more reasonable interpretations."         Id. (internal
                quotations omitted). Further, "t]he plainness or ambiguity of statutory
                language is determined [not only] by reference to the language itself, [but
                as well byl the specific context in which that language is used, and the
                broader context of the statute as a whole."      Yates v. United States, 574
                U.S. , 135 S. Ct. 1074, 1081-82 (2015) (alterations in original)
                (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
                            NRS 200.650 allows for the interception of a private
                communication if authorized by NRS 179.410 to 179.515. NRS 179.460,
                subject to other qualifications, permits the interception of "wire
                communications." A "wire communication"—still defined as it was in
                1973—is "any communication made in whole or in part through the use of
                facilities for the transmission of communications by the aid of wire, cable
                or other like connection between the point of origin and the point of
                reception." NRS 179.455.



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                              We conclude that NRS 179.455's definition of "wire
                  communication" includes cellular telephone calls and text messages by its
                  plain terms. The broad scope of "any communication" is obvious. We
                  conclude that "any" indicates that both cellular telephone calls and text
                  messages fall within the definition of "wire communication." Next, for
                  cellular telephone calls and text messages to be included under the plain
                  terms of the definition of "wire communication," they must be "made in
                  whole or in part . . . by the aid of wire, cable or other like connection
                  between the point of origin and the point of reception." NRS 179.455.
                              When faced with a similar question, many courts have found
                  that cellular telephone calls and text messages are made in part "by the
                  aid of wire. .. between the point of origin and the point of reception,"
                  NRS 179.455; see In re Application of United States for an Order
                  Authorizing Roving Interception of Oral Communications, 349 F.3d 1132,
                  1138 n.12 (9th Cir. 2003) ("Despite the apparent wireless nature of
                  cellular phones, communications using cellular phones are considered wire
                  communications under the statute, because cellular telephones use wire
                  and cable connections when connecting calls."); Moody, 993 N.E.2d at 722-
                  24 (concluding that Massachusetts' wiretap law, which possesses the same
                  1968 definition of "wire communication" as Nevada, allows for the
                  interception of cellular telephone calls and text messages because each
                  communication "travels in part by wire or cable or other like connection");
                  Serrato, 176 P.3d at 359 ("The evidence presented in the District Court
                  established that 'wireless' cellular phone communications are actually
                  processed by the initiation of a wireless communication from a handset
                  (cell phone) to a cellular tower, from which the communication is then
                  transmitted by wire through a switching station to another transmitting

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                 tower. . . ." (emphasis added)); see also S. Rep. No. 99-541, at 9 (1986),
                 reprinted in 1986 U.S.C.C.A.N. 3555, 3563 (noting that cellular telephone
                 services "user) both radio transmission and wire to make 'portable'
                 telephone service available"). We agree with the conclusion of our sister
                 courts: cellular telephone calls and text messages rely in part upon the aid
                 of wire for the purposes of transmission.
                               Accordingly, we conclude that cellular telephone calls and text
                 messages are "wire communication[s]" under NRS 179.455's plain terms,
                 because cellular telephone calls and text messages qualify as "any
                 communication" and are "made in whole or in part. . . by the aid of wire,
                 cable or other like connection between the point of origin and the point of
                 reception."
                               Sharpe also asserts on appeal that because Nevada did not
                 update its wiretap law in accordance with federal wiretap law, Nevada
                 wiretap law is less restrictive and is thus preempted. Sharpe, however,
                 fails to point out how Nevada wiretap law is less restrictive, i.e., what
                 Nevada wiretap law allowed to occur here which federal wiretap law
                 would have prohibited. Due to our holding, current Nevada wiretap law,
                 like federal wiretap law, allows for the interception of cellular telephone
                 calls and text messages. Although the statutes read differently, their
                 allowances in this regard are equally restrictive. Thus, we conclude that
                 Nevada wiretap law is not preempted.           See S. Rep. No. 90-1097, at 98
                 (1968), reprinted in 1968 U.S.C.C.A.N. 2111, 2187 (stating that Title III
                 envisioned that states "would be free to adopt more restrictive legislation,
                 or no legislation at all, but not less restrictive legislation").
                               Consequently, we conclude that the district court did not err
                 in finding that Nevada wiretap law permitted the interception of Sharpe's

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                cellular telephone calls and text messages. 2 For the reasons set forth
                above, we affirm Sharpe's judgment of conviction.




                                                   Gibbons

                We concur:




                Pickering




                      2 Further, we conclude that the district court did not err in its
                handling of the other issues raised by Sharpe on appeal.



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