The court concluded, “when there has been an objection to admissibility of a text message, see NRS 47.040(1)(a), the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission, see NRS 52.015(1); see also NRS 47.060; NRS 47.070.”

In reaching their holding, the court reasoned, “that, as with nonelectronic documents generally, the identity of the sender is critical to authenticating text messages, see id. at *5-6, and that “the difficulty that frequently arises in . . . text message cases is establishing authorship,” id. at *6.  The court reasoned that a person cannot be identified as the author of a text message based solely on evidence that the message was sent from a cellular phone bearing the telephone number assigned to that person because “cellular telephones are not always exclusively used by the person to whom the phone number is assigned.”  Id. at *6.  Thus, some additional evidence, “which tends to corroborate the identity of the sender, is required.”  Id. at *6.  Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages themselves, id. at *5-6, such as where the messages “contain[ ] factual information or references unique to the parties involved,” id. at *5.  Other jurisdictions similarly have focused on the sender’s identity and looked to the context and content of the text messages for sufficient circumstantial evidence identifying the sender. See, e.g., Dickens v. State, 927 A.2d 32, 36-37 (Md. Ct. Spec. App. 2007) (identifying details in text messages that could have been known by only a small number of persons, including defendant, defendant’s conduct after the messages were sent, and nickname used in one message as circumstantial evidence sufficient to link defendant to the messages); State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006) (pointing to information in the message and that sender identified himself twice using the victim’s first name as sufficient circumstantial evidence that the victim sent the messages).”

NRS 484C.230.2 provides that the scope of a hearing regarding the revocation of a person’s privilege to drive “. . .must be limited to the issue of whether the person, at the time of  the test, had a concentration of alcohol of 0.08 or more in his blood or breath or a detectable amount of a prohibited substance in his blood or urine.” See also, Beavers v. State, Department
of Motor Vehicles and Public Safety, 109 Nev. 435, 438, 851 P.2d 432; 434 (1993). Also at issue  is whether the police officer “had reasonable grounds, at the time the officer directed the evidentiary test, to believe that the person had been driving or in actual physical control of a  vehicle while under the influence [of an intoxicant].” Id., 109 Nev. at 439, 851 P.2d at 434. The
Nevada Supreme Court has reiterated the law on the scope of the hearing and mentioned a third issue that can arise within the scope of the hearing, i.e., whether the person failed to submit to an  evidentiary test. Weaver v. State, Department of Motor Vehicles, 121 Nev. 494, , 117 P.3d  193, 196-197(2005).

The two hour rule set forth in NRS 484C. 110 (previously NRS 484.379) which is a criminal statute, does not apply to an Administrative Hearing. Such a hearing is civil in nature and not criminal. This is made clear in State, Department of Motor Vehicles v. Hiatt, 112 Nev. 868, 920 P.2d 116 (1996) where the Nevada Supreme Court stated: [T]he standards set by the legislature for revoking driving privileges in a civil proceeding under NRS 484.384 are different from those required for a conviction for DUI under NRS 484.379. Implied consent statutes provide for administrative, civil proceeding entirely separate and distinct from criminal statutes prohibiting drunk driving. (Citing to State, Dep ‘t of Mt. Vehicles v. Frangul, 110 Nev. 46, 49, 867 P. 2d 397,399 (1994) (Id, 112 Nev. at 870, 920 P.2d at 117-118).

The alcohol content at the time of the test on the blood is what is relevant. See NRS 484C.230.2 (previously NRS 484.387.2) which states that the scope of the hearing is, “limited to the issue of whether the person, at the time of the test, had a concentration of alcohol of 0.08 or more . . . .” (emphasis added). This rule was also recognized by the Nevada Supreme Court in Hiatt. “The scope of the review of an order of revocation of driving privileges is limited to the issues of whether the person failed to submit to an evidentiary test or had 0.10 percent or more by weight of alcohol in his blood at the time of the test.” (emphasis added) (Id., 112Nev. at 870, 920 P. 2d at 117)

Here’s a portion of the 11th Circuit’s opinion siding with John Doe and the Fifth Amendment:

We are unpersuaded by the Government’s derivation of the key/combination analogy in arguing that Doe’s production of the unencrypted files would be nothing more than a physical nontestimonial transfer. The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents. This argument badly misses the mark. In Fisher, where the analogy was born, and again in Hubbell, the Government never sought the “key” or the “combination” to the safe for its own sake; rather, the Government sought the files being withheld, just as the Government does here. Hubbell, 530 U.S. at 38, 120 S. Ct. at 2044 (trying to compel production of documents); Fisher v. United States, 425 U.S. at 394–95, 96 S. Ct. at 1572–73 (seeking to access contents possessed by attorneys).

Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory. See Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047. Hence, we conclude that what the Government seeks to compel in this case, the decryption and production of the contents of the hard drives, is testimonial in character.

Moving to the second point, the question becomes whether the purported testimony was a “foregone conclusion.” We think not. Nothing in the record before us reveals that the Government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives. . . .

Read the full opinion here:

In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011

In United States v. Jones, Defendant was under investigation for suspicion of trafficking narcotics.  Federal agents, acting without a warrant, attached a GPS tracking device to Jones’ vehicle for 28 days.  Investigators were led to Jones’ stash house where they discovered $850,000 in cash and just under 100 kilograms of cocaine.  He was indicted, tried and convicted on conspiracy to distribute and possession with intent to distribute charges.  Following a conviction he was sentenced to life imprisonment.

Ultimately, the Supreme Court affirmed the D.C. appeals court which held that admission during trial of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.   In reaching its decision, the Court noted that while the test for whether a search is unreasonable embodies ‘reasonable expectation of privacy’, this test “has been added to, and not substituted for, the common-law trespassory test.”   In finding the attachment of the device a trespass, the Court concluded a Fourth Amendment violation occurred.  While attaching such a device amounted to a trespass in violation of some of the longest standing Fourth Amendment precedent, the question remains whether the warrantless tracking constitutes an unreasonable search under the ‘reasonable expectation of privacy’ test.

Opinion here:

United States v. Jones (January 23, 2012)

North Las Vegas Municipal Court – Fine Reduction Program

The Court found that this testimony constituted inadmissible hearsay, in addition to a best evidence rule issue.  The Court found no reason for the State’s failure to admit a register receipt, price tag, or photograph of the same to establish the price of the stolen goods.  

Read the opinion here: Stephans v. State (October 2011)

Attached is a recent (12/5/2011) order by the federal magistrate following plaintiff’s motion for sactions filed after the failed attempt to depose larger than life casino-mogul Sheldon Adelson.  This order should be titled Civil Depositions 101.  It is a thorough read on the Do’s and Don’ts during this critical phase of litigation, and its reading worthy of at least one Ethics CLE credit.

Adelson order

Changes the maximum punishment a court may impose for a crime by a person who was under 18 years old when the crime was committed.  For a crime otherwise punishable by death, the maximum punishment is life imprisonment without the possibility of parole.  For non-homicide crime, the maximum punishment is life imprisonment with the possibility of parole.  Effective March 30, 2011 and applies retroactively. 

S.B 277 (Chapter 245) Electronic Transmission of Sexual Image of a Minor

Prohibits a minor from knowlingly or willfully using an electronic device to possess, transmit or distribute a sexual image of himself, herself or another minor.  If the images are of himself or herself, the minor is considered in need of supervision for the first offense and a delinquent for the second offense.  If the images are of another minor, the minor in willful possession of the images is a child in need of supervision, but if the image is transmitted or distributed, the minor commits a delinquent act.

A.B. 83 (Chapter 31) Identity Theft

This measure became effective October 1, 2011, and applies retroactively to a person who committed an identity theft crime before that date, if the applicable statute of limitations has commenced but not yet expired on that date.  This bill expands the statute of limitations for an identity theft felony against a victim who was under 18 years of age at the time the offense was committed to four years after the victim discovers, or reasonably should have discovered, the offense. 

A.B.  107 (Chapter 80) Identification Procedures

This law requires each law enforcement agency to adopt policies and procedures applicable to identification procedures, including live lineups, photo lineups and show-ups. 

A.B. 57 (Chapter 51) Sex Offenders

Among other things, this law specified the items that must be included in a record of registration of a sex offender or an offender convicted of a crime against a child.  The record must identify the offender and include information on the offender’s criminal history, employment or occupation, enrollment as a student, level of registration, residence, vehicles, volunteer service and other information required by federal law.

A.B. 142 (Chapter 41) Property Crimes

This bill changes the threshold amount of money or value misappropriatedm stolen or taken.  It changes the threshold between a misdemeanor and a gross misdemeanor, or between a misdemeanor and a category C or D felony, from $250 to $650.  It also changes the thresholds between a category B felony and a lesser felony from $2,500 to $3,500.

A.B. 321 (Chapter 59) Justifiable Homicide

This bill modifies the definition of “justifiable homicide” by providing that a person is not required to retreat before using deadly force if he or she is not the original aggressor, has a right to be at the location where deadly force is used, and is not actively engaged in conduct in furtherance of criminal activity at the time.

S.B. 257 (Chapter 282) Grafitti

Among other things, reduces from $5,000 to $500 the aggregate value of damage used to determine the penalty imposed for committing multiple grafitti offenses.   Persons who place grafitti on protected sites are guilty of a category C felony and must serve at least 10 days in jail as a condition of probation.  If the offender is under the age of 18, the court has authority to order the offender’s parents to participate in counseling.  The actual property owner may now institute a civil claim and recover triple damages, plus attorney’s fees and costs from the offender, or from the offender’s parents is the offender is under the age of 18. 

The court properly framed the issue as ”whether an officer has a reasonable suspicion that the driver and any passengers may be armed and dangerous.”  This “is a fact-specific inquiry that looks at the totality of the circumstances in light of common sense and practicality.”  United States v. Tinnie, 629 F.3d 749, 751 (7th Cir. 2011) (discussing Johnson) (internal quotation omitted).  Reasonable suspicion is measured by an objective standard.  See Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2080 (2011).

In reaching their holding, the Cortes court reasoned,

When Wadsworth arrived, Cortes had a knife in his lap; the presence of a knife in plain view in a lawfully stopped car contributes to reasonable suspicion that other weapons may be present, making the person armed and dangerous even if the knife is moved out of reach.  United States v. Vinton, 594 F.3d 14, 20-21 (D.C. Cir.), cert. denied, 562 U.S. ___, 131 S. Ct. 93 (2010).[3]  Despite being repeatedly asked, Cortes refused to keep his hands in plain view.  See United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (passenger’s refusal to obey “repeated orders to remain still and keep his hands in [officer’s] view” cited as part of the totality of circumstances justifying a patdown search).  After stating he had identification, Cortes contradicted himself and said he didn’t; “evasive responses to police questions can help support reasonable suspicion,” as can “contradictory answers to simple questions.”  Tinnie, 629 F.3d at 752.  Cortes and the driver appeared unusually nervous and agitated to Arrendale and Wadsworth, both experienced patrol officers.  Id. (“Tinnie acted suspiciously by moving around nervously as the officers approached the car”).  Finally, when Cortes got out of the car, he did so strangely, trying to conceal his hands and back from Arrendale.  See United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010) (upholding passenger frisk under Johnson based partly on furtive movements and the guarded way the passenger got out of the car).  Given all this, common sense tells us that a reasonable officer confronting Cortes at night during a traffic stop could reasonably suspect that Cortes was armed and that a frisk was necessary to protect himself and his partner.