WINNEMUCCA — Like the old-time circuit court riders, the justices of the Nevada Supreme Court were on the road last week hearing appeals in Wendover and Winnemucca.

The hearings were held at Lowry High School on Friday (May 6). For the benefit of the students, the justices explained the court process, the system of appeals, and basic legal concepts.

Hernandez (Raul) v State of Nevada

The first case heard by the justices involved local resident Raul Hernandez, who was convicted of possession of a controlled substance (PCS), a category E felony, in Feb. 2010.

CASE HISTORY:  Events began in 2008 when investigators from TRIDENT (Tri-County Drug Enforcement Team) alleged to have found drug paraphernalia in the car being driven by Hernandez.

The paraphernalia was an empty pen casing.  However, Hernandez was neither arrested or cited at the scene.

Instead, six months later investigators applied for a misdemeanor arrest warrant charging possession of drug paraphernalia.

Authorities later located Hernandez and allege at the time of his arrest he had two baggies of methamphetamine and tested positive for the use of methamphetamine.

He was charged with PCS and being under the influence of a controlled substance.  The possession of drug paraphernalia charge, for which he was originally arrested,  was dismissed shortly thereafter.

Hernandez was represented in court by Humboldt County Public Defender Matt Stermitz.

Stermitz filed a motion in the 6^th Judicial District Court in an attempt to have the evidence dismissed because 1) the affidavit in support of the search warrant was lacking essential details necessary for a warrant and 2) six months later the information was stale anyway.

Judge Michael Montero denied that motion.

Hernandez negotiated with the Humboldt County DA’s Office and pleaded no contest to the single charge.  He was sentenced to a three-year term of probation but was denied the potential for a diversion program.

THE APPEAL: Stermitz appealed the judgment of conviction on allegations his client’s Fourth Amendment rights had been violated because there was a lack of probable cause to support the arrest warrant.

Stermitz asked the court to suppress the evidence and reverse the district court’s decision to deny his motion to suppress the evidence.

During arguments on Friday, he noted the only fact submitted to the Union Township Justice of the Peace in support of the warrant was the statement that Hernandez had “an item” associated with the use of controlled substances – without even saying what the item was.

Stermitz argued the justice of the peace should be in a position to independently examine the facts contained in the affidavit to determine if an arrest warrant is appropriate.

In the matter at hand there were no facts, Stermitz argued, the DA’s Office (who submitted the complaint and  affidavit in support of the complaint) simply concluded Hernandez had drug paraphernalia.

The affidavit in support of the complaint noted the DA’s Office was in possession of a report written by the investigator, which presumably contained facts not made available to the justice of the peace signing off on the warrant.

Justice Cherry asked what more should have been in the warrant.

Stermitz noted there is a legal definition for possession of drug paraphernalia, which includes the different types of possession.  For example, there’s a difference between finding contraband in a suspect’s pocket and finding contraband in the car a suspect is driving.

In this case the defendant was driving his mother’s car on the day TRIDENT alleged to have found the empty pen casing.  However, he was not in the car at the time the casing was discovered. All of which might have been handy for the justice of the peace to know.

Stermitz reiterated there simply weren’t any facts that would have allowed the justice of the peace to make an independent assessment of whether or not probable cause existed to justify the arrest warrant.

Instead, the affidavit contained a conclusory statement, which was not acceptable for an arrest warrant.

Stermitz also argued waiting six months to ask for the arrest warrant represented a bad faith prosecution. Further, that Judge Montero’s decision to deny diversion was an abuse of discretion.

Providing the rebuttal argument was Chief Deputy DA Kevin Pasquale, who was put into the position of defending a complaint and affidavit he had not written.

Justice Cherry noted, “The affidavit could be better.  If you were drafting it, you would have done better.”

Pasquale agreed the language was broad.  However, as he noted, the statute is broad and further the burden of proof for issuing an arrest warrant is marginal – as opposed to proof beyond a reasonable doubt.

In terms of suppressing evidence, Pasquale countered there was no misconduct on the part of the arresting officer.

He commented, “This officer had no reason to believe the warrant was not good on its face.”

RESPONSE: Watching from the audience were students from LHS and fifth graders from French Ford Middle School who are currently studying the Constitution through the We the People program.

Three FFMS students were asked to respond  to seeing the Constitution in action (shown right Christopher, Crystal, and Cede.

Christopher said watching the Nevada Supreme Court in action was fun, especially the part with the Fourth Amendment, and he thought the justices would suppress the evidence.

When asked what she thought Crystals said, “It was long.” When asked if she thought the evidence would be suppressed, she responded, “Maybe.”

Cede commented, “It was awesome to learn what the problem was and what the police did.”  She thought the evidence would be suppressed.