WINNEMUCCA — The Nevada Supreme Court has upheld the decision of the district court judge to deny a motion to suppress evidence in a 2008 drug case. The unpublished order was filed on Monday (Sept. 19) in Raul Pimentel Hernandez v State of Nevada.

Hernandez was convicted in 2010 of felony possession of a controlled substance, a category E felony, and was sentenced to a three-year term of probation.  He was denied the opportunity for diversion due to a previous drug conviction.

CASE HISTORY:  Hernandez was the subject of an investigation conducted by the Tri-County Drug Enforcement Team in 2008.

At that time, Sgt. Jason Franklin alleged to have found drug paraphernalia in the car Hernandez was driving.  The paraphernalia was an empty pen casing with cocaine residue.

The suspect was neither arrested nor cited at the scene; instead, TRIDENT applied for an arrest warrant six months later.

Hernandez was arrested on the warrant and at the time  had methamphetamine.  He was charged with possession of a controlled substance, being under the influence of a controlled substance, and possession of drug paraphernalia.

The case proceeded, however, on the single charge of PCS as the other charges were dismissed by the DA’s Office.

Public Defender Matt Stermitz filed a motion in 6^th Judicial District Court to suppress the evidence arguing 1) the affidavit in support of the search warrant was lacking essential details necessary for a warrant and 2) the warrant wasn’t obtained until six months later and the information was stale anyway.

Judge Michael Montero denied that motion.

THE APPEAL:  Stermitz appealed the district court’s decision to the NSC.

In the appeal he argued his client’s Fourth Amendment rights had been violated because there was a lack of probable cause to support the arrest warrant. He asked the higher court to suppress the evidence and reverse the district court’s decision to deny his motion to suppress the evidence.

During arguments before the NSC in May, held in Winnemucca, 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.

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 at sentencing was an abuse of discretion.

NSC RESPONDS:  On the first issue, concerning the affidavit in support of the search warrant, drafted by former Chief Deputy DA Brian Williams, the NSC agreed the statements were conclusory in nature and called the document “troubling”.

However, they continue, the use of the exclusionary rule was meant to deter deliberate, reckless or gross negligent conduct, which the defense failed to prove in this case.

The exclusionary rule is invoked to exclude evidence from consideration when it has been gathered or analyzed in violation of the defendant’s Constitutional rights.

Although the affidavit in support of the search warrant may have been substandard, Sgt. Franklin’s reliance on the validity of the warrant in arresting Hernandez was reasonable.

The NSC concluded Montero did not err in denying the motion to suppress.

On the issue of bad faith prosecution, because Franklin waited six months before requesting the search warrant, the NSC concluded no error occurred because … well, he can do that.  Nevada Revised Statutes gives law enforcement a year to request an arrest warrant, and the charge was ultimately dismissed, at any rate.

On the last issue, that Judge Montero abused his discretion in denying the defendant the opportunity for diversion and treatment, the NSC found no abuse of discretion.

Although the defense argued Hernandez was qualified for diversion and treatment, he had previously been convicted of a drug crime, which tainted his ability to apply for diversion.

Further, the district court judge has wide discretion in granting diversion, which the higher court will not disturb absent abuse of discretion.  Additionally, the defendant was granted probation, so his sentencing was not so outrageous as to shock the conscience.

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