WINNEMUCCA — Public Defender Matt Stermitz has filed a request with the Nevada Supreme Court for an en banc reconsideration of their decision to deny the appeal in Raul Hernandez v State of Nevada.

The decision to deny the appeal was made by a panel of three justices. An en banc reconsideration would put the matter before the entire court.

Stermitz appealed the case last year seeking to overturn a 6^th Judicial District Court decision by Judge Michael Montero in which he denied a motion for suppression of evidence.

Hernandez was arrested on a warrant charging possession of drug paraphernalia.  At the time of his arrest he had methamphetamine and was additionally charged with possession of a controlled substance and being under the influence of a controlled substance.  The paraphernalia charge was dismissed.

Stermitz sought to have the evidence suppressed based on faulty paperwork.

He has argued Union Township Justice of the Peace Gene Wambolt had insufficient information from the Humboldt County DA’s Office to issue the warrant upon which Hernandez was arrested.

The affidavit in support of the warrant request prepared by then Chief Deputy DA Brian Williams, who’s no longer with that office, stated outright the defendant had drug paraphernalia without giving any other information – including what the drug paraphernalia was.

As Stermitz noted in arguments before the NSC in May, a magistrate cannot independently weigh whether or not sufficient probable cause exists to issue an arrest warrant without information.

Although the  NSC agreed the affidavit was conclusory, even called it troubling, they noted the error did not belong to the arresting officer -- who believed he had a valid warrant when he arrested Hernandez for misdemeanor possession of drug paraphernalia.

For Stermitz, that wasn’t the point.  The point was the affidavit before the magistrate was conclusory, a criminal justice no-no.

Quoting from another case previously before the NSC, Watson v Sheriff, Lyon County (1977) Stermitz noted the court found a complaint that contains nothing but conclusions is insufficient for the magistrate to issue an arrest warrant.

Stermitz pointed out the facts of the Watson and Hernandez cases were essentially the same; yet, the court affirmed in the Hernandez case.

In the request for en banc reconsideration, Stermitz also quoted from US v Leon, which established the good faith exception to the exclusionary rule.

The Leon case essentially made an exception to the rule that evidence should be suppressed if it was gathered in violation of the Fourth Amendment where law enforcement officers had reason to believe their actions were legal.

In the case at hand, the NSC  ruled officers acted in good faith in arresting Hernandez based on their reasonable believe the arrest warrant was valid.

As Stermitz notes, even in Leon the United States Supreme Court insisted the affidavit in support of the arrest warrant had to contain some old-fashioned probable cause.

Stermitz concludes, “The district court’s decision to deny Hernandez’s motion to suppress evidence should be reversed. The evidence suppressed.  The judgment of conviction set aside.”

Previous Posts:

NSC affirms lower court’s decision in drug case 

NSC hears area appeals at LHS 

Evidence stands – defendant deals