Las Vegas Law Enforcement Agencies Wrongful Use Utility Info
Law Enforcement Agencies’ Improper Use Of Utility Information
We recently reported on teams of law enforcement agents showing up at the private residences of persons who have been issued a registry identification card by the Division of Health and Human Services and demanding to see the cardholder’s personal marijuana grow to make sure the cardholder is in compliance with medical marijuana laws. We reported that law enforcement was improperly accessing the Division of Health and Human Services database to identify card holders. We have discovered that law enforcement has been employing yet another improper tactic to obtain search warrants. This involves obtaining information relating to a person’s utility consumption.
In a recent case involving a medical marijuana cardholder, law enforcement obtained a search warrant from a district court judge by convincing the judge that the cardholder’s purportedly excessive use of electricity constituted probable cause that the residence was being used for an illegal grow operation. During the discovery phase of the case, it was disclosed that an administrative subpoena was issued by the Las Vegas Metropolitan Police Department to NV Energy for the home of the cardholder and several of the neighboring residences.
NRS 704.201 permits the chief executive officer of a law enforcement agency or a command officer designated by the chief to issue what is called an “administrative subpoena” to a public utility for the name and address of a person listed in the records of the customers of the public utility. A “command officer” is an officer in charge of a department, division or bureau of the law enforcement agency. Therefore, the administrative subpoena must be issued by someone holding one of the highest positions within law enforcement. Upon receipt of a subpoena issued by a law enforcement agency, the public utility is required to disclose the name and address of the person listed in the records of customers.
The statute only permits law enforcement to obtain the name and address of the customer. It does not entitle law enforcement to the customer’s consumption information. However, law enforcement has been demanding and obtaining this information nonetheless. In the case referenced above, law enforcement improperly obtained the consumption information for the cardholder’s residence and the consumption information for some of the cardholder’s neighbors. When the consumption of the cardholder’s residence was compared to the neighboring residences it appeared that the cardholder’s residence was using an excessive amount of electricity, therefore law enforcement was able to convince a judge to sign a search warrant.
There are at least two problems with this scenario. First, the consumption information is not included in the information that is to be released pursuant to the administrative subpoena powers of the law enforcement agencies. This is arguably a violation of the person’s privacy rights but most certainly an abuse of the subpoena power and outside the confines of the statute. Second, the consumption information alone, without proper context, is not reliable to support the issuance of a search warrant. In the above referenced case, while the neighboring residences were similar in size, the number of occupants in the residences was not the same. For example, one of the neighbors was a single adult person whose employment took him out of town frequently. The occupant was hardly ever home and used very little electricity. The other neighboring residence was occupied by a retired couple. On the other hand, there were several adult persons living in the residence of the cardholder, each of whom worked different jobs at different times of the day or evening. The utility consumption was naturally much greater than that of the retired couple or the single adult professional who was rarely at home. This was obviously not a reliable comparison, yet it was sufficient to convince a judge to sign a search warrant, because frankly, judges rarely ask questions about the information fed to them in a search warrant request. It is up to the defense attorney to investigate and challenge the lawfulness of the search after an arrest is made and seek to suppress the evidence illegally obtained.
Prosecution of an individual resulting from a search warrant based on this kind of deceptive information could be an abuse of process that may be the basis for a bad faith claim under a recently passed statute allowing for attorneys’ fees and damages for vexacious prosection.
The above case was resolved in favor of the cardholder. However it is yet another example of the improper methods being employed by law enforcement to obtain the private information of medical marijuana card holders. If you have been charged with operating a grow house, illegal possession, manufacture or cultivation of marijuana, The Wright Law Group, P.C. is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.