In Nevada, Felony Possession of a Controlled Substance, NRS 453.336, is one of the most prevalent crimes for which people are charged with in Las Vegas. Here’s a typical scenario. You’re a tourist visiting Las Vegas. You buy some cocaine and go into a restroom stall at a nightclub at a popular hotel/casino. A casino security guard enters the restroom and hears you in the stall snorting cocaine. From there, the casino security guard then peers into the stall and observes you snorting cocaine. The security guard then escorts you to a holding cell within the casino and calls the police who come and interrogate you. Next, you are taken to the Clark County Detention Center where you are arrested and booked on one count of Possession of a Controlled Substance in violation of NRS 453.336.
Here’s another scenario. You’re a tourist and have cocaine in your pocket or in your purse. You go to one of the casino’s clubs and are searched by a security guard for no reason. The security guard finds cocaine and calls the police. You are then escorted to a private holding cell and the police are called. The police come and interrogate you about the drugs the security guard found on you. Next, you are booked and charged with violating this same criminal statute. In short, you now become a defendant.
Generally what happens is that State prosecutor offers to let the defendant plead guilty to a misdemeanor possession of dangerous drugs not to be introduced in to interstate commerce if the defendant has no prior arrests or convictions. If my client has a clean record, I never recommend that he or she plead guilty to this misdemeanor. The problem is that pleading guilty or “no contest” to this offense results in a conviction. These days, employers can and do discriminate against people who have some sort of run-in with the law – even for a misdemeanor. When an employer performs a background check on an applicant and sees that he or she pleaded guilty or “no contest” to this misdemeanor drug offense, the employer may decide not to hire the applicant. They figure the applicant has a drug problem and may be too much of a liability.
Now let’s go back to the two hypotheticals. How can we challenge these arrests? A criminal defense lawyer who challenges a search and/or an arrest as unconstitutional files a “motion to suppress.” What can we challenge in this case? Well, at first blush one would say the security guard in the first hypothetical infringed on the your reasonable expectation of privacy by peering in to the bathroom stall. After all, a bathroom stall is one of the most private areas where we do some of our most private bodily functions! But the one problem with this argument is that the security guard is a private actor, and not a state actor. In other words, if a police officer performed the same search by peering between the stall door and the stall frame to see you in your bathroom stall, this would arguably violate your Fourth Amendment right to be free from unreasonable searches because you have a reasonable expectation of privacy when you go to the bathroom. You don’t expect that someone, especially law enforcement, will be peering in to your stall.
The same issue is present in the second hypothetical. There, the security guard searched your pockets or purse looking for drugs without any reasonable suspicion of criminal activity or probable cause. In other words, the hotel/casino security guard had no reason to think you were doing anything illegal. Now, if by analogy, you’re walking down the street and a police officer comes up to you and for no reason searches you, then this is a clear violation of your Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement. The Fourth Amendment generally only applies to federal or state law enforcement. A security guard is generally not considered to be a law enforcement officer and therefore the Fourth Amendment doesn’t apply to the security guard’s conduct.
To illustrate this point further, imagine your neighbor sneaks in to your house because he believed you stole something from him and in the process discovers your stash of cocaine. If your neighbor goes to the police with the cocaine, you could be prosecuted for possession of a controlled substance (cocaine) and would have no ability to challenge the search because your neighbor is not a member of law enforcement! Now, if law enforcement went in to your house without a warrant because they were looking for drugs, then you would be able to challenge the search as illegal because law enforcement, unlike your neighbor, is a “state actor” and must comply with the Fourth Amendment and get a warrant before searching your house.
Let’s get back to our hypotheticals. What was the reason for the security guard peering in to your stall or searching you outside the entrance to the club? Some courts are not just ruling that it’s a private search and not governed by the Fourth Amendment. Some courts ask, “Was the search done to assist law enforcement efforts or further his own ends?” In the hypothetical of your neighbor, the search was done by him to further his own ends – to get back his property. So there’s no Fourth Amendment violation. But what about the security guard? Was he furthering his own ends? No! The security guard’s job is to make sure criminal activity doesn’t occur in the casino – that’s why he detained you and called the police and turned the cocaine over to the police. Furthermore, the Las Vegas Metropolitan Police Department works very closely with Las Vegas casino security personnel on a daily basis. So, you have a strong argument that the search violated your Fourth Amendment rights because the security guard did the search of the patrons to assist law enforcement efforts.
I never advise my clients who have no prior arrests in their past to plead guilty to the misdemeanor offer of possession of dangerous drugs not to be introduced in to interstate commerce. I can tell you that for every client I have represented – with no prior criminal history – who has been charged with Possession of a Controlled Substance in violation of NRS 453.336, I have negotiated a better deal where the case gets dismissed (i.e., charges dropped). My client would have to complete a class, pay a fine, perhaps does some community service, and have no new arrests for a 3-12 month period. (That’s called a “submittal on the record.”) As lawyers, we’re not allowed to make guarantees and I am not making a guarantee that I can do the same for you, but if you have been charged with Possession of a Controlled Substance, call me at (702)966-5310 and let’s discuss how I can help you with your drug crimes case in the state of Nevada.