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Possession of Cell Phone Doesn’t Violate Nevada Escape Device Statute

The Nevada Supreme Court has held that a statute prohibiting prisoners from possessing escape devices does not encompass possession of a contraband cell phone.

Pursuant to NRS 212.093(1), prisoners are prohibited from having “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping.”

Pershing County jail prisoner Nickolas Mark Andrews was charged with violating NRS 212.093(1) when guards discovered a cell phone hidden in a box under his bunk. The trial court agreed with Andrews, however, that the statute does not prohibit cell phone possession. The charge was dismissed and the state appealed.

The Nevada Supreme Court affirmed, finding that the statute’s plain language “does not prohibit the possession of cell phones.” Therefore, the district court had correctly dismissed the charge against Andrews. Nevertheless, the state argued “that the phrase ‘designed or commonly used for the purpose of escaping’ brings cell phones within the scope of the statute.”

Rejecting this “overambitious reading,” the Court held it is “clear that the aim of the statute is to prohibit the possession of devices used to forcibly break out of, or physically flee from, a jail cell.” The Supreme Court found that “In stark contrast to the items enumerated in NRS 212.093(1), it would be virtually impossible to use a cell phone” to forcibly escape from custody.

“In the broadest sense, a cell phone could arguably be used to assist in an escape as it could be used to help enlist a third party to provide a getaway ride once an inmate has already fled from his or her jail cell,” the Court acknowledged. “But by this rubric, virtually any item – even shoes or spectacles – could fall within the scope of the statute because it could help an inmate to escape or evade recapture. Thus, if the State’s argument were credited, then practically any item could fall within the scope of the statute.”

Instead, the Nevada Supreme Court concluded “that by its plain and unambiguous language, NRS 212.093(1) does not prohibit county jail inmates from possessing cell phones.” The Court noted that a separate statute, NRS 212.165(3), prohibits state prisoners from having a “portable telecommunications device” without authorization, but the legislature did not extend that prohibition to jail prisoners. See: Sheriff, Pershing County v. Andrews, 286 P.3d 262 (Nev. 2012).

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