High court questions ‘Downtown Initiative’

CARSON CITY -- A Nevada Supreme Court ruling on a drug case called into question the legality of a Las Vegas police policy targeting downtown street crime.

In an order dated Monday, the Supreme Court reversed a decision by Clark County District Judge Donald Mosley, who rejected Michael Dulin-Evans' attempt to withdraw a guilty plea on a drug charge. The Supreme Court panel of three judges ordered Dulin-Evans be allowed to withdraw his plea because of concerns he wasn't given good advice by his attorney.

The guilty plea was made despite questions about the legality of Dulin-Evans' search and arrest, carried out under the "Downtown Initiative," which called for people who have criminal records for crimes downtown to be arrested rather than cited.

Dulin-Evans jaywalked when he crossed a downtown Las Vegas street against a signal in 2005. A police officer, rather than cite him for the misdemeanor offense, arrested Dulin-Evans based on the "Downtown Area of Command Strategic Initiative." A search then revealed that Dulin-Evans was in possession of controlled substances, two hypodermic needles and money.

The initiative's legality was not resolved in the Supreme Court order.

But Allen Lichtenstein, general counsel for the ACLU of Nevada, which filed a "friend of the court" brief in the matter, said the court has expressed its concerns now on two different occasions about the initiative in Dulin-Evans' case.

"I think it is a clear message that the Nevada Supreme Court sees some major constitutional issues surrounding the Downtown Initiative," he said. "Very clearly it raises some fundamental issues about mandating that someone be arrested based on his status."

Whether the Dulin-Evans case becomes the vehicle to ultimately challenge the initiative remains to be seen, Lichtenstein said.

Las Vegas police Capt. Will Minor, who is head of the Las Vegas police department's downtown area command, said the initiative involved more than arresting suspects with criminal records.

"That was a very small part of the Downtown Initiative. The Downtown Initiative has, at this point, 17 different strategies," he said.

Minor referred further questions to the department's general counsel, who was not available for comment.

In its first review of the case, the Supreme Court said Dulin-Evans should have had a hearing on his request to withdraw his guilty plea. The court at that time said it appeared that the police officer's stated reasons for arresting and searching Dulin-Evans, the Downtown Initiative, violated Nevada law.

At the subsequent hearing on whether he could withdraw his plea in Mosley's courtroom, Dulin-Evans' trial counsel said a motion to suppress the evidence from the search was not heard because Dulin-Evans had accepted the plea negotiations. The attorney, Marisa Border, testified that the decision to accept the guilty plea was made by Dulin-Evans and that the motion to suppress the evidence, "could go either way."

By accepting the plea, Dulin-Evans avoided the possibility of being found a habitual criminal, which would have carried an additional penalty.

The Supreme Court, in the 12-page decision, took Mosley to task for limiting the evidentiary hearing it had ordered in its previous ruling. Mosley did not allow evidence or testimony relating to the legality of the arrest, the court said.

The court said an attorney must "reasonably inform" a client about the potential merits of a motion to suppress evidence.

The arguments in that motion, which was never heard, "correctly identified the highly questionable nature of the arrest pursuant to the Downtown Initiative and the subsequent search and seizure," the court said.

The court also said it was "troubled" by Mosley's admission that he had not read the court's prior order requiring the evidentiary hearing. The court directed that the case be assigned to a different judge for new trial proceedings.

Review-Journal writer Alan Choate contributed to this report. Contact Review-Journal Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or (775) 687-3900.