NRS 171.104 is the Nevada law that defines arrest. This statute states that:
"An arrest is the taking of a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person."
Arrests are often the first stage in the Nevada criminal process. Whenever police arrest suspects pursuant to NRS 171.104, the police are required to read them their "Miranda warnings" prior to interrogating them.
Police usually ask judges to issue a Nevada arrest warrant before they apprehend suspects. But warrants are not required to take suspects into custody as long as the police have "probable cause" to believe they committed a crime.
In this article, our Las Vegas criminal defense attorneys discuss what exactly arrests are in Nevada under NRS 171.104 and how they work. Click on a topic to jump to that section:
- 1. Definition
- 2. Arrest versus detention
- 3. Timing and execution
- 4. Custodial interrogation and Miranda
- 5. Arrest warrants versus warrantless arrests
- 6. Citizen's arrest
NRS 171.104 defines an arrest as "the taking of a person into custody, in a case and in the manner authorized by law."1 Police may arrest people when they have "probable cause" to believe they committed a crime.2
In the typical arrest situation, police officers verbally inform suspects they are under arrest. Then police place them in handcuffs and transfer them to the police station for booking, mug shots, and fingerprints. Suspects remain in law enforcement custody pending how the criminal case proceeds.
Most arrestees are eligible to be released on Nevada bail or own recognizance release in Nevada. Arrestees who get released are given a court date to return for their arraignment in Nevada (the formal reading of the criminal charges).
An arrest under NRS 171.104 is when the police take criminal suspects into custody. In contrast, a detention is when police temporarily detain criminal suspects in order to determine whether to arrest them.
Police are legally allowed to temporarily detain people they "reasonably" believe may have committed a crime. This "reasonable belief" standard police need to detain a suspect is lower than the "probable cause" standard police need to arrest a suspect.
During a detention, the detainees are required to identify themselves. However, they are not required to answer any other questions. If the police reasonably believe detainees are armed or are safety threats, the police may search them to the extent necessary to discover and seize any weapons.
These detentions must be a short as possible, and in no event more than an hour. And detentions must take place in the location where the police encountered the suspects; police may not transport detainees for just a detention.
If during a detention the police gain probable cause to believe the detainee committed a crime, the police can execute an arrest. But if the detention does not lead to probable cause, then the police must release the detainee.3
Meanwhile, people suspected of committing a Nevada misdemeanor may be arrested only between 7:00 A.M. and 7:00 P.M. unless either of the following situations occurs:
- the magistrate judge directed otherwise;
- the suspect allegedly committed the misdemeanor in the arresting officer's presence;
- the suspect allegedly committed the misdemeanor in the presence of a private citizen, who immediately conducts a citizen's arrest (go to section 6 for more information);
- the suspect allegedly violated a Nevada restraining order (NRS 33.350) against domestic violence;
- the suspect is already in custody as a result of another lawful arrest;
- the suspect voluntarily surrenders in response to an outstanding arrest warrant;
- the suspect allegedly committed the Nevada crime of battery domestic violence (NRS 200.485) within the last 24 hours; or
- the suspect is found in public, the arrest is made in public, there is an arrest warrant, and the police discovered the misdemeanor because they had probable cause to stop, detain, or arrest the suspect for another alleged offense4
If the police have reasonable grounds to believe the suspect is hiding in a particular location, the police must first demand that they be let in and explain the reason. Only then may the police lawfully break open a door or window to get inside.
An officer may use deadly force to arrest a person only if:
- it is necessary to prevent escape; and
- the police gave a warning (if feasible); and
- there is probable cause to believe the suspect poses a threat of serious bodily harm or committed a felony which involves serious bodily harm or the use of deadly force
And if the suspect has any dangerous weapons on his/her person, the arresting officer may seize them.5
Learn more in our articles on the Nevada crime of resisting arrest (NRS 199.280) and the Nevada crime of battery on a peace officer (NRS 200.481(2)(c)-(d)).
Police are required to read arrestees their rights -- called Miranda warnings -- before they are placed in "custodial interrogation." Like it sounds, custodial interrogation has two elements:
- the arrestee is in police custody (and therefore not free to leave), and
- the police are asking questions of ("interrogating") the arrestee
Therefore, police do not have to read arrestees their Miranda rights until they begin asking them questions. Depending on the situation, the interrogation can occur several hours or longer after the physical arrest.
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."6
Police need a current and valid arrest warrant in order to arrest a person in Nevada unless they have probable cause to believe the suspect committed a crime.
Note that if a person gets arrested without probable cause, the illegal arrest may be sufficient grounds to get any ensuing criminal charges dismissed.
5.1. Arrest warrants
When police believe a person may have committed a crime, the police typically compose an affidavit (called an "information") explaining why there is probable cause to suspect the person. Then the police go to court and ask the judge to issue an arrest warrant.
If the judge agrees that there is probable cause, the court will issue the warrant. At that point, the police are free to seek out the suspect to arrest him/her pursuant to NRS 171.104.
(In rare cases, an arrest warrant is issued following an "indictment" rather than an "information." An indictment is when a Nevada grand jury determines whether sufficient evidence exists to arrest a suspect of a crime.)
As long as an arrest warrant is outstanding, the person named in the warrant is vulnerable to arrest. Even if the person is pulled over for a minor traffic offense, traffic officers can arrest the person once they run the person's name and see there is an outstanding warrant.7
5.2. Warrantless arrests
Sometimes there is no time to go to a judge and get an arrest warrant before apprehending a criminal suspect. This frequently happens when the alleged crime just occurred or is about to occur, or if the suspect is fleeing the scene.
Police may execute a warrantless arrest in either of the following circumstances:
- The suspect committed any crime in the presence of the officer;
- The suspect committed a gross misdemeanor or felony (whether or not the officer was present); or
- A felony or gross misdemeanor has been committed, and the officer has probable cause to believe that the suspect committed it8
A Nevada citizen's arrest under NRS 171.126 is when a person who is not a peace officer places another person under arrest. Citizen's arrests are much rarer than arrests by law enforcement, but they are perfectly legal under either of the following three circumstances:
- the suspect committed any crime in the private citizen's presence;
- the suspect committed a felony whether or not in the private citizen's presence; or
- a felony has been committed, and the private citizen has "reasonable cause" for believing the suspect committed the felony9
Call a Nevada criminal defense attorney...
Are you facing criminal charges in Nevada? Our Las Vegas criminal defense attorneys are available for a FREE consultation. Call us at 702-DEFENSE (702-333-3673) to talk right now. We may be able to get your charges lessened or even dismissed.
In California? See our article on California arrest warrants.
In Colorado? See our article on Colorado arrests.
- NRS 171.104 Arrest defined; by whom made. An arrest is the taking of a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.
- NRS 171.1231 Arrest if probable cause appears. At any time after the onset of the detention pursuant to NRS 171.123, the person so detained shall be arrested if probable cause for an arrest appears. If, after inquiry into the circumstances which prompted the detention, no probable cause for arrest appears, such person shall be released; see, e.g., Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968)("We next turn to the appellant's attack on his arrest. We find that in each instance the arrests were reasonable and made upon probable cause, and are valid.").
- NRS 171.123 Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations.
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of the person's parole or probation.
3. The officer may detain the person pursuant to this section only to ascertain the person's identity and the suspicious circumstances surrounding the person's presence abroad. Any person so detained shall identify himself or herself, but may not be compelled to answer any other inquiry of any peace officer.
4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested.
NRS 171.1232 Search to ascertain presence of dangerous weapon; seizure of weapon or evidence.
1. If any peace officer reasonably believes that any person whom the peace officer has detained or is about to detain pursuant to NRS 171.123 is armed with a dangerous weapon and is a threat to the safety of the peace officer or another, the peace officer may search such person to the extent reasonably necessary to ascertain the presence of such weapon. If the search discloses a weapon or any evidence of a crime, such weapon or evidence may be seized.
2. Nothing seized by a peace officer in any such search is admissible in any proceeding unless the search which disclosed the existence of such evidence is authorized by and conducted in compliance with this section.
- NRS 171.136 When arrest may be made.
1. If the offense charged is a felony or gross misdemeanor, the arrest may be made on any day, and at any time of day or night.
2. If it is a misdemeanor, the arrest cannot be made between the hours of 7 p.m. and 7 a.m., except:
(a) Upon the direction of a magistrate, endorsed upon the warrant;
(b) When the offense is committed in the presence of the arresting officer;
(c) When the person is found and the arrest is made in a public place or a place that is open to the public and:
(1) There is a warrant of arrest against the person; and
(2) The misdemeanor is discovered because there was probable cause for the arresting officer to stop, detain or arrest the person for another alleged violation or offense;
(d) When the offense is committed in the presence of a private person and the person makes an arrest immediately after the offense is committed;
(e) When the arrest is made in the manner provided in NRS 171.137;
(f) When the offense charged is a violation of a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive;
(g) When the person is already in custody as a result of another lawful arrest; or
(h) When the person voluntarily surrenders himself or herself in response to an outstanding warrant of arrest.
- NRS 171.138 Breaking open door or window: Making arrest. To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open a door or window of the house, structure or other place of concealment in which the person to be arrested is, or in which there is reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.
NRS 171.1455 Use of deadly force to effect arrest: Limitations. If necessary to prevent escape, an officer may, after giving a warning, if feasible, use deadly force to effect the arrest of a person only if there is probable cause to believe that the person:
1. Has committed a felony which involves the infliction or threat of serious bodily harm or the use of deadly force; or
2. Poses a threat of serious bodily harm to the officer or to others
NRS 171.146 Weapon may be taken from person arrested. Any person making an arrest may take from the person arrested all dangerous and offensive weapons which the person arrested may have about his or her person.
- Rosky v. State, 121 Nev. 184, 111 P.3d 690 (2005)("The Fifth Amendment privilege against self-incrimination provides that a suspect's statements made during custodial interrogation are inadmissible at trial unless the police first provide a Miranda warning." "Custody" for Miranda purposes means a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. If there is no formal arrest, the pertinent inquiry is whether a reasonable person in the suspect's position would feel "at liberty to terminate the interrogation and leave." A court must answer this question by taking an objective look at "all of the circumstances surrounding the interrogation." The United States Supreme Court has recently indicated that a suspect's prior history with law enforcement has no bearing on the objective determination of whether the suspect is in custody for Miranda purposes, although this factor may be relevant in deciding whether a confession is voluntary.").
NRS 171.108 Contents of warrant of arrest. The warrant of arrest is an order in writing in the name of the State of Nevada which shall:
1. Be signed by the magistrate with the magistrate's name of office;
2. Contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty;
3. State the date of its issuance, and the county, city or town where it was issued;
4. Describe the offense charged in the complaint; and
5. Command that the defendant be arrested and brought before the nearest available magistrate.
NRS 171.124 Arrest by peace officer or officer of Drug Enforcement Administration.
1. Except as otherwise provided in subsection 3 and NRS 33.070 and 33.320, a peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may make an arrest in obedience to a warrant delivered to him or her, or may, without a warrant, arrest a person:
(a) For a public offense committed or attempted in the officer's presence.
(b) When a person arrested has committed a felony or gross misdemeanor, although not in the officer's presence.
(c) When a felony or gross misdemeanor has in fact been committed, and the officer has reasonable cause for believing the person arrested to have committed it.
(d) On a charge made, upon a reasonable cause, of the commission of a felony or gross misdemeanor by the person arrested.
(e) When a warrant has in fact been issued in this State for the arrest of a named or described person for a public offense, and the officer has reasonable cause to believe that the person arrested is the person so named or described.
2. A peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may also, at night, without a warrant, arrest any person whom the officer has reasonable cause for believing to have committed a felony or gross misdemeanor, and is justified in making the arrest, though it afterward appears that a felony or gross misdemeanor has not been committed.
3. An officer of the Drug Enforcement Administration may only make an arrest pursuant to subsections 1 and 2 for a violation of chapter 453 of NRS.
- NRS 171.126 Arrest by private person. A private person may arrest another:
1. For a public offense committed or attempted in the person's presence.
2. When the person arrested has committed a felony, although not in the person's presence.
3. When a felony has been in fact committed, and the private person has reasonable cause for believing the person arrested to have committed it.