An effective defense to Nevada criminal charges is that the police executed an illegal search. If the court agrees that the cops committed misconduct, it can disregard any evidence found from the unlawful search. This may result in the entire case getting dismissed.
This article explains "search and seizure" laws in Nevada. Continue reading to learn about what constitutes legal searches and how to suppress illegally-obtained evidence.
1) What is a "search" and "seizure" in a Nevada criminal case?
"Searches" are government intrusions into a person's reasonable expectation of privacy. Similarly "seizures" are when the government takes possession of a person's property. An example of a search and seizure is cops rummaging through a person's home and taking drugs found there as evidence.
2) Are government searches and seizures legal in Nevada criminal cases?
It depends. The Fourth Amendment of the U.S. Constitution protects citizens from "unreasonable searches and seizures" by the government. There are strict guidelines that law enforcement must follow in order for a search and seizure to be considered "reasonable" and therefore legal.
Note that the Fourth Amendment pertains both to federal police as well as to state and local police in Nevada. Also note that the Fourth Amendment does not apply to non-governmental entities. For example, private detectives aren't constrained by the Fourth Amendment like the police are.
3) What is a search warrant in Nevada?
A search warrant is a court order permitting police to search private locations for evidence. Judges may issue search warrants only if the police demonstrate "probable cause" that a crime has occurred. A mere suspicion of criminal activity with no supporting proof is not enough to justify a search warrant.
Note that valid warrants must be supported by the police's oath or affirmation. In addition, valid warrants must describe in detail the location to be searched and any things to be seized. Learn more about search warrants in Nevada.
4) Are all search warrants issued in Nevada valid?
Ideally, they should be, but courts sometimes make mistakes and issue bad warrants. A warrant is invalid if it includes any of the following defects:
- The officer who applied for the search warrant lied to the court about having probable cause to believe a crime occurred.
- The warrant was so unspecific or overbroad as to the places and things to be searched that no officer could have reasonably presumed that the warrant was valid.
- The judge who issued the warrant wasn't neutral and disinterested.
Note that searches done pursuant to an illegal search warrant are themselves illegal. Also note that a valid search warrant doesn't necessarily guarantee a valid search ... if the police stray from the limits set out in the search warrant, the search is illegal.
5) Do police have to get a search warrant in order to conduct a legal search in Nevada?
Yes, unless the police have a good reason not to get a search warrant first. Valid exceptions to this "search warrant requirement" include the following:
- Consent. If police ask a person to conduct a search of his/her person or property and the person agrees, then it's legal for the cops to search without getting a warrant. Note that the consent has to be freely and voluntarily given, and the person can usually withdraw consent during the search.
- Search incident to lawful arrest. If the police legally arrest someone, the law allows them to then search that arrestee's body and the area within the arrestee's "immediate control" to seize any relevant evidence, contraband or weapons.
- Plain view. If the police have authority to search a certain location, they can then seize any items in "plain view" that the police have probable cause to think is evidence of a crime. For example, if a cop gets a warrant to search a home for drugs, and the cop sees a TV in the home that was stolen from a store, the cop may seize the TV.
- Automobile exception. In most cases, police can search cars without a warrant if they reasonably believe it contains evidence of a crime. The reason for this exception is that drivers have a reduced expectation of privacy because cars are mobile.
- Inspections. Common examples of inspections include Nevada DUI sobriety checkpoints airport security searches, border searches, and health inspections.
- Exigent circumstances. Police don't have to get a search warrant if doing do would allow a suspect to escape or cause the destruction of relevant evidence or result in some other consequence that would thwart justice. Pahrump criminal defense attorney Michael Becker gives an example of how prompt police action trumps warrant procedures:
A Reno cop is driving down the street and hears a woman crying with pain from a house. The cop immediately pulls over and breaks into the house, where he finds a man punching the woman. The Reno Court would probably find that the cop's warrantless entry into the home was justified because he suspected from the cries that someone's safety was in immediate jeopardy.
- No reasonable expectation of privacy. Fourth Amendment protection does not kick in if the person has no reasonable expectation of privacy in the place the police are searching. Examples of places not considered private include abandoned property and stolen vehicles.
Note that if a person has a reasonable expectation of privacy somewhere, he/she still isn't allowed to break the law in that location. All a reasonable expectation of privacy means is that the police can't search that location without following proper warrant procedures.
6) Is evidence found from an illegal search admissible in a Nevada criminal case?
No. The exclusionary rule prohibits the prosecution from admitting evidence obtained from an illegal search or seizure. If not for the exclusionary rule, police would have no incentive to do lawful searches and seizures in the first place.
Note that "secondary" or "derivative" evidence obtained as an indirect consequence of an illegal search is also inadmissible. This is called the "fruit of the poisonous tree" doctrine because the illegal search "taints" any secondary evidence that wouldn't have been found but for the illegal search. Goodsprings criminal defense attorney Neil Shouse explains this concept with an illustration:
Police search Tom's Henderson house pursuant to an invalid search warrant to find drugs. While searching through drawers, police find jewelry that has been reported stolen. Tom is then booked at the Henderson Detention Center for theft charges. Tom's attorney argues that the jewelry should be excluded as evidence. The Henderson Court agrees because the jewelry was found only because of an illegal search warrant.
Note that secondary evidence may be admissible in a criminal case if the prosecution can show either that 1) the evidence would have probably been found regardless of the legal search, or that 2) the "tainted" evidence is so removed from the illegal search that it's nonsensical to apply the exclusionary rule.
Also note that the exclusionary rule does not extend to coerced confessions or illegal identifications unless they resulted from an illegal search or are otherwise intertwined with an illegal search.
7) What's the procedure for getting evidence suppressed in a Nevada criminal case?
The defense attorney would file a "motion to suppress evidence" with the court. In it, the attorney would argue all the ways that the police's search and seizure was unconstitutional. If the court agrees, it would suppress (disregard) the evidence found from the illegal search. Learn more about motions to suppress evidence in
Note that if the police conducted a warrantless search, the court initially presumes that the search was unreasonable. Therefore the prosecution has the burden to prove that the police were justified in not getting a warrant.
In contrast, if the police did execute a search pursuant to a warrant, then the court initially presumes that the search was reasonable. Then the defendant has the burden to prove that the warrant wasn't valid or improperly executed.
Charged with a crime? Call for help ....
If you may have been the victim of an unlawful "search or seizure" in Nevada, call our Las Vegas criminal defense lawyers at 702-DEFENSE (333-3673). We may be able to get the evidence suppressed and the charges reduced or dismissed.
We represent clients throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.
To learn about California search and seizure laws, go to our article on California search and seizure laws.