Updated April 22, 2020
Nevada searches and seizures are how police gather evidence of criminal activity. Law enforcement usually needs to obtain a search warrant first.
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 Las Vegas search and seizure laws.
1) What is a search and seizure in Nevada?
“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.1
Examples of searches include:
- Pat downs / “frisks”
- Rummaging through a home or car,
- Searches incident to an arrest
An example of seizure is police confiscating a suspect’s drugs or weapons.
2) Are police searches and seizures legal?
Only if they are reasonable. Searches and seizures are legal under the Fourth Amendment if:
- The police have probable cause to believe a crime occurred, and
- It would help uncover relevant evidence
The Fourth Amendment pertains to all police: Federal, state, and local. The Fourth Amendment does not apply to non-governmental entities. Such as private detectives or private security guards.2
3) What is a search warrant in Las Vegas, Nevada?
A search warrant is a court order. It permits police to search private locations for evidence. Judges may issue search warrants only if the police demonstrate probable cause that a crime has occurred. Mere suspicion of criminal activity is not enough.
An application for a search warrant must include:
- A police officer’s oath or affirmation; and
- Detailed descriptions of locations to be searched; and
- Detailed descriptions of items to be seized.3
4) Are all search warrants valid?
No. Courts can make mistakes and issue baseless warrants. Common defects that may invalidate search warrants are:
- The officer who applied for the warrant lied. And there was no probable cause a crime occurred.
- The warrant was unspecific or overbroad.
- The issuing judge was not neutral.
Searches done pursuant do an invalid warrant are illegal. But valid search warrants do not guarantee a valid search. Searches may be illegal if police stray from the limits of the warrant.4
5) Are search warrants required for police searches?
Yes, unless the police have good reason to forgo getting the warrant first. Seven exceptions to Nevada’s “search warrant requirement” are:
- Consent. Police may ask people to search their property. And if they agree, the police can search with no warrant. But this consent must be freely and voluntarily given. And they can usually withdraw consent during the search. In practice, people should never agree to a search.5
- Search incident to lawful arrest. Following an arrest, police may search the following. The arrestee’s body (a pat down). And the areas within the arrestee’s immediate control. Police may seize relevant evidence, weapons, and contraband.6
- Plain view. If police have authority to search a location for one crime, they can seize evidence of other crimes that are in plain view. For example, an officer gets a warrant to search a home for drugs. The officer sees a TV that was stolen from a store. The officer can seize that TV because it was plainly visible.7
- No reasonable expectation of privacy. Warrants are unnecessary in locations where no one has the right to privacy. Examples include abandoned property and stolen vehicles.8
- Automobile exception. In most cases, police may search cars with no warrant if they reasonably believe it contains evidence. Since vehicles are mobile, they are less private than homes.9
- Inspections. Routine searches that serve public health and safety require no warrant. Such as DUI checkpoints. Airport security searches. Borders searches. And health inspections.10
- Exigent circumstances. Getting judges to grant warrants takes time. So warrants are unnecessary in emergency situations. Examples include when the suspect is fleeing (“hot pursuit”). Or evidence may be destroyed soon.11
Example: A Reno police officer is driving down the street and hears a woman crying with pain from a house. The officer immediately pulls over and breaks into the house, where he finds a man punching the woman. The Reno Court would probably find that the officer’s warrantless entry into the home was justified because he suspected from the cries that someone’s safety was in immediate jeopardy.
6) What happens when police find evidence from an illegal search?
Defendants can try to get the illegally-obtained evidence excluded as evidence in their case. If not for this exclusionary rule, police would have no incentive to do lawful searches and seizures.12
Following an illegal search, defendants may file a motion to suppress evidence. If the judge grants it, the state’s case may be left too weak to prosecute.
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. The illegal search taints any secondary evidence that would not have been found but for the illegal search.13
Example: 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.
Secondary evidence may be admissible in a criminal case if the prosecution can show either that:
- The evidence would have probably been found regardless of the illegal search, or
- The “tainted” evidence is so removed from the illegal search that it is nonsensical to apply the exclusionary rule.14
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.15
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. 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.
In California? Learn about California search and seizure laws.
In Colorado? Learn about Colorado search and seizure laws.
- Carpenter v. U.S., 138 S. Ct. 2206 (2018); see NRS 179.1164, NRS 179.1165.
- See e.g. People v. Brouillette, 210 Cal. App. 3d 842 (6th Dist., 1989).
- Blight v. City of Manteca, 944 F.3d 1061 (9th Cir. 2019).
- See e.g. State v. Kincade, 129 Nev. 953, 317 P.3d 206 (2013).
- Hager v. State, 447 P.3d 1063, 135 Nev. Adv. Rep. 34 (2019).
- NRS 171.1232.
- Palmieri v. Clark Cnty., 131 Nev. 1028, 367 P.3d 442 (Nev. App. 2015)
- Byrd v. U.S., 138 S. Ct. 1518 (2018).
- U.S. v. Korte, 918 F.3d 750 (9th Cir. 2019).
- Bressi v. Ford, 575 F.3d 891(9th Cir. 2009).
- Camacho v. State, 119 Nev. 395 (2003).
- Cooper v. State, 422 P.3d 722 (2018).
- State v. Sample, 414 P.3d 814, 134 Nev. Adv. Rep. 23 (2018).
- United States v. Dog, 760 Fed. Appx. 502 (9th Cir. 2019).
- Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965).