Nevada police must follow strict rules when gathering evidence. If they do not, then courts may suppress (keep out) this evidence from being introduced in criminal trials. If this suppression of evidence weakens the prosecution’s case enough, then the charges may be dropped.
In this article, our Las Vegas criminal defense attorneys explain how motions to suppress evidence in Nevada work:
- 1. What is a motion to suppress evidence in Nevada criminal cases?
- 2. What are the grounds for suppression of evidence?
- 3. Should I file a motion to suppress?
- 4. Can evidence found “indirectly” be suppressed?
- 5. When can I file a motion to suppress?
- 6. What does the motion contain?
- 7. How does the prosecution fight back?
- 8. Do courts hold suppression hearings?
- 9. Can excluded evidence be admissible elsewhere?
- 10. How is a motion in limine different?
1. What is a motion to suppress evidence in Nevada criminal cases?
A motion to suppress evidence is a written request by a defendant to the judge asking to keep certain evidence from being introduced into the trial because that evidence was obtained by an unconstitutional police search.
Example: Jay is a minority safely driving his car through a rich part of Summerlin. A suspicious law enforcement officer with the Las Vegas Metropolitan Police Department pulls Jay over even though he is violating no traffic laws and searches Jay’s car trunk without a search warrant or without getting Jay’s consent. When the police officer finds a baggie of marijuana there, he books Jay at the Clark County Detention Center for the criminal offense of marijuana possession.
Prior to trial, Jay’s attorney files a motion to suppress the marijuana because the only reason the officer found it was due to an illegal search and seizure. If the judge agrees, then the prosecution will be barred from introducing the marijuana as evidence in the case. The prosecution may then decide to drop the criminal charges because there is not enough proof left to continue criminal proceedings against Jay.
In the above example, Jay was breaking the law by possessing marijuana in public … but so were the police for searching Jay’s car for no reason. Therefore the marijuana may be suppressed as evidence because it was obtained through an unlawful police search.
Note that a motion to suppress evidence in Nevada may also be called a motion to exclude evidence in Nevada. It is considered a type of “pretrial motion” because it is filed in anticipation of trial.1
2. What are grounds for suppression of evidence?
The Fourth Amendment of the U.S. Constitution protects citizens’ reasonable expectations of privacy by guarding against unreasonable searches and seizures. Therefore, the primary grounds for a judge to suppress evidence in a Nevada criminal case are any of the following:
- The police searched for the evidence without a valid warrant, and there was no legal justification for conducting a warrantless search; or
- The police had a valid search warrant, but the police acted outside the scope of the warrant (such as by gathering evidence not listed in the warrant); or
- The police had a search warrant that suffered from unreasonable defects such as:
a. There was not sufficient probable cause to suspect a crime has occurred to justify the warrant being issued in the first place; or
b. The judge issuing the warrant was not neutral; or
c. The warrant was insufficient on its face, such as not being specific enough about what the police may search for.
In short, invalid warrants or police misconduct are grounds for courts to suppress evidence found from an unconstitutional police search.2
3. Should I file a motion to suppress?
The defense attorneys conduct a review to decide whether it is worth filing a motion to exclude evidence. The first step usually involves reviewing the prosecutor’s evidence against the defendant. This includes the criminal complaint, witness statements, and the officer’s account.
Then the defense attorneys will conduct their own investigation of the charges. This includes asking the defendant to give their own account of the incident … this will help the attorneys discover discrepancies in the prosecution’s evidence. The defense attorneys also review the relevant laws to see if suppression motions have been used in similar cases.
At that point, the defense attorneys will consult with the defendant about whether they have a good case to show that the police illegally searched and seized evidence. If so, they will file a motion to suppress evidence.
4. Can evidence found “indirectly” be suppressed?
Yes, evidence that police discover as an indirect consequence of an illegal search can be the subject of a motion to suppress in a Nevada criminal case.
Example: Police neglect to get a warrant before searching Brad’s Henderson house for marijuana. While inside the house, they see through the rear window an abandoned-looking shed with a glass ceiling. They search the shed and find marijuana plants. Afterwards Brad gets booked at the Henderson Detention Center and gets charged with growing marijuana in violation of Nevada law. Later Brad asks the judge to suppress the marijuana because the police only saw the shed by going inside his house without a warrant.
It is not certain in the above example that the judge will grant the suppression motion. The judge may deny it if the prosecution convincingly argues that there was a strong probability that the police would have discovered the marijuana in the shed regardless of the illegal search. Perhaps the police would have noticed it from the street or through a satellite photo.
Other ways the prosecution may argue against suppressing secondary evidence (“derivative evidence”) found from an illegal police search include the following:
- by showing that the evidence was found through an independent source; or
- by showing that so much time, distance or circumstance separates the evidence from the initial illegal search that the evidence is not “tainted” by the illegal search.3
5. When can I file a motion to suppress?
In Nevada, the defense attorney may file a motion to suppress evidence at any time up until 15 days before the trial is scheduled to occur.4
6. What does the motion contain?
A motion to suppress evidence in Nevada is a written legal document that the defense attorney files with the court. It contains:
- a request to the judge to keep certain evidence from being introduced into trial; and
- arguments meant to persuade the judge that it is legally necessary to suppress the evidence; and
- references to relevant cases and statutes (“legal authority”) that support the argument to suppress the evidence.
Motions to suppress can be long or short, depending on the facts and nature of the case.5
7. How does the prosecution fight back?
After the defense attorney files a motion to suppress evidence in Nevada, the district attorney has 10 days to respond by filing a written “opposition.”6
First, the prosecution will conduct its own investigation into the evidence including police reports and witness statements. They will also interview officers involved in the case and research relevant case law and statutes.
After their investigation, the prosecution will write the opposition to the defense’s motion to suppress evidence. Generally, the prosecutor will argue that the evidence at issue was legally obtained by the police, and it will cite facts and legal authority to back up that claim.
8. Do courts hold suppression hearings?
Yes, Nevada courts often schedule suppression hearings so the judge may ask each side questions to clarify their positions. Suppression hearings resemble a “mini-trial” in that both sides may offer arguments and call witnesses to testify.
If the judge rules in the defendant’s favor by excluding the evidence from trial, the prosecution will reassess the strength of its remaining evidence against the defendant. If the prosecution’s case was significantly weakened, they may decide to dismiss the charges or offer the defendant a plea bargain to a lesser charge.
But if the judge rules against the defendant and permits the evidence to be admitted into trial, then the defense attorney will help the defendant reassess whether they should either:
- proceed to trial; or
- try to make a plea bargain with the prosecution to a lesser charge; or
- plead guilty or no contest (“nolo contendere”) to the current charges in the hopes that the judge will impose a laxer sentence now than if the defendant was found guilty later at trial.
Note that suppression hearings have more relaxed standards regarding evidence than actual trials.
9. Can excluded evidence be admissible elsewhere?
It depends on the circumstances. In some instances, evidence that was suppressed during trial may come in during other proceedings such as:
- sentencing hearings,
- grand jury proceedings,
- civil deportation hearings, or
- parole revocation hearings.
Typically the judge determines whether this evidence should be admissible.
10. How is a motion in limine different?
A motion in limine asks the court to use its discretion to exclude prejudicial evidence. In contrast, a motion to suppress asks the court to exclude evidence that was illegally obtained, whether prejudicial or not.7
Accused of a crime? Call us for help…
If you have been arrested in Nevada, schedule a consultation for legal advice with our Las Vegas criminal defense lawyers. We fight to protect your constitutional rights and to get your charges reduced or dismissed.
Our Las Vegas, NV DUI and criminal law firm represents clients in justice courts, judicial district courts, and appellate courts throughout the state of Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah. Our practice areas also include personal injury and labor law.
In California? See our article on Penal Code 1538.5 PC.
- Nevada Revised Statute 179.335. See, for example, State v. Robles-Nieves (Nevada Supreme Court, 2013) .
- See Mickelson v. State (2020) . See also: United States v. Salvador, (9th Cir., 1984) 740 F.2d 752; Franks v. Delaware, (1978) 438 U.S. 154, 98 S.Ct. 2674.
- See, for example, Silva v. State (
- Nevada Rule of Criminal Procedure 8, subsection 1(a).
- See NRS 179.335.
- Nev. R. Crim. P. 8, subsection 4.
- Richmond v. State (2002) .