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 loss of evidence weakens the prosecution’s case enough, then the charges may be dropped.
This article explains “motions to suppress evidence” in Nevada. Keep reading to learn on what grounds evidence may be suppressed, and the procedures for filing a motion to suppress evidence.
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. North Las Vegas criminal defense attorney Michael Becker gives an example:
Jay is a minority safely driving his car through a rich part of Summerlin. A suspicious cop pulls Jay over even though he is violating no traffic laws and searches Jay’s car trunk without a warrant or without getting Jay’s consent. When the cop finds a baggie of marijuana there, he books Jay at the Clark County Detention Center for the Nevada crime of possession of marijuana. Prior to trial, Jay’s attorney files a motion to suppress the marijuana because the only reason the cop found it was due to an illegal search. 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 the drop the charges because there is not enough proof left to convict Jay of marijuana possession.
In the above example, Jay was breaking the law by possessing marijuana … 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.
2) On what grounds can evidence be suppressed in a Nevada criminal case?
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 warrant or police misconduct are grounds for courts to suppress evidence found from an unconstitutional police search.
For more information about Nevada search and seizure laws, see our page on Nevada search and seizure laws.
3) How does a defense attorney determine if a motion to suppress evidence is appropriate in a Nevada criminal case?
The defense attorney conducts 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 attorney will conduct his/her own investigation of the charges. This includes asking the defendant to give his/her own account of the incident … this will help the attorney discovery discrepancies in prosecution’s evidence. The defense attorney also reviews the relevant laws to see if suppression motions have been used in similar cases.
At that point, the defense attorney will consult with the defendant about whether they have a good case to show that the police illegally searched and seized evidence. If so, he/she will file a motion to suppress evidence.
4) Can evidence that is found “indirectly” from an illegal police search be suppressed in a Nevada criminal case?
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. Boulder City criminal defense attorney Neil Shouse provides an illustration of such “secondary” or “derivative” evidence:
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 the Nevada crime of growing marijuana. 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 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.
(Note that if someone is illegally detained and searched, and a valid arrest warrant is later found, any evidence found from the previous illegal search is still inadmissible as evidence. Torres v. State, 131 Nev. Advance Opinion 2 (2015)).
5) When does a defense attorney file a motion to suppress evidence in a Nevada criminal case?
The defense attorney may file a motion to suppress evidence at any time up until twenty days before the trial is scheduled to occur.
6) What does a motion to suppress evidence in Nevada look like?
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 (“suppress”) 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.
7) How does the prosecution respond to a motion to suppress evidence in a Nevada criminal case?
After the defense attorney files a motion to suppress evidence, the prosecution has ten days to respond by filing a written “opposition.”
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 an 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 hearings for motions to suppress evidence in Nevada criminal cases? What are they like?
Yes, 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 he/she 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” 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 evidence that is excluded from a Nevada criminal trial 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.
Accused of a crime? Call us for help ….
If you have been arrested in Nevada, schedule a free consultation with our Las Vegas criminal defense lawyers. We will discuss all your options including the possibility of filing a ‘suppression motion’ to keep the prosecution from using evidence against you.
We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.
For information about California Penal Code 1538.5 Motions to Suppress Evidence, see our article on about California Penal Code 1538.5 Motions to Suppress Evidence.