WARRANTS IN NEVADA
WHAT IS A WARRANT?
A warrant is a legal document, issued by a judge, that provides law enforcement with the authorization to conduct certain actions that might otherwise violate your rights. There are three different types of warrants that a judge can issue: an Arrest Warrant, a Bench Warrant, and a Search Warrant. It is crucially important that you understand how each works and how they might affect your rights if you ever become subject to a warrant.
WHAT IS AN ARREST WARRANT?
An Arrest Warrant gives the requesting agency (usually the police, but it can be any governmental law enforcement agency) the right to apprehend and detain the subject of the warrant (the person named in the warrant). Arrest warrants issued because the requesting agency has shown that there is “probable cause” to believe that the subject of the arrest warrant committed a criminal offense outside of police presence.
WHAT DO YOU MEAN BY “PROBABLE CAUSE”?
“Probable cause” is a legal term that for the intentionally vague measure of proof that the requesting agency needs to obtain an arrest warrant. Basically, it means that the requesting agency has “cause,” (which means they have a reason, basis, or foundation) to believe that it is “probable,” (which means that it is more likely than not, or that there is more than a 50% chance) that the subject of the requested warrant committed the criminal offense.
HOW DO THE POLICE GET AN ARREST WARRANT?
Arrest warrants are issued for one of two reasons:
- The requesting agency has shown enough “probable cause” to believe that the subject of the arrest warrant committed a criminal offense outside of the police’s presence; or
- The subject of the arrest warrant has been indicted by a grand jury.
- Generally, when a law enforcement agency believes they have enough information/evidence to create the necessary “probable cause,” they will ask a judge for an arrest warrant. There are three ways the agency can submit such a request.
- By Filing a Complaint (pursuant to N.R.S. 171.102). A criminal complaint is a statement of the essential facts that make up the offense charged. In other words, a complaint is a document presented to the judge that gives the most basic details of the alleged crime and the reasons for the requesting agency’s belief that the subject committed that crime. Criminal complaints are usually submitted by the District Attorney well after the commission of the alleged crime.
- By submitting a Citation to the Judge. The contents of a citation are similar to those of the criminal complaint. However, where the criminal complaint is written and submitted by the District Attorney well after the commission of the alleged crime, a citation is filled out at the scene of the alleged crime by one of the responding officers investigating the alleged crime. Moreover, when a citation is issued, it means that the offense is a misdemeanor, and likely a relatively minor one because the officer has chosen not to arrest the suspected offender. As a result, it is unusual for an arrest warrant to be issued based solely on a citation. Rather, the officer who fills out the citation will submit a carbon copy of the citation to the District Attorney who will decide whether or not to formally charge the suspected criminal. If the District Attorney decides to formally charge the suspected criminal, then a criminal complaint will be submitted.
- By submitting an Affidavit. An affidavit is a written statement, usually submitted by one of the law enforcement officers investigating the alleged crime. The affidavit will usually contain the information the officer has gathered, including evidence, accounts and statements of witnesses, and a narrative of the investigation. The affidavit must also be notarized before it is submitted to verify that it is the statement of the investigating officer and that he or she is making the statement under penalty of perjury (in order for a document to be notarized, the notary public will require photo identification. And, if the statement is found to be false, the officer could face criminal charges).
Arrest warrants obtained through this method are usually only granted on the basis of a criminal complaint and accompanying citations and/or affidavits, though it is not required. Generally, when a warrant is requested, the judge will look at all of the evidence contained in the submitted documents to ensure that there “probable cause” exists. If the judge determines that “probable cause” exists, then he or she will issue the arrest warrant.
- Sometimes, a criminal charge will proceed to district court where it will be dismissed “without prejudice” (which means that the court will allow the District Attorney to re-file if more evidence surfaces). The most common reason for this is that essential witnesses did not show up or certain evidence was unavailable. After the dismissal, the District Attorney will serve on the alleged criminal a document called a “Notice of Intent to Seek Indictment.”
The District Attorney will then seek indictment by the Grand Jury, assuming there is still time to file charges (the statute of limitations has not expired). The reason for the need to serve the above-mentioned notice is to provide the alleged criminal ample notice of the sought after indictment so that the alleged criminal is able to testify before the Grand Jury if he or she wants to do so.
A Grand Jury proceeding is similar to a court proceeding in that the District Attorney pleads his or her case to the Grand Jury (which is selected from a jury pool) and if the Grand Jury finds that there is enough information for the suspect to be charged with the alleged crime, then they will “indict” the suspect. At that time, the judge will issue an arrest warrant.
Please Note: Generally speaking, if the supposed crime is what is known as a “petty misdemeanor,” meaning that it is a relatively minor offense, the District Attorney is not likely to immediately seek an arrest warrant. Instead, for most petty misdemeanors, except domestic battery cases, the District Attorney is more likely going to seek a “summons,” which is exactly what it sounds like; a “summons” is simply the court ordering your presence at court (summoning you to the court) to answer the allegations. If you ignore a summons, the judge will issue a Nevada bench warrant (more on bench warrants later) which can result in you being jailed or fined.
WHAT DOES THE ARREST WARRANT CONTAIN?
According to N.R.S. 171.108, the warrant must contain the following information:
- The judge’s signature;
- The name of the judge’s office;
- The name of the alleged offender or any name or description by which he or she can be identified if the offender’s name is unknown;
- The date of issuance;
- The county, city, or town where it was issued;
- The criminal offense charged in the complaint;
- Command that alleged offender be arrested and brought before the nearest available judge.
Also Note: N.R.S. 179.380 contains the suggested form for a warrant. This does not mean that a warrant is not valid if it does not follow the form (which is contained below). If you are presented with a warrant that contains all of the above-listed information, that warrant is valid, regardless of whether it follows the below form.
County of __________ The State of Nevada, to any sheriff, constable, marshal, police officer, or peace officer in this State: A presentment having been made or an indictment having been found (or information filed) on the _____ day of the month of ______ of the year of _______, in the district court of the __________________, County of ____________, charging (name of the alleged criminal) with the crime of ____________, you are therefore commanded forthwith to arrest the above-named (name of the alleged criminal) and bring (name of the alleged criminal) before the court to answer the presentment, indictment or information; or if the court is not in session that you deliver (name of the alleged criminal) into the custody of the sheriff of the County of _________ By order of the court. Given under my hand with the seal of the court affixed this _____ day of the month of ____ of the year _____.
Please Note: If you know that you are being investigated for a crime, you should talk to an attorney immediately. It is possible that an attorney may be able to present exculpatory evidence (evidence that you did not commit the crime) to the District Attorney, and convince them to drop the matter.
Along with an arrest warrant, the judge will usually set a bail amount for the crime. Bail is a means for the court to release you from custody while ensuring that you will still cooperate through the remainder of the case. After arrest, the court will release you from custody once you pay the specified bail or post a bond through a bail bondsman. At the conclusion of your case, the money you paid will be returned to you.
HOW MUCH WILL I HAVE TO PAY TO GET BAILED OUT?
Every Nevada court has what is called a “bail schedule” which sets a specific amount of bail for each criminal offense. Because bail is supposed to ensure that you will continue to cooperate with the authorities throughout the rest of your case, the worse the crime or offense, the higher the bail will generally be set. Consequently, as you may expect, the most serious crimes do not have bail amounts because of the worry that you may try to flee if released. These crimes include anything punishable by death or life imprisonment. Moreover, if you have violated the terms of parole, or are an escaped convict, bail may not be an option for you.
In most petty cases, an attorney may be able to reduce the amount of bail needed for your release. In some cases, an attorney may get the court to agree to release you on your “own recognizance” (O.R.), which simply means that you are being released without paying any bail and you agree and promise to return for all future court appearances.
HOW IS AN ARREST WARRANT EXECUTED?
Once an arrest warrant has been issued, law enforcement has the ability to “execute” the warrant, to arrest the suspect. However, there are often time and place limitations that accompany an arrest warrant.
Please Note: If law enforcement is attempting to arrest you pursuant to a valid arrest warrant, and you resist that arrest, the officer is authorized to use “necessary force” to carry out the arrest. This is, obviously, a vague term, but what it means is that the police can use violence to carry out an arrest warrant where the suspect is resisting. However, they are only allowed to use the amount of violence, or force, needed to carry out the arrest.
Generally, if you have been charged with a gross misdemeanor or felony, then you can be arrested in Nevada at any time.
However, if you have been charged with a misdemeanor, then you can only be arrested between the hours of 7 a.m. and 7 p.m. unless one of the following conditions applies:
- The magistrate issuing the warrant allows otherwise (this will usually be noted in the warrant);
- The alleged criminal conduct was committed in the officer’s presence;
- The suspect was stopped and detained (with probable cause to do so) by an officer, for an unrelated offense, at which time the officer discovers that there is a warrant issued for the suspect;
- If the suspect is already in custody because of another lawful arrest;
- The suspect learns of the arrest warrant and voluntarily submits to an arrest; or
- The alleged offense is a battery domestic violence or the violation of a protective order stemming from domestic violence.
There are no limitations on where you can be arrested if there is a valid arrest warrant issued in your name. However, generally, law enforcement will look for you at your home or place of employment.
It is important to note that while law enforcement is not required to have the arrest warrant with them when making an arrest. If the you have been arrested, though, you should request that the officers provide you with the arrest warrant as soon as possible.
Please Note: If there is not an active, valid arrest warrant naming you, then you are not required to let officers enter your home.
SO CAN I ONLY BE ARRESTED IF THERE IS AN ARREST WARRANT ISSUED FOR ME?
No. However, in the absence of a valid warrant, you can only be arrested in one of two circumstances:
- If the officer witnessed the alleged crime firsthand; or
- If the alleged crime is a gross misdemeanor or a felony and the officer has reasonable cause to believe you committed the crime.
WHAT IF I LEAVE NEVADA, WHAT HAPPENS TO THE ARREST WARRANT?
If you are aware of an arrest warrant issued in your name, and you decide to leave the state, then you will be considered a fugitive. If you are subsequently caught in another state, then the State of Nevada may choose to extradite you (have you transferred in custody, from the other state) back to Nevada. Once back in Nevada, you will be required to answer the charges filed against you, and you may face additional penalties for fleeing the State with knowledge of an arrest warrant.
Please Note: It is important that you speak with an attorney if Nevada is attempting to extradite you back to face charges. You have the right to a hearing to protest the extradition order, and any time you are imprisoned in the other state can be credited toward your final sentence.
Also Note: If you were unaware of the arrest warrant when you left the state, it is similarly important to seek out an attorney so that you may be released from your fugitive status.
WHAT DO I DO IF I KNOW THAT THERE IS AN ACTIVE WARRANT IN MY NAME?
If you have not already, you should speak with an attorney immediately so that you can lessen some of the unpleasantness associated with being arrested.
As mentioned above, law enforcement is most likely to attempt to arrest you either at home or at your place of employment. In order to avoid the embarrassment of being arrested at work, you can voluntarily appear before the court to request a bail reduction or O.R. release. Voluntarily appearing before the court shows the court that you are likely to cooperate with the court and gives the court more reason to agree to lower bail terms.
Please Note: While you certainly have the right to turn yourself into when you know there is a warrant out for your arrest, it is highly recommended that you obtain counsel to appear with you. The judge has heard any excuse you may have, and is not likely to listen to your pleas. An experienced attorney will be know how to approach bail reduction and O.R. requests with the court. Moreover, hiring an attorney to appear with you shows the court that you are serious about the matter and gives the court more reason to agree to any changes in bail.
ARE THERE ANY DEFENSES TO AN ARREST WARRANT?
Of course! There are a few defenses that an experienced attorney may invoke depending on the circumstances of your case.
- Delay in execution
If law enforcement delays too long between the issuance of the arrest warrant and the execution of that warrant, an attorney may be able to get your case dismissed. Delays in the execution of an arrest warrant can prejudice you by allowing for the deterioration of exculpatory evidence. It may also violate your right to a fair and speedy trial.
- Police Misconduct
This is perhaps the most common way to dispute an arrest warrant. Sometimes, those involved in obtaining the arrest warrant made mistakes and cut corners during investigation of the crime. An experienced attorney will examine how your arrest warrant was obtained and may find evidence that someone acted inappropriately or even illegally.
If your attorney can show that the inappropriate acts could be prejudicial to you at trial, then your charges are more likely to be negotiated down, or possibly even dropped altogether, depending on the nature of the acts and the evidence obtained through those acts.
- Writ of Habeas Corpus
If you are already imprisoned following an arrest, an attorney may file what is called a “Writ of Habeas Corpus,” which essentially states that your attorney believes you are imprisoned illegally, generally because the warrant was illegal or invalid. If your attorney is able to convince the judge that you are unlawfully imprisoned, then you should be released immediately.
BUT I HAVE A “BENCH WARRANT” OUT FOR ME, WHAT DOES THAT MEAN?
A “Bench Warrant” has a very similar effect to an arrest warrant; both authorize law enforcement to arrest and detain you on bail. There are, however, many differences in how the two warrants work.
The first difference is in the initiation of the two warrants. As discussed above, an arrest warrant is obtained when law enforcement shows either a judge or the grand jury that there is “probable cause” to arrest the suspect. A “bench warrant,” on the other hand, is initiated by the judge (also known as, the “bench”) on his or her own accord.
Secondly, an arrest warrant generally marks the beginning of a criminal case against a suspect. Until then, law enforcement is still investigating the crime and determining who to charge. A bench warrant can arise at any point after a suspect has been criminally charged.
Third, an arrest warrant is issued when the court is given probable cause to believe that the suspect committed the alleged crime. A bench warrant, on the other hand, is issued when the judge determines that you have violated a rule of court in some way. This is also known more generally as “contempt of court.” There are a number of reasons that a judge may find you in “contempt of court.” Some of the most common are:
- Missing a court date (arraignment, status check, sentencing, etc.);
- Not paying adhering to the terms of your sentence (not paying a fine, attending counseling or other required courses, or failing to complete community service);
- If you are not currently in custody, but you have been named in an indictment or already convicted;
- If you refuse to testify before a grand jury; or
- Neglecting to follow any other court order.
WHAT DO I DO ABOUT THE BENCH WARRANT NOW THAT I KNOW ABOUT IT?
The first thing you should do is contact an attorney, if you have not already done so. The reasons for speaking with an attorney about your case are numerous, but the two most important reasons are:
- If you do not know why the bench warrant was issued, an attorney can check court records for you and find out why the bench warrant was issued. If you were to try to do so without the assistance of an attorney, you would likely be arrested because of the bench warrant; and
- An attorney may be able to get the bench warrant “quashed” (or cleared or removed) so that you don’t have to worry about being arrested.
If the underlying crime that you are charged with is not serious, law enforcement is not likely to seek you out because of a bench warrant. However, the warrant will remain in place until you are either arrested or the warrant is quashed.
BUT WHAT IF MY CRIME WAS REALLY MINOR?
You can be arrested at any time if there is an outstanding bench warrant issued for you. Just because the underlying crime is minor enough that the police will not seek you out does not mean you are safe from arrest. If there is an outstanding warrant in your name, a routine traffic stop will show the warrant, and the officer will almost certainly arrest you.
Once a bench warrant is issued, it becomes part of a nationwide computer database. As a result, if there is a bench warrant for your arrest, you can be arrested anywhere in the country if an officer runs a check on your I.D..
Also, the DMV has the power to suspend your driver’s license because of a bench warrant. Any attempt to remove the suspension without quashing the bench warrant will be unsuccessful and could even lead to your arrest.
In fact, until they officially grant the motion to quash, the judge still has the power and authority to have you arrested. That is why it is so important to be represented by an attorney as soon as you know about a warrant in your name.
Hiring an attorney will also increase the likelihood that your motion to quash the bench warrant will be granted because it will show the court that you are serious about proceeding through your court case quickly and smoothly.
HOW CAN I GET MY BENCH WARRANT QUASHED?
Once again, you should speak with an attorney as soon as possible. Your attorney can then file a motion place on the court’s calendar a proceeding to have the bench warrant recalled or quashed. The court will then schedule a date to hear the motion (usually within 2-5 days after the motion is filed), and your attorney will have to go to court and officially quash the bench warrant. If the underlying crime you are charged with is a misdemeanor, and this is the first bench warrant issued for you, the judge will almost always recall the warrant without you having to appear in court. If, however, you have a history of missing court dates, the court has the discretion to require that you appear in court before the warrant is quashed. When your attorney goes into court for the motion to quash, the court will generally ask for the reasoning behind your actions, or inactions) that necessitated the bench warrant. This is one more reason why having an attorney is so important; experience criminal attorneys will know how to answer this question so that they court will be satisfied and will therefore recall the warrant. Some common arguments that often serve to quash a bench warrant include:
- That you never received a notice to appear in the first place;
- That you recently moved and the notice was likely sent to your previous address;
- That you otherwise followed every other order of the court with regard to your plea deal or probation and just did not realize
Quashing a bench warrant in Nevada is a routine procedure. You may not even have to come to court with your attorney, so long as the crime you have been charged with is relatively minor. If you have been charged with a felony, however, the court will require your attendance for the motion to quash, though you may still get the warrant quashed. Once your attorney appears in court for the motion to quash, the judge will grant the motion, release you on O.R. and often will eliminate your bail requirements. There are only a few reasons why the court may not want to quash the bench warrant:
- If you have an extensive criminal history, the court may want to incarcerate you as a precaution for the rest of the community;
- If you are deemed a flight risk, the court may want to incarcerate you so that you cannot flee the jurisdiction;
- If you do not have a good reason for your actions or inactions that led to the warrant being issued in the first place; and/or
- If the court believes you are not serious about adhering to court requirements or orders.
SO, WHAT IS THE DIFFERENCE BETWEEN AN ARREST WARRANT AND A BENCH WARRANT?
As can be seen above, the most important difference between an arrest warrant and a bench warrant is that an arrest warrant cannot simply be “quashed” to make it go away. Arrest warrants must be dealt with accepting your punishment, so-to-speak (by voluntarily turning yourself in to law enforcement, negotiating a deal with the District Attorney, Requesting that the court release you on bail, or O.R., etc.).
Arrest warrants are also more of an active process. An arrest warrant instructs law enforcement officers to arrest you. Bench warrants, on the other hand, are much more passive. In fact, they can be issued without you knowing why or how you did anything wrong. Once one has been issued, law enforcement is unlikely to try to hunt you down to arrest you. Rather, the warrant simply gives officers the authority to arrest you if you happen to cross paths.
The most important difference between an arrest warrant and a bench warrant is the reasons for issuance: an arrest warrant can be issued even if you have cooperated with law enforcement in every way, whereas a bench warrant is only issued when you are not cooperating with the court in some way, either by not appearing for a court date, or not following through on a court order.
WHAT IF I’VE DONE NOTHING WRONG, BUT AN OFFICER HANDS ME A SEARCH WARRANT TO SEARCH MY PROPERTY?
We have all seen search warrants issued on television or in movies, but not many of know exactly how search warrants work.
Search warrants are necessary because the Fourth Amendment to the United States Constitution protects us all from, among other things, unreasonable searches by law enforcement. “Unreasonable” with regard to searches means, firstly, that you must have a “reasonable expectation of privacy” in the area the police want to search, and, secondly, that the police have “probable cause” to believe their search will uncover something that connects you to a crime.
THAT IS A LOT OF LEGAL PHRASES, WHAT DO THEY ALL MEAN FOR ME?
As discussed in the section on Arrest Warrants, “probable cause” is somewhat self-explanatory; in this particular context, it means that the police officer has enough cause to believe that he or she will probably find evidence of the commission of a crime if they search your property. Moreover, it means that the judge who signs the search warrant agrees with the police officer’s assessment. In practice, this generally means that the officer, in the application for the search warrant, has included either his own eye-witness account, or that of a trustworthy informant, supporting his belief that there is evidence of a crime on the property.
“Reasonable expectation of privacy”, on the other hand is a somewhat vague term that basically means, generally, that you would assume the place is private. Your home, for example, is a private place. You can assume that what your home contains will be considered private. The patio at Starbucks, on the other hand, is not a private place and as such, does not carry a “reasonable expectation of privacy”. Every place in between will be determined on a case-by-case basis. If the police show up to your house with a search warrant, then the determination regarding privacy was already made by a judge. However, you have the right to read the search warrant before you let them into your home. You should absolutely read the warrant so that you understand exactly what it allows the police to search. Also, if the police find anything in your home, you should have the warrant reviewed by an attorney to ensure that the police did not go beyond the scope of the warrant, and that the evidence that the warrant was based on is sound.
HOW DO SEARCH WARRANTS WORK?
First, it is important for you to understand that search warrants are only needed when the police want to search something or somewhere that you have an expectation of privacy. In other words, if the police want to search a locker at the gym, they can do so with permission of the gym because you hold no expectation of privacy in that locker. It is the property of the gym, and as such, the gym holds all privacy rights in the locker. Also, if you are renting a room from someone, you hold no right to privacy with regard to the common areas of the room. You only hold privacy rights to your bedroom (unless, of course, the rental agreements states otherwise).
If the place or item that the police want to search does fall into the category of “reasonable expectation of privacy”, then the police must obtain a search warrant. As noted above, a search warrant is obtained after an officer applies for one and submits either first-hand, or reliable second-hand information that the place or item will contain evidence of a crime. If the judge believes the information, then he or she will sign the search warrant and the police can then execute the search warrant.
A search warrant is only valid for the exact locations or items listed in the warrant. This means that if the search warrant lists a shed behind your home, but does not actually list your home, the police cannot enter your home. However, there are a few exceptions that allow the police to extend the search beyond the specified areas of the warrant:
- The police can do what is known as a “Terry Sweep” when they execute a quick search of the premises to ensure that no body is hiding and waiting to ambush them. The important thing to note in a Terry Sweep is that the police can only check places that are big enough for a person to fit it. In other words, they can check the closet, but cannot open drawers.
- To prevent the destruction of evidence. If the police show up to execute a search warrant on your property that lists your garage, but they have probable cause to believe that someone is destroying evidence in your bathroom, they can expand the search warrant to include the bathroom in order to stop the destruction of evidence.
- Look for evidence they believe may be in a different location based on what the initial search shows. For example, if the police execute a search warrant listing your garage and find a photograph, which appears to be taken in your basement, that shows a cocaine cutting operation, they can expand the search to include your basement.
It is important to note that there are times when the police do not need a search warrant to search your person or property.
- If you consent to the search. If you choose to do so, be sure to specify exactly what and where the police can search. Without a search warrant, the police only have the right to search the places you allow them to search.
- The police may search you and your immediate surroundings when they are placing you under arrest. This is to ensure that you do not have any weapons that may be hidden.
- If a person is arrested while in a residence, the police may execute a Terry Sweep as discussed above.
- When you are being taken to jail, the police may perform an inventory search of the items in your possession. If the police are holding your car subsequent to your arrest, they may also execute an inventory search of your car.
- If the police are in “hot pursuit” of a suspect, they may follow the suspect into a private dwelling and execute a search of the dwelling. In other words, if the police are chasing a suspected criminal, and that suspect comes into your home, the police may follow the suspect and then search your home for the suspect. As with the Terry Sweep, however, they will only be able to search areas where the suspect could hide.
- The police may perform a pat-down of your body, outside your clothing if they reasonably believe that you may be concealing a weapon. This is known as a “Terry Frisk” and it is important to note, that this is only a PAT-down. The officer may not maneuver the objects on your person in an effort to see find out what they are.
WHAT DO I DO IF I THINK THE POLICE ARE SEARCHING ME, OR MY PROPERTY, ILLEGALLY?
Talk to a criminal attorney as soon as possible. Explain all of the circumstances and ask the attorney what can be done. Depending on the exact circumstances of your situation, the attorney will have a number of different methods of attacking the police conduct.
- Your attorney may find deficiencies in the search warrant. If the warrant was issued without the proper reasonable cause, then the warrant may be thrown out. Anything discovered as a result of the warrant is then inadmissible in court as “fruit of the poisoned tree.”
- If the police searched your person, but not in connection to a valid arrest, then the search was illegal and anything discovered would not be admissible in court.
- If the police did a pat-down and altered the position of something on your body in order to get a better feel, then they exceeded the scope of the permissible search and anything found would not be admissible in court.
- If the police executed a valid warrant, but exceeded the scope of that warrant by searching areas not expressly stated in the warrant, then anything found in the areas not listed would be inadmissible in court.
- If the police search your home or person without a warrant, then anything they find would not be admissible in court.