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Was Your Arrest Legal? Probable Cause and Reasonable Suspicion in Las Vegas

Published September 12, 2018 by ADRAS & ALTIG, Attorneys at Law
Man arrested on probable cause.

One of the questions we immediately seek to answer when clients call the Las Vegas criminal defense attorneys of Adras & Altig is whether police had reasonable suspicion to stop you and probable cause to make an arrest.

They sound like the same thing, but they are not. They are separate protections you have under the U.S. Constitution. If the arresting office did not have reasonable suspicion to stop you, your arrest was not legal and charges against you must be dropped.

In short, a police officer must have reasonable suspicion that you have committed or are about to commit a crime to stop you. He or she must have probable cause, essentially evidence of a crime, to arrest you.

Unfortunately, illegal arrests happen in Las Vegas. But with the help of aggressive and knowledgeable defense attorneys, you can ensure your rights are not violated further.

What is Reasonable Suspicion for Detention by Nevada Police?

Nevada law (N.R.S. 171.123) addresses the circumstances under which police may temporarily detain a person.

You may be stopped:

  • Under circumstances that reasonably indicate that you have committed, are committing or are about to commit a crime. For example, you may be stopped if your erratic driving or lane weaving arouses suspicion of drunk driving, or DUI. If a police officer detects the smell of marijuana among a group of people, he might detain any or all of you on suspicion of drug possession.
  • Under circumstances that reasonably indicate that you have violated or are violating the conditions of your parole or probation. In most cases, a police officer will recognize and/or know, or be sent specifically to arrest a person before they’ll stop someone on suspicion of a probation or parole violation.
  • To ascertain your identity and the “suspicious circumstances surrounding” your presence at a particular location. If a police officer asks, you are required to identify yourself, but you do not have to answer other questions — not even why you are there, despite what the text of the statute says.The U.S. Supreme Court actually upheld this portion of the law in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004). Because the statute only allows police to ask your name, the statute “properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests,” the Court said.

Police are not to detain you any longer than necessary to determine your identity or whether a crime, or probation or parole violation may have occurred. At the most, you can legally be detained for up to 60 minutes without an arrest.

Requiring a “reasonable suspicion” for detaining a person guards against unlawful harassment, such as stopping people because of their race, gender, or supposed sexual orientation.

Most likely, if you have been stopped by police on the streets of Las Vegas, you have done something to draw attention to yourself, which has raised the officer’s suspicion that you are breaking the law. You might be stopped if you are seen at or near the scene of a recent crime and match a description of the perpetrator.

If someone reports your activity to police, that typically raises a defendable reasonable suspicion. But if you were minding your own business and a police officer stopped you, any subsequent arrest may be illegal.

What is Probable Cause for an Arrest in Las Vegas?

Once a police officer has had a reasonable suspicion that led to pulling you over, he or she must then have probable cause to go further and arrest you.

Nevada law, N.R.S. 171.1231, provides little explanation of probable cause, saying only:

At any time after the onset of the detention pursuant to NRS 171.123 [reasonable suspicion], the person so detained shall be arrested if probable cause for an arrest appears. If, after inquiry into the circumstances which prompted the detention, no probable cause for arrest appears, such person shall be released.

Probable cause is usually considered to require some level of citable evidence beyond suspicion. If a driver stopped for erratic driving fails a field sobriety test, that is generally probable cause for an arrest. Such a test may be standing on one leg or walking a straight line from one point to another and then turning and walking back.

Case law about probable cause cites having a reasonable basis for believing that a crime may have been committed before making an arrest, or finding evidence of a crime during a lawful search. The Supreme Court has repeatedly said it is best left to those versed in the field of law enforcement to define what constitutes probable cause. A judge may consider everything an arresting officer knew or reasonably believed at the time of an arrest to determine whether probable cause existed.

Challenges to Probable Cause or Reasonable Suspicion in a NV Arrest

Most challenges to probable cause center on an illegal search. If a search was illegal, any evidence obtained during the search cannot be used against you in court. This even applies to DUI arrests, in which a breath test is considered a search.

Police need to demonstrate probable cause to obtain a search warrant. However, police may conduct a warrantless search in an emergency, such as if a person’s life may be in danger. If police have reasonable suspicion of criminal activity (or are willing to say so in court) they can detain and search anyone in a public location.

Nevada allows sobriety checkpoints, in which police may stop drivers without any suspicion of drunk driving. There are several steps police must take make a checkpoint legal, including erecting large, brightly lit signs on the roadway to warn of the DUI check at least one-quarter of a mile ahead of the roadblock. If police do not execute a sobriety checkpoint correctly, charges stemming from arrest there may be thrown out.

Contact Adras & Altig About a Bad Arrest in Las Vegas

Having an improper arrest and subsequent charges dismissed in Las Vegas because of a lack of reasonable suspicion or probable cause comes down to convincing a judge that the police failed to meet the burden to make a valid arrest. You need a criminal defense lawyer who understands Nevada law and who has a reliable reputation in Clark County courts. The defense attorneys of Adras & Altig have been helping Las Vegas residents and out-of-state visitors fight criminal charges for more than a decade.

If you have been arrested in Las Vegas or Clark County, Nevada, contact Adras & Altig as soon as possible for reputable and respected legal representation. We will respond quickly and begin investigating the circumstances of your arrest and the validity of charges against you. We’ll develop a smart defense strategy and work toward the best available outcome for you. Contact us now for a free evaluation of your case.

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