I'm scanning these posts - lot of different opinions-
but I was trying to get straightforward info...
so lets imagine, I see an online ad for a well reviewed lady, good history 1 - 2 years great reviews, maybe more. maybe she's visiting, maybe local, shouldn't matter...
so scenario 1 - let's say she agrees to meet me at her hotel, we take care of biz... place envelope, never acknowledge the $$ or payment for favors, etc. everything on the level, text book - we all go home happy.
scenario 2 - now let's say a few day later, I go back, same lady, hotel and room, take care of biz, and we are in the middle of our session, knock on door, or whatever... LE has arrived...
So - let me get this straight... is a bust really a possibility in either or both of these scenarios?
My thought would be, the lady and I and are spending time together, we are happy, we didn't call anyone... but I suppose the hotel, neighbors, etc. could get suspicious and call? I would think this would NOT be remotely possible, how do you prove anything illicit? Maybe, they'd go through the lady's computer, etc. to POSSIBLY come up with evidence. There is an online ad - but so what, maybe I'm her boyfriend in between clients - how do you prove anything?
Including the gal going over to LE to avoid prosecution; but the fact is, when all the precautions you have mentioned are taken (and they are good precautions), what you describe is extremely rare.
As for proof, LE often is not that concerned with the proof. They just want to put a scare out there to influence the clients and the providers for a while.
Even if you get a lawyer to get you off, you've already spent mucho dollars, been embarrassed in the community and probably headed to divorce court. Paying the fine is probably the least of your worries.
On the other hand, you can always get hit by a bus while crossing the street, so don't worry. Take the precautions you outlined, and enjoy life.
(Still not a lawyer, but I do have a degree in philosophy.)
They have to have probable cause to search or arrest in the first place. They cannot simply bust in and start looking for evidence.
If a neighbor sees a strange man going into a lady's house and reports this to the police that in and of itself is not going to be probable cause to either search or arrest. If you add other facts- the lady is a known provider, the lady has a posted ad offering incall that day that LE has reviewed, the man is a known client of providers - then you start getting closer to probably cause but I think most magistrates would require more.
But your "story" that you are just spending time together would have almost no effect on the arresting officer's decision to bust in and make an arrest. At this juncture, it is "before the fact" knowledge that is determinative.
If they do bust in pursuant to a probable cause determination, then they will search for corroborating evidence and attempt to interview you. Unless you truly are innocent, however, you should shut up at this point. Telling false info to LE can lead to new charges separate and distinct from prostitution, particularly if they are federal.
ANYTHING you say can be used against you and you never know if your protestations of innocence could land you in trouble with a charge of lying to a police officer.
Just give out name, rank and serial number.
You have the right to remain silent, use it!
Silence is truly golden.
(still not a lawyer)
-- Modified on 12/30/2008 12:52:43 PM
While Mr Fischer is correct that ANYTHING is possible, your scenario No. 2 is so far fetched as to not really be a concern.
The only way that scenario is going to get you arrested is if the cops are willing to make the arrest/issue the citation without actually having the requisites for a misdemeanor arrest. Typically, a misdemeanor must be witnessed by the arresting person. What did the cops witness? Unless they literally kicked the door in and found you still in bed with the lady, nothing. Even so, all they witnessed was an adult couple having sex.
While an unethical officer COULD run you in knowing in all probability you won't fight the charge etc, he really is playing with fire if he does. He might well have committed a false arrest and open his department and him personally to significant lawsuit. Does it happen? Probably. But this is the reason the cops use decoy officers posing as providers or customers and try to evoke an solicitation. Then they have an iron clad case, no muss, no fuss.
Not a lawyer!
MVR
most of MVR's analysis and would add that the unethical officer scenario while possible is also so farfetched as to not really be a concern.
If you are arrested without a warrant, most states require an arraignment before a neutral magistrate in 48 hours. At that time the arresting officer must file an affidavit of probable cause. And certainly if felony charges are made counsel must be appointed at this time. The magistrate is suppose to dismiss the charges if the affidavit does not meet the constitutional minimum. So unless both defense counsel and the magistrate drop the ball (it does happen sadly), the bogus charges would be dismissed at this time.
The only thing I would change is the statement that "a misdemeanor must be witnessed by the arresting person."
We had a big discussion about this earlier on the Board with several posters taking this position. My view is that, absent a state statute so requiring, there is no requirement that a misdemeanor must be witnessed for an arrest. Probable cause based on circumstantial evidence is sufficient.
-- Modified on 1/1/2009 10:39:09 AM
I'm not a lawyer, but I have been in the security industry twice in my life, once for several years in college and again briefly (thank God) in management post-military. All I really know is that in Oklahoma and Nevada, misdemeanor arrests must be made by the person who actually saw it happen. Because of this, on a (blessedly) few occassions I became the party making a 'citizen's arrest' after I witnessed misdemeanors and took the party into custody. In the CLASSIC example, I had followed a massively drunk driver till he crashed his car into a light pole at about 5 mph. I cuffed him and waited for the real cops. When they arrived, I presented them with a person so drunk they could not stand unassisted, a crashed car, and a string of sideswiped parked cars, and two MORE witnesses to all that. Sound like probable cause to you? Did to me too, regardless, I was required to go to the jail and fill out all the paperwork to book him because I was the one who saw him drive drunk.
ONLY felony arrests may be made, in those states at least, by amassing probable cause. I was under the impression that this was true nationwide, but I suppose some states might have different statutes.
OK I was just thinking about it, and there ARE some exceptions in Nevada but they really are not applicable to the discussion. Nevada has 'violation's' which are LESS than misdemeanors (simple tresspass, parking violations, etc) these MAY be acted upon by an officer without actually witnessing the event, but that action is limited to writing a citation. If you get one of those, you 'pay the $2.00' (or whatever) and the whole thing goes away.
MVR
(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense if committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
This statute is then analyzed in case law, and the following cases establish precedent in application of the statute.
Witt v. Staste, 745 S.W.2d 472, 476 (Tex.App.--Houston [1st District] 1988, pet, ref'd). "The law in Texas regulating warrantless arrest is more stringent than the demands of the U.S. Constitution, and any arrest of a person without a warrant is deemed to be unreasonable unless it is specifically authorized by statute."
Cornejo v. State, 917 S.W.2d 480, 482-83 (Tex.App.--Houston [14th District] 1996, pet. ref'd). "Even if probable cause exists, an exception to the warrant requirement must still be present to justify the arrest. When police receive information from a private citizen whose only contact with police is a result of having witnessed a criminal act committed by another, the credibility and reliability of the information is inherent. This rule also applies if the citizen is the victim of a crime."
Akins v. State, 202 S.W.3d 879, 889 (Tex.App.--Forth Worth 2006, pet. ref'd). "The test for probable cause for a warrantless arrest under this provision is 'whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.' In other words, although the statute states that the offense must be one that is committed within the officer's presence or view, an officer can make a warrantless arrest based on an offense that was committed at an earlier time and futher, the officer does not even have to personally see the offense committed before the warrantless arrest is justifed under article 14.01(b). This means that in determining whether probable cause exists to believe an offense was committed within a officer's presence or view, an officer's knowledge and trustworthy information may come from facts and circmstances obtained from lay citizens.
Sanchez v. State, 582 S.W.2d 813, 815 (Tex.Crim.App. 1979). "A private citizen may, without warrant, arrest a person found drunk in a public place." See also Heck v. State, 507 S.W.2d 737, 740 (Tex.Crim.App. 1974)(citizen may make an arrest without a warrant for a misdemeanor offense when it is a breach of peace.
State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002), "An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. However, the information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense. The odor of marijuana, standing alone, does not authorize a warrantless search and sezure in a home".
Therefore, my argument is that a warrantless misdemeanor arrest made outside the officer's view or presence requires both probable cause and a statutory exception to the warrant requirement. The exceptions to the warrant requirement are spelled out in Article 14.03 Texas Code of Criminal Procedure, and they are numerous.
Article 14.03 of the Texas Code of Criminal Procedure states an officer may arrest, without warrant, and without being present to observe the offense whenever:
1)a person is found in a suspicious place and under circumstances which reasonably show that such person has been guilty of some felony, breach of the peace, public intoxication, or threatens, or is about to commit some offense against the law;
2) persons who the officer has probable cause to believe have committed an assault resulting in bodily injury to another person, and probable cause to believe that there is danger of futher bodily injury to that person;
3) persons who the officer has probable cause to believe have committed a violation of a protective order issued on the basis of sexual assault;
4) persons who the officer has probable cause to believe have committed family violence;
5) persons who the officer has probable cause to believe have prevented or interfered with an emergency telephone call;
6) a person who has made a statement to the officer that would be admissible against the person as a voluntary and freely made statement made without compulsion or persuasion, and which statement establishes probable cause to believe that the person has committed a felony.
Thus, for some offenses, ie, family violence, DWI (considered a breach of the peace), etc, probable cause is combined with a statutory exception to the warrant requirement, and an arrest can be made without observing the misdemeanor.
For other offenses where the officer does not observe the misdemeanor, ie, possession of marijuana, or assault bodily injury when there is no probable cause to fear further bodily injury, there may be probable cause that the misdemeanor was committed, but there is lacking a statutory exception to the warrant requirement, and so such an arrest requires a warrant. Thus a neighbor can't call a cop and claim he saw you smoking a joint, and request a warrantless arrest
If this sounds confusing, it is. That's why lawyers battle it out over such issues as: is possession of marijuana a breach of the peace? is a bar fight that happened yesterday sufficient to arrest someone without a warrant? is a fight between a former boyfriend and girlfriend sufficient to claim family violence?
There is no black or white answer to these questions; only different shades of grey with a lot of "it depends" answers.
MVR’s post got me interested in this and a quick look suggests that he was partially correct. But there a number of qualifications you have to make.
I’m not suggesting that I “know” the answer to any of this but this is what I think. The Constitution does not limit misdemeanor arrests to those committed in the officer’s presence. So you have to look at the state statute governing arrests as Bruce did in Texas. Here the felony/misdemeanor distinction is not always helpful since there are so many different kinds of misdemeanors in various states.
Surely if the arresting officer has a warrant, there is no “in the presence” requirement, so I think we are talking about warrantless arrests.
The next distinction is who is making the arrest. MVR is absolutely correct that a citizen is empowered to arrest for a misdemeanor only if committed in his presence. ((d) When the offense is committed in the presence of a private person and he makes an arrest immediately after the offense is committed). In Nevada, however, the only limitation I see for warrantless simple misdemeanor arrests by state LE officers is as to the time of arrest. The statute says:
1. If the offense charged is a felony or gross misdemeanor, the arrest may be made on any day, and at any time of day or night.
2. If it is a misdemeanor, the arrest cannot be made between the hours of 7 p.m. and 7 a.m., except:
(a) Upon the direction of a magistrate, endorsed upon the warrant;
(b) When the offense is committed in the presence of the arresting officer;
(c) When the person is found and the arrest is made in a public place or a place that is open to the public and:
(1) There is a warrant of arrest against the person; and
(2) The misdemeanor is discovered because there was probable cause for the arresting officer to stop, detain or arrest the person for another
alleged violation or offense;
So as I read THIS statute, a state LE officer can arrest for a simple misdemeanor without a warrant even though not committed in his presence, so long as he does so between 7 AM and 7 PM. He must always have probable cause to do so. Conversely, he cannot arrest,without a warrant, for a simple misdemeanor not committed in his presence between 7 PM and 7 AM. Whew.
I have no idea what Nevada considers a gross misdemeanor but basic prostitution/solicitation is a “misdemeanor” which I presume means it’s not gross. So the moral of the story is - stop those afternoon appointments in Vegas; if you wait till after 7 PM, the offense must be committed in the officer’s presence before he can arrest you without a warrant.
So unlike Texas, where “a warrantless misdemeanor arrest made outside the officer's view or presence requires both probable cause and a statutory exception to the warrant requirement” [quoting Bruce] Nevada would further close the door during the day time.
Again this was based on a quick look at the statute. I’ll leave it to our Nevada aces to tell me if I missed something.
And what “in the presence” means we will leave for another day in light of this case cited by Bruce [State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002), "An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. However, the information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense].
If an officer with probable cause stands outside the door and hears –oh, oh, ohhhhhhh! – he might be able to arrest during the night time under this case.
-- Modified on 1/1/2009 4:48:27 PM
NRS 171.124 Arrest by peace officer or officer of Drug Enforcement Administration.
1. Except as otherwise provided in subsection 3 and NRS 33.070 and 33.320,(dealing with protective orders) a peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony or gross misdemeanor, although not in his presence.
(c) When a felony or gross misdemeanor has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
(d) On a charge made, upon a reasonable cause, of the commission of a felony or gross misdemeanor by the person arrested.
(e) When a warrant has in fact been issued in this State for the arrest of a named or described person for a public offense, and he has reasonable cause to believe that the person arrested is the person so named or described.
2. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony or gross misdemeanor, and is justified in making the arrest, though it afterward appears that a felony or gross misdemeanor has not been committed.
3. An officer of the Drug Enforcement Administration may only make an arrest pursuant to subsections 1 and 2 for a violation of chapter 453 of NRS.
A misdemeanor is a crime that is punishable by imprisonment in the county jail for a period of up to 6 months and a fine of up to $1,000. This is similar to a Class B misdemeanor in Texas. A gross misdemeanor is punishable by up to one year in the County Jail and a maximum fine of $2,000. This is similar to a Class A misdemeanor in Texas. A felony is a more serious crime that is punishable by a period of imprisonment in the Nevada State Prison that is longer than a year and fines as specified by individual statutes.
From what I have gleaned from this statute, nighttime arrests without warrant and without being committed in officer's presence are only allowed for felonies and gross misdemeanors .
Prostitution is a lesser misdemeanor (called a Class B misdemeanor in Texas), and can be subject to arrest only if witnessed by the officer, whether at night or otherwise. Likewise, possession of marijuana is a lesser misdemeanor. A first DWI is also a lesser misdemeanor, and cops can only arrest if they see it, or someone sees it like Vonrichtofen did in his citizens arrest. If they see you do it, they can arrest without warrant, whatever the degree of offense. If they don't see you do it, they can only arrest if offense is felony, or gross misdemeanor(2d DWI, 2d prostitution, 2d anything, family violence, assault bodily injury,etc,)
Thus Nevada is pretty similar to Texas; they just arrive at the same outcome using different verbiage. Texas spells out specific offenses by name, and Nevada categorizes exceptions to a warrant requirement by including all gross misdemeanors (Class A misdemeanors). I think overall, Texas makes it harder for cops to arrest you without seeing the offense. A Nevada cop can arrest you without warrant for a bar fight that happened last week even if he didn't see it (a gross misdemeanor), but in Texas, the cop has to get a warrant to arrest for that same fight unless he reasonably believes further injury is probable unless he acts quickly.
So regardless whether you're in Vegas or Houston, cops can't arrest you for prostitution (1st offense) unless they witness it. Doesn't matter about the time of day, for that particular offense--they just must witness it. I don't know where you found the 7 p.m. to 7 a.m exception, unless that refers to the ability to arrest at 'night' for a felony or gross misdemeanor that the officer didn't see. That part of the statute just seems to be a mechanism for protecting cops from mistakes they make at night.
I don't pretend to know all the case law in Nevada, and so this is just a quickie analysis of the issue as it stands in Nevada just based on reading the statute.
I passed over 171.124 in my quick review bc by its terms it governs only arrests for felonies, gross misdemeanor, or public offenses (it also applies only to “peace officers” which may or may not include the state police and DEA agents). Nevada has a separate statute governing, inter alia, misdemeanor arrests that seems to apply to all state LE officers. That statute, NRS 171.136, is the one that contains the day time night rules for misdemeanors.
Here is the statute in full
NRS 171.136 When arrest may be made.
1. If the offense charged is a felony or gross misdemeanor, the arrest
may be made on any day, and at any time of day or night.
2. If it is a misdemeanor, the arrest cannot be made between the hours of
7 p.m. and 7 a.m., except:
(a) Upon the direction of a magistrate, endorsed upon the warrant;
(b) When the offense is committed in the presence of the arresting
officer;
(c) When the person is found and the arrest is made in a public place or
a place that is open to the public and:
(1) There is a warrant of arrest against the person; and
(2) The misdemeanor is discovered because there was probable cause for
the arresting officer to stop, detain or arrest the person for another
alleged violation or offense;
(d) When the offense is committed in the presence of a private person and
he makes an arrest immediately after the offense is committed;
(e) When the offense charged is battery that constitutes domestic
violence pursuant to NRS 33.018 and the arrest is made in the manner
provided in NRS 171.137;
(f) When the offense charged is a violation of a temporary or extended
order for protection against domestic violence issued pursuant to NRS
33.017 to 33.100, inclusive;
(g) When the person is already in custody as a result of another lawful
arrest; or
(h) When the person voluntarily surrenders himself in response to an
outstanding warrant of arrest.
(Added to NRS by 1967, 1402; A 1977, 874; 1985, 6, 2023; 1991, 331; 1993,
119; 2001, 1431)
Look at subsection 2 -it prohibits misdemeanor arrests between 7 PM and 7 AM except when “in the presence of the officer.” Since there is no comparable prohibition for arrests between 7 AM and 7 PM, I reasoned that a misdemeanor arrest can be made during this period without the offense being committed in the presence of the officer. Whew.
Now if “public offenses” as used in 171.124 includes misdemeanors we have a huge conflict between the statute you parsed and the one I’m reading, unless there is a peace officer state police distinction which would not make much sense.
So my working theory remains that 171.136, not 171.124 governs arrests for first time prostitution.
What do you think?
For anyone following this as we try to figure this out, this shows why you should never rely on anything you read on the legal corner board and should consult a licensed attorney in your state for any legal question.
"Public Offense: An act or omission forbidden by law, and punishable as by law provided. Term used to describe a crime as distingished from an infringement of private rights. A public offense, the commission of which authorizes private person to arrest another, includes misdemeanors." Black's Law Dictionary, Fifth Edition, 1983.
"Peace Officer: This term is variously defined by statute in the different states; but generally it includes sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duty it is to enforce and preserve the public peace. In general, any person who has been given general authority to make arrests. Generally a "peace officer" is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime and he is a conservator of the peace, which term is synonymous with the term "peace officer"." Black's Law Dictionary, Fifth Edition, 1983.
NRS Section 171.124
...a peace officer ... may, without a warrant, arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony or gross misdemeanor, although not in his presence...
This I believe is the controlling statute for the issue we're discussing. A public offense is any crime--misdemeanor or felony; and a peace officer can arrest for any crime if committed in his presence. The statute then makes an extra provision for arrest when violation not in presence--and that is only for felonies and gross misdemeanors, which doesn't include prostitution.
Your statute Sec. 171.136 controls specifically what time an arrest can be made--anytime when a felony or gross misdemeanor, which doesn't include prostitution. The 7 pm to 7am prohibition on arrest for misdemeanors (which would include prostitution and other lesser misdemeanors like traffic tickets, etc.)unless occuring in the presence, doesn't lead to the conclusion that 7 am to 7 pm arrests can be for violations outside the presence. You can't "reason out" a legal conclusion because the converse is true. It has to be spelled out--like it is in Sec. 171.124: peace officer can arrest for any public offense committed in his presence; peace officer can arrest for felony or gross misdemeanor committed outside his presence.
Unless a statutory provision somewhere authorizes a lesser misdemeanor arrest in the daytime even though not occuring in the presence, an officer can't do it. Such authority is spelled out for gross misdemeanor arrests and felonies. Police powers have to be enumerated and spelled out; they can't be presumed. The statute doesn't make any sense otherwise--at least not to me.
Thanks for the stimulating discussion.
As to whether NRS 171.124 governs misdemeanor arrests on grounds that a “public offense” includes misdemeanors as Black’s dictionary states, I am 99% convinced that this is not true. I believe the phrase “Public offense” in the Nevada Criminal Code is a term of art so the dictionary meaning of this phrase would not control. I reach this conclusion from a broader review of the Nevada Criminal Code.
First, the Code expressly designates specific offenses –usually damage to property type offenses – as “public offenses” – while specific minor crimes are designated as misdemeanors.
Second, there is a distinct procedure as to how “public offenses” are prosecuted that differs in some respects as to how misdemeanors are prosecuted.
Third, Nevada has a dedicated court –the Justice Court - with jurisdiction to try only misdemeanors. The court has no jurisdiction over public offenses.
Finally, consider the arrest statutes themselves. NRS 171.136 2(2) governs when a citizen can make an arrest for a misdemeanor. But NRS 171.126 governs when a citizen “may arrest another … 1. For a public offense committed or attempted in his presence.”
So the Code consistently distinguishes between “public offenses" and misdemeanors and therefor I am fairly certain that a “public offense” is distinct from a “misdemeanor” in the Nevada scheme. NRS 171.124 therefore has no application to a misdemeanor arrest at all since by its terms it applies only to felonies, gross misdemeanor, and public offenses. We are left with NRS 171.136 as the statute that, as it expressly says, governs misdemeanor arrests.
I totally agree with Bruce, however, that it is not proper to infer a probable cause only warrantless day time arrest without an affirmative grant of this power and NRS 171. 136 does not contain such a grant. The only solution I can propose is that this power is implied from the state constitution, that there is another statute that generally grants the power to make misdemeanor arrests, or else this power drives from the common law.
But, whatever the merits of these theories, the bottom line is that there is no statute we have found yet that either grants or prohibits warrantless misdemeanor arrests in the day time, unless in the presence of the officer.
Yet there is a statue that expressly prohibits such arrests at night, unless in the presence of the officer or one of the other exceptions.
So I remain uncertain as to whether probable cause only warrantless misdemeanor arrest can be made in the day time.
-- Modified on 1/4/2009 6:59:22 AM
Of course public offenses include misdemeanors. Look at prior Nevada statutes:
Nevada Territorial Statutes: 1900
Crimes Defined: Section 3986, s. 1:
A crime or public offense is an act or omission, forbidden by law, and to which is annexed, on conviction: 1)Death
2)Imprisonment
3)Fine
4)Removal from office
5)Disqualification to hold
any office of honor, trust,
or profit under the territory
Offenses: How Divided: Section 3987. s.2:
Public offenses are divided into two:
1) Felonies
2) Misdemeanors
Felony: Section 3988, s.3:
A felony is a public offense punishable with death, or by imprisonment in territorial prison.
Misdemeanor: Sec. 3989, s.4:
Every other public offense is a misdemeanor
Conviction necessary: Sec. 3990, s.5:
No person can be punished for a public offense except upon legal conviction in a court having jurisdiction
I know this is 100-year old statute, but it echoes Sec. 171.124 and 171.126 in the current statute, and it is written in clearer language than the current one. Using this statute as historical legislative background, maybe you can see more clearly how the law evolved.
Black's Law Dictionary is not just another dictionary. It is the equivalent of the medical profession's Gray's Anatomy. It is used as citation by lawyers, judges, legislators, etc, whenever some term is ambiguous and in need of clarification. The first edition of Black's law dictionary was published in 1891, and it is the world's most widely used and recognized authority for definitions of legal words and terms.
So what we have is an unambiguous territorial statute, and Black's Law Dictionary, and an ambiguous (at least to you) current Nevada statute.
Just the very fact that Sec. 171.124 appears earlier in the statute than Sec. 171.136 gives it priority from a legal analysis stand point.
I wish you had given cites and statutes for your claim that some offenses are classed as public offenses and others are classed as misdemeanors. That makes no sense. All public offenses are crimes. All misdemeanors---minor simple or gross--are crimes. All misdemeanors are public offenses.
I maintain that a warrantless arrest for prostitution when not witnessed is an illegal arrest.
I'm not licensed to practice in Nevada, so I don't have access, or the inclination, to research Nevada case law. I am licensed in Texas with 25 years experience in Texas, and I can't believe the law in Nevada on this issue is that different.
You're making a torturous interpretation of something that doesn't have to be that complicated. Read the plain language of the statute. The simplest interpretation is ususally the correct one.
Okay. Enough of this subject. Talk to you later.
Okay I'll take another look at it. But, in the meantime, if a pubic offense within the meaning of 171.124 includes a misdemeanor, this would kick us back into my earlier statement that there is a conflict between 171.124 and 171.136 that must be harmonized.
You seem content to read 171.136 completely out of the code. That cannot be right and just because 171.124 is "first" it cannot as a matter of law render 136 void as you well know from basic rules of stqtutory construction. You would not even reach this canon unless the statutes are irreconcialbly inconsistent and, in fact, enactment dates would be the more persuasive canon, not the order they are arranged in the Code. Both statutes were enacted in 1967 but I can't tell when the subsections were amended. But the many amendments to both statutes going up to 2003 belies any notion that one supercedes the other.
At the end of day we have to give some meaning to 171.136 which does render night arrests illegal but is silent as to day time arrests. You cannot simply ignore this far more specific statute which if anything would construed as modifying 124 because of its specificity.
I'm beginning to suspect, however, that the Nevada statutes just are not entirely consistent. Note this statute which makes property damage public offenses either felonies, misdemeanors, or gross misdemeanors depending on the value of the property damaged
NRS 193.155 Penalty for public offense proportionate to value of property
affected or loss resulting from offense.
Every person who is guilty of a public offense proportionate to the value
of the property affected or the loss resulting from the offense shall be
punished as follows:
1. Where the value of the loss is $5,000 or more or where the damage
results in impairment of public communication, transportation or police and
fire protection, for a category C felony as provided in NRS 193.130.
2. Where the value of the loss is $250 or more but less than $5,000, for
a gross misdemeanor.
3. Where the value of the loss is $25 or more but less than $250, for a
misdemeanor.
4. Where the value of the loss is less than $25, by a fine of not more
than $500.
(Added to NRS by 1967, 459; A 1995, 1168)
So 171.1224 which refers to arrests of for felonies, gross misdemeanor, or public offenses does not match up well since a public offense can be a felony, misdemeanor or gross depending on the value of the property. In other words if public offenses is a generic term that includes all the others, the arrest statutes should not be talking about felonies, gross misdemeanor, or public offenses.
The first statute (our current sec. 171.124) was enacted in 1867 as Sec. 3986 of the Nevada Territorial Criminal Code, and it is almost exactly like the statute you say was enacted in 1967, and it is also almost exactly like the definition in Black's Law Dictionary. So 171.124 comes first in enactment date, and in order of listing in the Code. I'm not saying that 171.136 is void, it just covers offenses that we're not talking about--traffic offenses maybe.
I think that 7pm to 7am prohibition on arrests could be meant to prevent nighttime arrests for traffic offenses when officer didn't see it.
"Except for speeding, an officer may arrest and take into custody a person 'seen' committing a traffic offense. Owens v. State 861 SW 2d 419, 420 (Tex App--Dallas 1993)". Those are offenses that can be subjected to arrest in the daytime without an officer observing it, ie, when an automatic camera catches you running a red light, and there may be others. Of course, that's Texas caselaw.
You'll need to get an annotated Nevada Revised Statutes to find Nevada caselaw that explains that section.
1. My initial view that a “public offense” as used in NRS 171.124 does not include a misdemeanor is incorrect not only because of the territorial statute you found but also bc NRS 193.155 designates damage to property public offenses between $25 and $250 as misdemeanors. Further, one federal district court has expressly cited this statute as applying to misdemeanor arrests.SPENCE v. WASHOE COUNTY SCHOOL DISTRICT, (United States District Court, D. Nevada. Nev. 2002)(“Nevada law authorizes a police officer to make a warrantless arrest for a misdemeanor only if the offense was "committed or attempted in his presence." Nev. Rev. Stat. § 171.124(1)(a)”).
There is still some superfluous language in 171.124 bc it refers to felonies, gross misdemeanors, and public offenses (which seems redundant since a public offense can be a felony or gross misdemeanor depending on the value of the property) but I can’t explain it.
2. Therefore, pursuant to NRS 171.124(a), subject to the specified exceptions, “a peace officer …may …without a warrant, arrest a person:
(a) For a public offense committed or attempted in his presence”
and this includes those public offenses designated as misdemeanors, such as prostitution.
3. NRS 171.136(2) limits the power to arrest for any misdemeanor, whether with a warrant or without, by prohibiting the arrest between the hours of 7 pm and 7 am, unless one of the exceptions applies. If no warrant, there IS an exception that the officer can still arrest between 7 p.m and 7 A.m. if the offense was committed in his presence:
2. If it is a misdemeanor, the arrest cannot be made between the hours of
7 p.m. and 7 a.m., except:
… (b) When the offense is committed in the presence of the arresting
officer;
NRS 171.136(2)(b).
NRS 171.136(2)(b) does not imply that day time arrests may be made “outside of the presence” and on probable cause only. Rather, subsection b simply provides that the flat prohibition for nighttime arrests never applies when a misdemeanor is committed in the officer’s presence. NRS 171.124, which generally authorizes such arrests, remains controlling.
If correct, this harmonizes both statutes. I was guilty of reading subsection (b) out of context of section 2(b) when I suggested that it authorized warrantless daytime arrests on probable cause only.
4. So the end result is, as you stated, warrantless misdemeanor arrests in Nevada can never be made except in the presence of the officer, subject to the exceptions made in NRS 171.124.
Thank you for critiquing my analysis and doing so well.
-- Modified on 1/7/2009 12:50:19 PM
"The Constitution does not limit misdemeanor arrests to those committed in the officer’s presence." You're correct in this.
But the English Common Law, originating in 14th Century English medieval society, and from which we derive modern-day caselaw precedence, required all suspected misdemeanor violations not committed in the arresting person's presence, to be placed in front of a magistrate to determine probable cause. The magistrate could then issue a warrant if he believed it was justified--a warrant requirement.
In an uneducated society where few could even read, let alone analyze the complexities of probable cause, this prevented nuisance arrests, and neighbors arresting neighbors, and family feuds, and peace officers arresting people based on gossip, rumors, hearsay, and innuendos--he said she said scenarios.
Only a magistrate was deemed to have the legal knowledge and non-partisanship to determine what equals probable cause in misdemeanor cases where no one saw it happen. Felonies of course were deemed to be so serious, that society felt it worth erring on the side of caution and allowing circumstantial probable cause to arrest in cases where no one saw me do it.
State statutes have evolved from that basic premise--that warrantless misdemeanor arrests have to be witnessed by the arresting person--and have codified exceptions to this "warrant requirement". Such exceptions as family violence, gross misdemeanors, whatever, have sprouted up in state statutes, and most states are pretty similar when it comes to those exceptions.
Just a little history that I found interesting and relevant.
After reading all that, I'll stand by my assertion that LE must witness the misdemeanor (save some of the listed exceptions of Domestic Battery) to make an arrest. Yes, they CAN amass probable cause for a misdemeanor arrest, go to a judge, get a warrant, and THEN go arrest the subject. Yeah right. Like they are going to put that much time into a soliciting collar!
I think we went atangent about the 7pm-7am thing, what I'm betting is that the law there is referring to making misdemeanor arrests with a warrant only between 7am and 7pm - you don't go kick a door down in the middle of the night to haul someone in for unpaid parking tickets - facetious I know, but I think thats what they are getting at.
ALL of this makes it abundantly clear that NONE of us can effectively read the law and interpret it without a law degree and a good deal of experience. The damn lawyers have made things so that the layman (pun MASSIVELY intended here!) cannot read and accurately interpret the law.
MVR
Why did the chicken cross the road?
To get to the other SIDE!
Why did the LAWYER cross the road?
(scroll down)
Cause his dick was still in the CHICKEN!
No question that you were correct that “LE must witness the misdemeanor (save some of the listed exceptions of Domestic Battery) to make an arrest” between 7 pm and 7 Am. That is exactly what the statute says.
But I do not understand your point about daytime arrests:
I think we went atangent about the 7pm-7am thing, what I'm betting is that the law there is referring to making misdemeanor arrests with a warrant only between 7am and 7pm - you don't go kick a door down in the middle of the night to haul someone in for unpaid parking tickets - facetious I know, but I think thats what they are getting at.
You can’t seriously be suggesting that in Nevada police can arrest for a misdemeanor between 7am and 7pm ONLY if they have a warrant. I think you meant to say something else so please clarify.
To continue championing the view that warrantless misdemeanor arrests must AT ALL TIMES be made ONLY “When the offense is committed in the presence of the arresting officer”; you need to propose some valid explanation as to why the statute contains the 7 PM to 7 AM language. If the legislature had intended to restrict such arrests to only when “When the offense is committed in the presence of the arresting officer” it would have said so, and I would be on the General Discussion Board commenting on the spanking post tonight instead of still trying to figure this one out.
And let's try not to insult the chickens anymore.
Many warrants have restrictions on their service. In the extreme, a 'no knock' warrant allows the cops to bust in the door and charge in totally unannounced. At the other end of the spectrum there are misdemeanor warrants that have limits on when they can be served. In point of fact, there is NO attempt to serve many misdemeanor warrants, they simply are on file and only acted on when LE has collateral contact with you (a traffic stop etc). And what I meant to say was that, yes, I believe that there is a statutory limit of 7am to 7pm for the service of misdemeanor warrants in Nevada. But ALSO what I was saying is that we cannont really understand the legalese without a law degree etc...
And you are right... I was truly demeaning toward our fowl friends.
MVR
realizing we are all apparently not lawyers, I was having some (probably healthy?) paranoia issues, with visions of doors busting in on me mid-stride as it were... which, while not probable, are possible.
understood.