NRS
171.178 Appearance before magistrate; release from custody by arresting
officer.
1. Except as otherwise provided in
subsections 5 and 6, a peace officer making an arrest under a warrant issued
upon a complaint or without a warrant shall take the arrested person without
unnecessary delay before the magistrate who issued the warrant or the nearest
available magistrate empowered to commit persons charged with offenses against
the laws of the State of Nevada.
2. A private person making an arrest
without a warrant shall deliver the arrested person without unnecessary delay
to a peace officer. Except as otherwise provided in subsections 5 and 6 and NRS 171.1772, the peace officer shall take
the arrested person without unnecessary delay before the nearest available
magistrate empowered to commit persons charged with offenses against the laws
of the State of Nevada.
3. If an arrested person is not brought
before a magistrate within 72 hours after arrest, excluding nonjudicial days,
the magistrate:
(a) Shall give the prosecuting attorney an
opportunity to explain the circumstances leading to the delay; and
(b) May release the arrested person if the
magistrate determines that the person was not brought before a magistrate
without unnecessary delay.
4. When a person arrested without a
warrant is brought before a magistrate, a complaint must be filed forthwith.
5. Except as otherwise provided in NRS 178.484 and 178.487, where the defendant can be
admitted to bail without appearing personally before a magistrate, the
defendant must be so admitted with the least possible delay, and required to
appear before a magistrate at the earliest convenient time thereafter.
6. A peace officer may immediately release
from custody without any further proceedings any person the peace officer
arrests without a warrant if the peace officer is satisfied that there are
insufficient grounds for issuing a criminal complaint against the person
arrested. Any record of the arrest of a person released pursuant to this
subsection must also include a record of the release. A person so released
shall be deemed not to have been arrested but only detained.
(Added to NRS by 1967,
1404; A 1971,
574; 1975,
1201; 1979,
323, 1190;
1997,
3356; 2001,
2023)
Notes of Decisions
Cited in
22
cases (
1 in the last 5 years), 1969–2025 · leading case:
Powell v. Nevada, 511 U.S. 79 (1994).
Powell v. Nevada, 511 U.S. 79 (1994).
· cites it 7× “" Nev. Rev. Stat. § 171.178 (3) (1991). Powell emphasized that 10 days had elapsed between his arrest on November 3, 1989, and his November 13 initial appearance before a Magistrate.”
Powell v. State, 930 P.2d 1123 (Nev. 1997).
· cites it 10× “At trial, prosecutors presented evidence of Powell's statements both before his arrest and on the day of his probable cause hearing.”
Sheriff, Clark Cnty. v. Berman, 659 P.2d 298 (Nev. 1983).
· cites it 12× “After the magistrate denied their motions, they petitioned the district court for writs of *300 habeas corpus, arguing that the 73- and 85-day delays between their arrest and arraignments violated NRS 171.178 and their constitutional right to a speedy trial.”
Deutscher v. State, 601 P.2d 407 (Nev. 1979).
· cites it 4× “" NRS 171.178. But while this court has recognized the statutory requirement, we have also held that in the absence of a statutorily-fixed period of time, a reasonable time is presumed before an arraignment must be conducted.”
Powell v. State, 838 P.2d 921 (Nev. 1992).
· cites it 4× “If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: (a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and (b) May release the arrested person if…”
Huebner v. State, 731 P.2d 1330 (Nev. 1987).
· cites it 4× “The purpose behind NRS 171.178 is to prevent “resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use.”
Bradley v. LaClair, 599 F. Supp. 2d 395 (W.D.N.Y. 2009).
· cites it 6× “178(3), which provides as follows: “If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: ‘(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and…”
Elvik v. State, 965 P.2d 281 (Nev. 1998).
· cites it 3× “Elvik argues that the fourteen-day period between his arrest and his arraignment violated his right to a timely arraignment, *895 warranting dismissal of the case or suppression of evidence.”
Bushnell v. State, 637 P.2d 529 (Nev. 1981).
· cites it 4× “Subsection 3 of that statute specifies the procedures to be followed when more than 72 hours elapse between the arrest and the first appearance.”
Dunkin v. Lamb, 500 F. Supp. 184 (D. Nev. 1980).
· cites it 2× “” After his arrest on the fugitive warrant on November 30, 1978, plaintiff was held in the Clark County jail for thirteen days before he was arraigned.”
McMichael v. State, 577 P.2d 398 (Nev. 1978).
“The proscription in NRS 171.178(1) against “unnecessary delay” in bringing an arrested person before a magistrate was not violated.”
Tellis v. Sheriff of Clark Cnty., 459 P.2d 364 (Nev. 1969).
· cites it 2× “Here we are concerned only with the appellant’s due process rights between the time of his arrest on December 2, 1967 and his arraignment on January 23, 1968.”
— Nev. Rev. Stat. § 171.178(1) — 7 cases
Elvik v. State, 965 P.2d 281 (Nev. 1998).
“Elvik argues that the fourteen-day period between his arrest and his arraignment violated his right to a timely arraignment, *895 warranting dismissal of the case or suppression of evidence.”
Huebner v. State, 731 P.2d 1330 (Nev. 1987).
“The purpose behind NRS 171.178 is to prevent “resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use.”
Dunkin v. Lamb, 500 F. Supp. 184 (D. Nev. 1980).
“” After his arrest on the fugitive warrant on November 30, 1978, plaintiff was held in the Clark County jail for thirteen days before he was arraigned.”
Bushnell v. State, 637 P.2d 529 (Nev. 1981).
“Subsection 3 of that statute specifies the procedures to be followed when more than 72 hours elapse between the arrest and the first appearance.”
McMichael v. State, 577 P.2d 398 (Nev. 1978).
“The proscription in NRS 171.178(1) against “unnecessary delay” in bringing an arrested person before a magistrate was not violated.”
— Nev. Rev. Stat. § 171.178(2) — 2 cases
— Nev. Rev. Stat. § 171.178(3) — 6 cases
Powell v. State, 930 P.2d 1123 (Nev. 1997).
“At trial, prosecutors presented evidence of Powell's statements both before his arrest and on the day of his probable cause hearing.”
Powell v. State, 838 P.2d 921 (Nev. 1992).
“If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: (a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and (b) May release the arrested person if…”
Bradley v. LaClair, 599 F. Supp. 2d 395 (W.D.N.Y. 2009).
“178(3), which provides as follows: “If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: ‘(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and…”
Elvik v. State, 965 P.2d 281 (Nev. 1998).
“Elvik argues that the fourteen-day period between his arrest and his arraignment violated his right to a timely arraignment, *895 warranting dismissal of the case or suppression of evidence.”
Huebner v. State, 731 P.2d 1330 (Nev. 1987).
“The purpose behind NRS 171.178 is to prevent “resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use.”
— Nev. Rev. Stat. § 171.178(4) — 1 case
Bradley v. LaClair, 599 F. Supp. 2d 395 (W.D.N.Y. 2009).
“178(3), which provides as follows: “If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate: ‘(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and…”
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