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State high court hears Tilton probable cause case

In 2008, a SWAT team entered Kenneth Lahm’s home and detained him on a single claim he had assaulted a woman over multiple days. Yesterday, the state Supreme Court weighed whether the Tilton detective who prompted the arrest failed to properly vet the accuser, whose account subsequently fell apart.

The charges against Lahm were later dropped, but he sued the detective, Michael Farrington, and the town of Tilton, alleging the ordeal had cost him dearly – both in legal fees and reputation. The suit was subsequently thrown out by a superior court judge.

“If those harms could have been avoided,” his attorney, Michael Sheehan, wrote on appeal, “if that actual innocence could have been uncovered simply through a phone call or two, an interview or two, or by simply questioning the truthfulness of the victim’s otherwise uncorroborated story, then Lahm should have a recourse.”

The state and attorneys representing Farrington and Tilton have warned that the court’s decision could undermine police officers’ ability to intervene in dangerous scenarios. Should the justices rule that officers have a duty to fact-check victims’ claims beyond probable cause – the current benchmark for making an arrest – officers would be less likely to make an arrest, out of fear the act could expose them to litigation, they contend.

“So what you’re arguing is there’s just going to have to be a risk that some people are going to be cooling their heels in jail until things get sorted out,” Justice Carol Ann Conboy asked Terence O’Rourke, an assistant Carroll County attorney speaking during Farrington’s defense. “And that’s the price you pay? That’s the bottom line?”

“That is the bottom line, your honor,” said O’Rourke, adding that probable cause serves as an appropriate balance between the rights of the community and those of the individual.

“So this plaintiff just had to suck it up?” Conboy replied.

“Correct,” he said.

In arguing Lahm’s side, Sheehan offered a hypothetical scenario in which an officer enters a hospital and speaks with a witness to a crime who says her father is right outside and saw the whole thing, and the officer proceeds not to talk to the father.

“There should be some duty to do a reasonable investigation,” he said.

But Chief Justice Linda Stewart Dalianis said that wasn’t the case in Lahm’s arrest. She noted there was no third-party evidence at the time that called into question the accuser’s account.

“Two things,” Sheehan replied. “First, (Farrington) never had probable cause.”

“Well, of course he did,” Dalianis interjected. “Somebody came in and said, ‘Somebody raped me.’ ”

“That’s not what she said, with all due respect.” Sheehan said. “What she said was, ‘I passed out for two days, when I woke up I had these injuries and I feel like I had been assaulted.’ ”

Justice Robert Lynn seemed unconvinced that the detective had erred.

“Outside of confidential informants, isn’t it the law that police officers are basically entitled to take a named informant at his or her word?” he asked Sheehan. “Obviously if Mr. Smith said, ‘I saw little green men arriving on a spaceship,’ that might be a different story, but assuming it is plausible . . .”

Lynn also questioned why Sheehan had taken aim at the probable cause standard, instead of arguing false arrest or false imprisonment. Sheehan responded that he and Lahm had considered those routes, but didn’t elaborate.

Conboy noted that the court may be able to sidestep the probable cause debate altogether, were it to simply uphold the superior court’s finding that Farrington had enough information at the time of the arrest.

“If we agree with you, we don’t even have to get there to determine if this is an appropriate standard,” she said, addressing Robert Dietel, a lawyer representing Tilton.

“I agree,” Dietel said. “That’s the appropriate solution.”

But Conboy, speaking to the state’s attorney, Stephen Fuller, wondered whether officers should be held to a higher standard when an arrest does not involve an immediate discernible threat, as in Lahm’s case.

“At what point is (Farrington) allowed to say, ‘Yep, I have probable cause’?” she asked.

“What they’re arguing is that an entire investigation happened before the arrest was made,” Fuller said. “And that’s not tenable in this situation, given the police’s mandate to enforce the law.”

(Jeremy Blackman can be reached at 369-3319, or on Twitter @JBlackmanCM.)

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So what did they decide?

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