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Editorial: Improving police practices, protecting citizens

The Fourth Amendment’s prohibition against unreasonable searches and seizures of “persons, houses, papers and effects” by government is one of the bulwarks of our free society. The amendment goes on to say that “Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be searched.”

Probable cause, however, like beauty, is in the eye of the beholder. Reasonable people don’t always agree upon just what constitutes probable cause. Nor, the U.S. Supreme Court has ruled, can a precise definition of probable cause be applicable in every case exist. Determining probable cause will always be a balancing act between the need to protect the public from potential harm and the right of citizens to be free of arrest on unsubstantiated charges. For that reason, citizens and law enforcement alike should welcome the state Supreme Court’s upcoming consideration of Lahm v. Farrington. Its decision could add clarity to the law, improve police practices and protect citizens.

The case involves a man who claims he was unfairly arrested and detained on sexual assault charges because the Tilton police failed to adequately investigate the claims of a witness whose truthfulness was later called into question. Based on witness testimony later determined to be inadequate to show probable cause, Kenneth Lahm was arrested, removed from his home by a SWAT team and held in jail over a weekend in 2008. The arrest, Lahm contends, harmed his reputation and cost him legal fees. It could have been avoided, Lahm’s lawyer said, had the police made a minimal attempt to verify the alleged victim’s story.

Some see the case as an attempt to require the police to either go beyond probable cause and determine facts prior to an arrest or risk being sued for negligence. Lose the case, Assistant Senior Attorney General Stephen Fuller argues, and “the ability of the state to protect its citizens, particularly in the domestic violence arena will be eviscerated.” Others in law enforcement share that view, one we believe is a bit overwrought.

In an interview with Monitor reporter Jeremy Blackman, University of New Hampshire School of Law professor Albert Scherr put the dispute in the proper perspective: “What that arrest means is that person may have been put in jail, they may have lost their job, they have been kicked out of school. So the consequences of being arrested are serious enough that we want police to spend the time and really do the work.”

Most police departments, especially those in cities like Concord, do just that – before arresting someone. That’s true even in cases involving domestic violence, which, given the harm that could occur if an abuser and victim aren’t separated, justify a more expansive view of probable cause. Every attempt to discern corroborating or exonerating evidence is made, the officer’s experience and observational skills come into play, and there is prompt oversight over his or her decision to arrest. The law gives the police force’s watch commander the power to “unarrest” someone when, in hindsight, adequate probable cause did not exist. Similarly, prosecutors can be consulted who may determine that cause did not exist. Both serve as checks on a system that will always be fallible.

The news of an arrest, and the charges levied, in the information age, is widespread, obtainable by employers and available essentially forever online and unerasable. The price of being arrested has increased. So should the standards used to determine probable cause.

Solution: Break out the Bearcat! Maybe we should arm the police with grenade launchers as well. No need for warrants in the police state.

Have to disagree with you Rand Paul. Our technology has become nothing more than the Jerry Springer show on steroids. Every day we see folks tried in the media on tidbits of information. Sometimes that damage is deadly when you see folks commit suicide over the exposure. We seem to be a society that feeds on dysfunction and enjoy watching folks who have issues, made poor choices etc. Maybe it is as simple as folks feel better about themselves if they see others that are more dysfunctional than they are. It is a weird thing. I react to dysfunction with sadness and others eat it up like it is a drug fix. Not a lot of good news stories out there. More like stories that enforce the fact our society is really messed up. The media needs to be held responsible for what they promote without all the facts. The Enquirer used to be shunned by folks years ago, and now the media for the most part has turned into the rag that the Enquirer is.

I don't think the courts should make a foolish attempt to regulate or manage what appears on the Internet; IF a change to the probable cause standard needs to take place - which I don't think is necessary - the state legislature can attempt to do it, not five justices on the New Hampshire Supreme Court. Why change something that is constitutionally RXed in the U.S. Constitution (I don't know our State Constitution that well, so please school me on that...). This editorial leaves out the full text of the Fourth Amendment, which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." On pg. 3 of the defendants' brief (thanks SavinoJD!) it says that arrest and search warrants were granted. So warrants issued upon probable cause - two judges found probable cause and issued warrants. I dont have a fancy law degree from Franklin PIerce up on my wall, but it seems that here the dude was arrested properly. I dont really know what happened after that - i guess the chick didnt wanna to testify. The briefs say info was produced by Lahm's investigators contradicting her statements so i guess Jack McCoy didnt wanna prosecute. I did a Google search of Lahm and it looks like Lahm hired investigators in another case too (look up Laconia Daily Sun and Lahm; id provide the link but I bet the Monitor wouldn't like that); that case is also going to the nh supreme court. Anyhow, if this guy Lahm was so injured by what has appeared on the Interwebs why does he keep bringing cases to the Supreme Court? doesn't that bring the spotlight even more on him? I would leave well enough alone... i still don't see the difference between the internet reporting on arrests and the way newspapers have reported arrests for a long time. arrests are public records. are we not supposed to have access to public records?

The police officer investigated and two different judges issued warrants (one for arrest and one for a search of Lahm's house).

Oral argument is scheduled for Wednesday, November 13, 2013, beginning at 9:30 a.m. at the New Hampshire Supreme Court. ALL of the briefs are available here: http://www.courts.state.nh.us/supreme/ebriefs/2012/index.htm After reading them, it is clear that warrants were issued prior to arrest and a search was conducted (despite some of the amici apparently being confused regarding this fact). The editorial is blatantly wrong - probable cause was found! The police officer found probable cause and then went to two judges who both found probable cause and issued warrants! What happened was the Belknap County Attorney's Office decided there wasn't enough evidence to win the case, so the charges were dropped. This happens every day in the criminal justice system. Sadly, the Belknap County Attorney's Office didn't even find the time to prepare an amicus brief.

WHat is a brief? I DO NOT want my taxes raised. I don't understand why the Attorney Genereal's Office don't just do all prosecution. Our state has less than 2mm people in it, but we have all of these county offices that put people in prison too. No wonder we get things wrong - one example Kirk Bloodsworth - those lawyers get bored and just wantt o put people in prison. I could see having all of these offices to put people in prison in a city like New York - where Brooklyn and Queens both have more than 2mm peopleliving there - not in New Hampshire where our entire state has less than 2mm people living here. I agree with RandPaul2016 - we should just privatize the police force. There should just be a state police force and Attorney Genereal's Office that puts people in jail. Then if some rich town wants to pay more, let them pay for the xtra investigations, prosecutions, and police. What wld solve all of this is arming everyone.

In this case, two detached magistrate judges issued warrants for arrest. Who else should review the existing evidence prior to arresting an individual? Is New Hampshire, at the town level, ready to pay for the costs associated with requiring police departments to "investigate further" than probable cause? Is New Hampshire ready to be the only state in the union to create such a new standard? I advise everyone chiming in on this board to read the brief - which clearly was not read by this newspaper's editorial board - submitted by the Carroll County Attorney's Office available here: http://www.courts.state.nh.us/supreme/ebriefs/2012/20120902_carrollamicusbrief.pdf It states, among other things, that: "The ramifications of adding a 'duty to investigate' can be explained through simple economic logic. As a result of adding such a duty, labor costs per investigation or police complaint will rise faster than the sum of revenues and state subsidies budgeted to law enforcement. This will have severe ramifications on town police forces, which are funded through town budgets. In reaction, a private firm would respond to higher labor costs by substituting capital and technology for labor, but here, this is not possible because a local government could not substitute labor costs for technology with regards to police investigation because much of the technology is cost prohibitive and may infringe on protected constitutional rights. See, e.g., United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012) (the government’s attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constituted a search under the Fourth Amendment); Kyllo v. United States, 533 U.S. 27 (2001) (using a thermal-imaging device to obtain any information regarding a home’s interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search - at least where the technology in question is not in general public use); Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (surveillance of private property using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant, but Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations.)."

Great. Now people are going to say we need to raise taxes to pay for all of the new stuff police have to do. We should just privatize the police in every town and have people pay for the police services they use. I'm stuck paying for trash collection in Portsmouth even though I don't want it. now Im gonna have to pay for more police investigations for no reason AND pay more for healthcare.

The open internet has changed the playing field, once information is out there there is no bringing it back. I would suggest a change in the reporting structure by the police. No public announcement of a persons arrest until that person is formally charged. This allows the preliminary follow up work of investigating facts, after that if there is probable cause then the formal charge is made and it becomes public. If the person is not formally charged then the records are destroyed or given to that person so they could use them as evidence in say a stalking or harassment case later. I also feel the person making the "false" statements should face a penalty equal to the crime they were charging the other person with. This happens a lot in divorce cases where one side just keeps making false allegations to the police and the court. An innocent person gets destroyed and the accuser walks away smiling.

the internet hasnt changed ne thing. arrests were alwasy public knowledge. reality tv (and almost all human interaction) is based on people gossiping and talking about other people. the internet just made the gossip spread faster through computers and smart phones instead of at coffee clatches, newspapers, and water coolers at work. It seems here that the dude beat up the chick, but then she didn't want to testify or something. I feel more sorry for the people with drug habits trying to escape this awful world caught with a little drugs on them than this dude.

My comment referred to the fact that once something is out on the internet you can't just go back and delete it. IF someone is falsely accused (in any case) the company coffee talkers just forget about it in a few weeks. Type in my name on the internet and you will find a question I asked at the town meeting 5 years ago - it never goes away. So in 5 years you will see that a person was arrested but may never see that the charges were deemed false. I wasn't referring to this particular case.

This is one of the worst articles written. Without going further into the story or timeline one can not determine the extend to which the Police investigated the crime. Did the arrest occur one hour, one day, one week, one month, or a year after the crime? If not guilty why did the suspect not come out of the house and why was SWAT necessary. Nice job Monitor.

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