NH DIVISION OF LIQUOR ENFORCEMENT AND LICENSING

Transcription

1 NH DIVISION OF LIQUOR ENFORCEMENT AND LICENSING ADMINISTRATION & OPERATIONS MANUAL CHAPTER: O-130 SUBJECT: Arrest Procedures REVISED: February 10, 2010 EFFECTIVE DATE: August 14, 2009 DISTRIBUTION: Sworn Personnel APPROVED: Director Eddie Edwards I. Discussion a. The purpose of this policy is to set forth uniform and lawful procedures, which govern the methods by which members of the Division of Liquor Enforcement and Licensing effectuate arrests with and without a warrant. b. An arrest is defined as the taking of a person into custody in order that he/she may be forthcoming to answer for the commission of a crime (RSA 594:1). The arresting Investigator must have lawful authority to make an arrest and must exercise that authority in a lawful manner. To constitute an arrest, there must exist intent on the part of the arresting Investigator to take the person into custody and a corresponding understanding by the person arrested that he is in custody. Only sworn Law Enforcement Investigators shall have the authority to serve criminal process or exercise the power of arrest. The test for determining the moment of arrest is whether, under all the circumstances, a reasonable person would believe that he is not free to leave. c. In addition to having lawful authority, an Investigator must also have probable cause to make an arrest. "Probable cause" means that, based upon all the circumstances and facts within the Investigator's knowledge, and of which he has reasonable trustworthy information, there is sufficient evidence to warrant a reasonable and prudent person to believe that a person has committed, is committing or is attempting to commit a crime. The evidence required to make an arrest is more than suspicion, but less than that needed to make a conviction. d. It should always be recognized that there is no such thing as a "routine" arrest. Because of the unpredictability of human behavior, there is a potential element of danger in every arrest, and all Investigators must guard against this possibility. Life-threatening struggles have resulted from what appeared to be a "simple" arrest. e. It is the policy of the Division to recognize that, as the power to arrest deprives a person O-130: 1

2 of liberty and freedom, it is one of the most serious responsibilities of a Investigator and whenever possible should be made with a valid arrest warrant. All constitutional and statutory rights will be afforded to an arrested person at the time of arrest and immediately thereafter. f. Investigators derive their arrest powers under the provisions of RSA 179:59. Arrest powers, as defined by the statute, give Investigators primary responsibility to enforce laws under Title XIII either in cooperation with, or independently of, other law enforcement agencies. The statute also provides that Investigators have the powers of sheriff in any county with reference to all laws. RSA 179:59 gives Investigators the power to arrest, or enforce laws found outside Title XIII. g. All Investigators shall issue a summons in lieu of arrest, whenever feasible. While Investigators of the Division have the power to arrest individuals for crimes outside Title XIII, it is the primary mission of the Division to enforce laws relating to alcoholic beverages. Arrests made outside the provisions of Title XIII shall be confined to crimes committed in the presence of the Investigator, unless the crime is directly related to an investigation initiated under Title XIII. h. Based on the development of probable cause Investigators may: i. Request a police officer from the town, deputy sheriff, or trooper from State Police if the community has a population less than 3,000, and pass on probable cause. (RSA 106-B:15) ii. Request a police officer from the city or town, or a deputy sheriff, if the town has a population of 3,000 or more, and pass on probable cause. (RSA 48: NH 125 and RSA 105:3 107 NH 1) i. In all cases involving an arrest the Investigator shall file an IMC Arrest Report electronically. If the Investigator passes on probable cause to another police agency, the Investigator shall file an IMC Investigation Report providing the observations and the facts and circumstances leading to the development of probable cause. (refer to policy # A-121 Report Writing Procedures) II. Procedures a. Arrest With A Warrant i. An arrest warrant is a document issued in the name of a legal authority and directed to Investigators authorized to serve criminal process, commanding them to take an individual into custody. Before a warrant is issued, an Investigator must have probable cause to believe that a crime has been committed and that the person sought to be arrested committed it. ii. Before an arrest warrant is issued, the following information must be provided: 1. The name, or a sufficient description, of the person to be arrested, must appear in the arrest warrant. So-called "John Doe" warrants, which do O-130: 2

3 not contain a sufficient description, are illegal. 2. An affidavit will accompany the arrest warrant setting forth the facts, which establish probable cause for the arrest. 3. A criminal complaint will be attached to the warrant and affidavit. Whenever possible, a supervisor should review all the paperwork before an arrest warrant is issued. iii. Unlike a search warrant that can only be issued by a judge, an arrest warrant may also be issued by a neutral and detached justice of the peace. All felony warrants will be signed by a judge, and all misdemeanor warrants should be signed by a justice of the peace who is not a member of this department. iv. A justice of the peace who is a member of this department can be utilized to sign a criminal complaint that is completed by an Investigator of this agency. v. Service of an arrest warrant should be made as promptly as possible. An arrest with a warrant may be made at any time and in any place throughout the state. The local authorities shall be notified and requested to affect the arrest. vi. If a warrant is in existence, an Investigator does NOT have to have it in possession to effectuate an arrest (RSA 594:9). In the event a person requests to see the warrant, it will be shown to the person as soon as practical. vii. An Investigator may enter a suspect's home and arrest him without a search warrant, provided there is probable cause to believe that the person is there and a valid arrest warrant exists for his arrest. viii. An Investigator may NOT enter a third party's home to make an arrest with an arrest warrant even if there is probable cause to believe that the person is there unless: 1. The resident gives the Investigator consent to enter the residence. 2. The Investigator has a search warrant to search the premises for the suspect. 3. Exigent circumstances preclude the Investigator from obtaining a search warrant. ix. An Investigator should knock; identify himself as an Investigator and demand entry before entering a dwelling to effectuate an arrest. Whenever possible, the person arrested should be EXPRESSLY informed of that fact. x. Bench warrants issued by a District Court judge do not need to be accompanied by an affidavit or complaint since the substance of the charge is present in the warrant itself. The same procedures for service apply to bench warrants. O-130: 3

4 xi. After a person has been apprehended, the ORIGINAL warrant will be signed and attached to the police reports. b. Arrest Without A Warrant i. An arrest without a warrant merits close examination because of the subjective factors involved. Defense attorneys will be more likely to scrutinize an arrest made without a warrant. Also, if an unlawful arrest is made, any evidence seized as a result of the arrest will be declared inadmissible. ii. Pursuant to RSA 594:10, an arrest warrant is required except in the following situations: 1. The arresting Investigator has probable cause to believe that the person has committed or is committing a felony. In the case of a felony, a warrantless arrest may be made in a public place if there is probable cause. iii. A person's home should not be entered without a felony arrest warrant, absent exigent circumstances or valid consent. If there is time to get an arrest warrant, GET ONE. iv. The arresting Investigator has probable cause to believe that a misdemeanor or a violation has occurred in his presence. v. The arresting Investigator has probable cause to believe that a misdemeanor or a violation has occurred and that one of the following statutory exceptions to the warrant requirement exists: 1. An Investigator has probable cause to believe that the person has "abused" a family or household member as defined under the Domestic Violence statute within the past twelve hours (RSA 173-B; 594:10). 2. An Investigator has probable cause to believe that the person, unless immediately arrested, will destroy or conceal evidence, cause FURTHER personal injury or property damage, or not be apprehended. 3. An Investigator has probable cause to believe that a person involved in a traffic accident has violated the provisions of RSA 265:82 or265:82-a (RSA 265:83 dealing with DWI laws). 4. All Investigators should be able to point to specific factors justifying an arrest without a warrant. Probable cause requires more than mere suspicion but less than that required to secure a conviction. Of great importance is the totality of the circumstances surrounding the arrest. The following factors may be used to establish probable cause: a. Direct observations by the Investigators. Did they see a crime being committed? O-130: 4

5 b. Knowledge of a prior criminal record or bad reputation of the person to be arrested. c. Flight. If an Investigator has a reasonable suspicion for a stop and the person flees, flight elevates that suspicion to probable cause. d. Evasive answers and/or conflicting stories. Did they receive prompt and direct replies to questions, or did the person appear vague and confused? e. Experience of the Investigator in similar situations. f. Time of day or night. g. Reliable hearsay. Did they receive information from other sources and were they certain of the reliability of such sources? h. Statements from other Investigators. An Investigator making an arrest need not himself have probable cause as long as he relies on information from another Investigator who DOES have probable cause. i. Statements from informants. These are closely scrutinized when used to establish probable cause. An Investigator must be able to show the reliability of the informant and the information being provided. Steps should be taken to corroborate all information received for the purpose of establishing probable cause. c. Arrest On A Warrant From Another Jurisdiction i. A valid arrest warrant issued by any law enforcement agency within the State of New Hampshire may be effectuated regardless of the charge alleged. ii. Whenever possible, a copy of the warrant and associated paperwork should be obtained prior to effectuating the arrest. In any event, VERIFICATION that a warrant exists MUST be made prior to effectuating an arrest! iii. Upon arrest for a felony, misdemeanor or bench warrant for another jurisdiction, the following procedures will be adhered to: 1. Transportation to the station. 2. An arrest report completed. 3. A case number assigned. 4. ID photograph taken. O-130: 5

6 5. Single set of fingerprints taken. 6. Arrangements for the transfer of custody to the originating agency if necessary. iv. If a warrant is from a law enforcement agency outside of the State of New Hampshire, an arrest will be effectuated only if it is a FELONY. The following procedures will be adhered to: 1. The supervisor in charge will be notified. 2. The supervisor in charge or his designee will contact the originating agency to verify the existence of the warrant and its validity. Computer/teletype verification is preferred. 3. The supervisor in charge or his designee will ascertain if the originating agency will extradite. 4. The supervisor in charge or his designee will request that a copy of the warrant and other associated paperwork be forwarded to this department. 5. While this information is being obtained, the Investigator may detain the person for a reasonable period of time. 6. Upon confirmation, the person will be arrested as a fugitive from justice. All paperwork will then be forwarded to the prosecutor for review. v. In the event an agency outside of the State of New Hampshire makes an inquiry about a warrant issued from this department, the following procedures will be adhered to: 1. This department will NOT re-indict unless the charge is a felony. 2. If a felony, this department will not re-indict outside of the New England States without authority from the County Attorney. 3. If confirmation is requested, this department will send a teletype to the requesting agency through NH State Police Headquarters. 4. This department will obtain the name of a daytime contact person, his telephone number and a time to contact the person from the requesting agency. 5. The requesting agency will be advised that the rendition Investigator will contact them during the day. 6. Under no circumstances will warrants be mailed or faxed to an out-ofstate agency. O-130: 6

7 d. Officer Safety 7. The supervisor in charge will be notified. i. An arrest should never be made to vent personal feelings or to show authority. ii. An arrest should never be made as a substitute for resolving a problem when less severe methods are available. iii. Upon arrest, an Investigator should avoid unnecessary conversation. All instructions or directions should be given in a clear, concise and COURTEOUS manner. iv. An arresting Investigator MUST identify himself as a Investigator and whenever possible, the person arrested should be EXPRESSLY informed of that fact. v. Arresting Investigators should not act in a careless or routine manner, but instead, take all necessary steps to insure the safety of themselves and others. Such steps should include, but are not limited to, the following: 1. Obtaining assistance when necessary either before or after the arrest. This is particularly advisable when: a. There is more than one person being arrested. b. A dangerous crime is involved, for example, a felony of a serious nature. c. Prior experience has shown the need for assistance in similar situations. 2. Searching for and seizing any instruments capable of inflicting serious bodily injury or death. 3. Making a search of the area within the immediate reach and control of the person arrested. Investigators are referred to the policy on Search and Seizure. vi. Force should only be used when there is resistance or a reasonable certainty of resistance. The amount of force will be restricted to that which is reasonable, necessary and proper under the circumstances. vii. Upon arrest, it is the responsibility of the arresting Investigator to insure that the prisoner does not injure himself, escape or dispose of evidence. e. Off-Duty Arrests i. Off-duty Investigators may be faced with a situation involving criminal conduct that they are neither equipped nor prepared to handle in the same manner as if O-130: 7

8 they were on duty. As such, off-duty arrests are not encouraged. ii. Off-duty arrests will be permitted within the legal jurisdiction of this agency in the following situations: 1. When there is an immediate need in order to prevent a crime from occurring or to apprehend a subject. 2. When the Investigator has in his possession appropriate police identification. 3. When there is a likelihood that the delay posed by the calling and arrival of on-duty personnel, would allow further criminal activity or escalate the situation to a higher degree or seriousness. iii. When on/off-duty, Investigators are not encouraged to enforce minor traffic violations (ex. parking). iv. Investigators should refrain from making arrests in situations in which they are "personally involved". This means that the Investigator was involved with the subject in a non-criminal dispute or other matter, which has escalated to the point of a crime being committed. In such a situation, on-duty personnel will be used to assess the situation. An exception is when the Investigator is himself a victim. v. It is the responsibility of all members to be alert to suspected or observed criminal activity and report such activity to the department. vi. When an off-duty arrest becomes necessary, the off-duty Investigator will abide by all departmental policies and procedures. An arrest report will be made and reasons for the arrest will be noted in said report. vii. While engaged in off-duty employment of a non-police nature, Investigators will be prohibited from making arrests that are simply in furtherance of the private employer. f. Summons In Lieu Of Arrest i. RSA 594:14 states that in any case in which an Investigator would be authorized to make an arrest for a misdemeanor or a violation without a warrant, a summons can be issued in lieu of an arrest. However, it is expected that Investigators of this department will make physical arrests in the following cases: 1. Disorderly Conduct (V) or (M). 2. Reckless Driving (V). 3. Operating After Suspension (V) or (M). O-130: 8

9 4. Unlawful Possession of Alcohol by a Minor (V). 5. Transportation of Alcohol by a Minor (V). 6. Driving Under the Influence. ii. After an arrest has been made, a person can be released with a summons to appear in court at a given date and time in lieu of setting bail. This will only be done under circumstances which may include: 1. No Bail Commissioner is available. 2. Individual is from the local area with a confirmed residency status. 3. Otherwise minor offense iii. All summonses shall have a court date consistent with the published arraignment calendar. g. Prosecution i. Complaints and warrants shall be submitted to the court in advance of the arraignment date as the court directs and the Investigator shall be represented at arraignment in person, by a supervisor, or by the police or public prosecutor in the particular jurisdiction. The prosecutor shall be furnished with a copy of the offense report and a recommendation for sentencing or continuance. The Investigator shall determine the outcome of the initial arraignment and make arrangements for prosecution of continued or contested cases. Should the defendant fail to appear or default on fines assessed by the court, the procedures for the court having jurisdiction shall be followed. ii. In the case of an appeal, the Investigator shall furnish the County Attorney of the County where the appeal is to be heard, a copy of the offense reports and inform the County Attorney of the names, addresses and telephone numbers of all witnesses. iii. In instances of contested cases, the Investigator will contact his/her immediate supervisor for guidance and consultation. They will further consult their immediate supervisor prior to a case being nolle prossed or reduction of charges. If a supervisor cannot be consulted the Investigator will use their discretion to resolve the case keeping in mind what is in the best interest to the parties involved. iv. No Investigator shall participate in a cooperative investigation, surveillance, raid or arrest in conjunction with local or state police units without first obtaining the approval of the Director of Enforcement & Licensing or his designee. O-130: 9

10 v. No felony shall be submitted to a County Attorney without authorization from the Director or his designee. O-130: 10