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STATE of NEW HAMPSHIRE JOHN H. LYNCH GOVERNOR Raymond S. Burton John D. Shea Beverly A. Hollingworth Raymond J. Wieczorek Debo

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STATE of NEW HAMPSHIRE JOHN H. LYNCH GOVERNOR Raymond S. Burton John D. Shea Beverly A. Hollingworth Raymond J. Wieczorek Debo STATE OF NEW HAMPSHIRE JOHN H. LYNCH GOVERNOR Raymond S. Burton John D. Shea Beverly A. Hollingworth Raymond J. Wieczorek Deborah Pignatelli Executive Councilors Department of Justice Kelly A. Ayotte Attorney General June 2008 TABLE OF CONTENTS I. THE LAW REGARDING ON-THE-STREET ENCOUNTERS AND INVESTIGATIVE DETENTIONS...................................................................................................1 A. Introduction.........................................................................................1 B. Initial Encounter .................................................................................1 C. When An Encounter Constitutes A Seizure........................................2 1. Factors Relevant In Determining Whether A Person Has Been Seized .............................................................................2 2. Submission Is Not Necessary For A Seizure To Occur ..........3 D. Investigative Or Terry Stops...............................................................4 1. An Investigative Stop Must Be Supported By Reasonable Suspicion..................................................................................4 2. General Factors That May Support Reasonable Suspicion To Justify A Terry Stop...........................................................5 3. Specific Factors That May Support Reasonable Suspicion To Justify A Terry Stop...........................................................6 a. Officer’s Personal Knowledge And Observations .......6 b. Officer’s Training And Experience..............................6 c. Information Other Than Personal Knowledge Or Observations .................................................................7 E. Permissible Law Enforcement Activities During An Investigative Stop ... ................................................................................................11 1. Pat-Down Search ...................................................................11 2. Questioning The Person.........................................................12 3. Searching The Interior Of A Motor Vehicle .........................12 4. Seizing Contraband Or Incriminating Evidence....................13 5. Requesting Identification.......................................................13 6. Use Of Force..........................................................................14 7. Miranda Warnings .................................................................14 8. Asking Occupants To Exit The Vehicle During A Traffic Stop ........................................................................................14 9. Canine Sniffs .........................................................................15 F. When An Investigative Stop Evolves Into An Unlawful Detention...........................................................................................15 G. Roadway Checkpoints ......................................................................16 II. THE LAW OF ARREST...................................................................................18 A. Introduction.......................................................................................18 B. What Constitutes An Arrest? ............................................................18 i Issued on: 7/15/2008 C. Factors Considered In Determining If And When An Arrest Has Taken Place.......................................................................................20 D. The Probable Cause Requirement ....................................................21 E. Permis sible Sources Of Information To Support Probable Cause ...22 F. Executing An Arrest .........................................................................22 1. Use Of Force..........................................................................22 2. Requesting Assistance From Civilians..................................23 3. Conducting An Arrest In A Third Party’s Home ..................23 4. The “Knock And Announce” Rule........................................24 5. Issuing A Summons In Lieu Of Placing Someone Under Arrest .....................................................................................24 G. Procedure After Arrest......................................................................24 1. Notification To Family/Friend/Attorney Of Arrestee ...........24 2. Consultation With Attorney And/Or Family Members.........25 3. Bail.........................................................................................25 H. Arrest Of Non-US Citizens...............................................................26 I. Detaining Juveniles...........................................................................27 J. Protective Custody............................................................................28 1. Mentally Ill Individuals .........................................................28 2. Intoxicated And Incapacitated Individuals............................29 a. Intoxicated Individuals ...............................................30 b. Incapacitated Individuals............................................30 3. Abused And Neglected Children...........................................31 K. Warrantless Arrests...........................................................................31 1. Misdemeanor/Violation Level Offenses................................32 2. Felony-Level Offenses...........................................................32 3. Arrests Within A Dwelling....................................................33 a. Exigent Circumstances ...............................................33 b. Hot Pursuit..................................................................34 L. Cross-Border Warrantless Arrests ....................................................34 M. Arrest Pursuant To A Warrant..........................................................35 1. Authority To Issue A Warrant ...............................................36 2. Application For An Arrest Warrant.......................................36 3. Execution Of The Warrant.....................................................38 III. THE LAW OF INTERROGATION .....................................................................39 A. Introduction.......................................................................................39 B. Voluntariness Of A Suspect’s Statement..........................................39 1. Characteristics Of The Suspect..............................................41 2. Character Of The Interview...................................................41 3. Express Or Implied Promises ................................................41 ii Issued on: 7/15/2008 C. When Miranda Warnings Are Required...........................................42 1. Definition Of Custody ...........................................................43 2. Definition Of Interrogation....................................................44 3. The Public Safety Exception .................................................47 4. The Application Of Miranda In DWI Stops ..........................48 D. Miranda Advisements.......................................................................48 E. Waiver Of Miranda Rights ...............................................................49 1. “Knowing And Intelligent” Waivers .....................................51 F. Invocation Of The Right To Counsel ...............................................52 G. Invocation Of The Right To Remain Silent......................................54 H. Recording Of Custodial Interrogation ..............................................55 I. Interrogation Of Juveniles ................................................................55 IV. THE LAW OF WARRANTLESS SEARCHES .....................................................58 A. Introduction.......................................................................................58 B. Definition Of A Search.....................................................................59 1. Situations In Which There Is A Reasonable Expectation Of Privacy..............................................................................60 2. Situations In Which There Is No Reasonable Expectation Of Privacy..............................................................................61 C. Exceptions To The Search Warrant Requirement ............................63 1. Consent Searches...................................................................63 a. Voluntariness Of Consent...........................................64 b. Express Or Implied Consent.......................................65 c. Authority To Consent .................................................66 d. Doctrine Of Apparent Authority To Consent.............67 e. The Scope Of A Search Based On Consent ...............68 2. Plain View Searches ..............................................................69 a. Introduction ................................................................69 b. An Officer Must View The Item From A Place Where He Or She Is Lawfully Entitled To Be ...........70 c. The Discovery Of Incriminating Evidence Must Be Inadvertent.............................................................71 d. The Incriminating Nature Of The Evidence Must Be Immediately Apparent...........................................71 3. Probable Cause And Exigent Circumstances ........................72 4. The “Community Caretaking” Or “Emergency Aid” Exception ...............................................................................73 5. Automobiles...........................................................................75
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