How will the &quot;stop and identify&quot; statute work in New Hampshire in this particular hypothetical? I asked this question before but it was closed. So I will try to be here more specific. I have read the stop and identify statutes wikipedia page. In this page there is written that: In 12 states (Alabama, Delaware, Illinois, Kansas, Missouri, Nebraska, New Hampshire, New York, North Dakota, Rhode Island, Utah, Wisconsin), police &quot;may demand&quot; identifying information. Of note, though, in New Hampshire for example (RSA 594:2), statutory language authorizing a 'demand' for identity does not establish a legal requirement to provide documentation of identity (ID), or even a requirement to respond in the first place. So in New Hampshire a police officer may DEMAND my identification from me, and I may simply ignore him/her without committing a crime, right? If my understanding is correct, suppose I am a gentlemen in my home in New Hampshire, and I am being harrassed by Mr. X (although I don't know his name): Mr. X is outside my door, he is calling my phone number repeatedly, he is repeatedly knocking on my door, he is repeatedly shouting my name out, he is repeatedly calling me a child molester, etc. I call the police. The police shows up. I tell the police I want to file charges for harrassment against the guy in front of me (Mr. X, but I don't yet know his name). The police asks Mr. X (still, nobody knows his name at this time) for his identification. Mr. X will repond that &quot;statutory language [...] does not establish a legal requirement to provide documentation of identity (ID)&quot;. End of it. End of my charges. Is that correct? Note this question is not a duplicate of this one, because the latter question occurred in Texas, and the answer provided there (&quot;Texas is not a state with an obligation to identify statute&quot;) does not apply here, because here we are in New Hampshire, which has such a statute.
First of all, Mr X's refusal is in no way the end of the interaction, nor of your charges. If your report of Mr X's actions gives the police probable cause, they can arrest Mr X, even if he refuses to identify, and even if they do not know his name. The only difference is that if they do not know his name, they cannot use his record, if any, in deciding whether to arrest him. If they do arrest him, they can and usually will search him. If he carries ID, they will then know his name. Even if he doesn't, he can be lawfully required to provide his legal name once he has been arrested. So End of it. End of my charges. is not at all correct. Now let us look at the actual NH laws involved. Wikipedia links to two provisions: Section 644:6 and Section 594:2. What do they actually say? Section 644:6 provides that: 644:6 Loitering or Prowling. – I. A person commits a violation if he knowingly appears at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity. Circumstances which may be considered in determining whether such alarm is warranted include, but are not limited to, when the actor: (a) Takes flight upon appearance of a law enforcement official or upon questioning by such an official. (b) Manifestly endeavors to conceal himself or any object. (c) Has in his possession tools or other property which would lead a reasonable person to believe a crime was about to be perpetrated. (d) Examines entrances to a structure which the actor has no authority or legitimate purpose to enter. II. Prior to any arrest under this section, unless flight or other circumstances make it impossible, a law enforcement official shall afford the actor the opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and give an account for his presence and conduct. Failure to identify or account for oneself, absent other circumstances, however, shall not be grounds for arrest. III. No person shall be convicted under this section if the law enforcement official did not comply with paragraph II or if it appears at trial that the explanation he gave of his conduct and purposes was true and, if believed by the law enforcement official at the time, would have dispelled the alarm. In such cases, any record of the arrest made under authority of paragraph I shall be expunged. IV. In this section, &quot;entrances&quot; means any part of a structure through which entry or egress could be made. Note first of all that Section 644:6 only applies when the person accused has appeared &quot;under circumstances that warrant alarm for the safety of persons or property&quot; more or less when the person has given a reasonable impression that s/he might be going to break in or commit some similar crime. &quot;Loitering with intent&quot; it is called in some jurisdictions. In those circumstances, a LEO must offer the accused a chance to explain his or her purpose to help dispel suspicion. That would include giving his or her name. The accused is under no obligation to give a name, or show ID. The only penalty for not doing so is that suspicion will not be dispelled, and if the officer thinks fit, the accused may be arrested. This section might well apply to the scenario in the question. Section 594:2 provides that: 594:2 Questioning and Detaining Suspects. – A peace officer may stop any person whom the officer has reason to suspect is committing, has committed, or is about to commit a crime. An officer may request the person's name and address, but the officer shall not arrest the person based solely on the person's refusal to provide such information. This also applies only when an officer has &quot;reason to suspect&quot; the accused. The section permits the officer tho &quot;request&quot; (which the officer could probably do even if this section had not been passed). But it does not impose any duty on the accused to respond, nor impose any penalty for not responding. Again the only penalty is the failure to dispel any suspicion in the officer's mind. The officer may in any case act on any reasonable suspicion or probable cause that may appear. This section might also apply to the situation in the question. Neither section really gives an officer any power or authority the officer would not otherwise have. Both authorize the officer to request name and other identifying information. Neither makes it an offense to refuse to provide such information. Neither section describes what the officer may do as a &quot;DEMAND&quot;. Whether either actually constitutes a &quot;stop and identify&quot; statue might be debated, but the statute itself is what matters, not the label attached to it. In the situation described inn the question, an officer might well request Mr X to identify himself, and explain what he is doing and why. The officer can take Mr X's response, if any, into account in deciding whether to detain Mr X for investigation, arrest him, warn him, or take other action, or take none. That is true whatever response Mr X may make, or if he ignores any request. So these sections will not greatly change what might happen, one way or another, in such a situation.
The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted.
The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not &ndash; unless you hand them the keys without protesting &ndash; and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf
The victim of domestic violence is referred to as the complaining witness. Domestic violence arrests will result in a criminal investigation. It is not up to the complaining witness to determine if charges are brought against the one who was arrested - this is up to the prosecutor. Here is a good article at Findlaw that discusses the process. If the complaining witness recants, the prosecutor may decide to drop the charges. The prosecutor may, though, decide to continue the charges and prosecute the case. The complaining witness in recanting may face charges as well - for example, for making a false police report. If the prosecutor presses the case and your husband is convicted then, yes, it will be on his record. Seeking the advice of a New York attorney who specializes in these matters is the best course of action. EDIT: Here is additional information regarding New York Criminal History Records: New York State law does specify that, unless the court orders otherwise, arrest records are sealed when criminal actions are terminated in favor of the accused - dismissed, found not guilty, etc. This is spelled out in Criminal Procedure Law 160.50. Arrest records are part of the public record until disposition of the case is completed. At New York State's Court web site, you can read about how to get criminal records of anyone - they are public record so anyone can make a request about anyone. There is a fee of $65. Records can be ordered online and the results can be emailed to you. Searches are processed by an exact match of name and date of birth. From their web site you will see that criminal cases transferred or removed to Family Court are not reported. Neither are records for people who had a single misdemeanor conviction over ten years ago or pending criminal cases categorized as Youthful Offender Eligible. Generally speaking, New York criminal cases are part of the public record and are available to anyone unless they meet certain criteria or have been sealed under New York State law. Note that sealing records doesn't mean the record goes away. It just means that the record is not available to the general public without a court order unsealing the record. Here is the link to on-line direct access to records requests: http://www.nycourts.gov/APPS/chrs/onlinedirectaccess.shtml
If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed.
I'll use California penal code 837 as an example, though most other states have similar statutes: A private person may arrest another: For a public offense committed or attempted in his presence... 839 says: Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. Generally, someone making an arrest is allowed to use &quot;reasonable force&quot; to effect the arrest. The question then becomes, is the act of interrupting a football game a public offense? Once a fan at a football game enters the field, assuming it is a violation of the license granted to the fan, they are trespassing. These fans are often drunk when performing their midfield dance so that is another public offense for which they could be arrested. Once arrested, the interloper must be turned over as soon as possible to a magistrate or peace officer. The person making the arrest is always subject to being sued. It is a question for a trier of fact to determine if unreasonable force was used in effecting the arrest. My guess is that in most of these cases security simply ejects the exuberant fan from the premises and the fan never looks back. If a lawsuit were to be filed it would be based on unreasonable force being applied during the arrest. California penal code 240 defines assault as &quot;an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.&quot; Certainly, one could be charged with assault in effecting a citizen's or private arrest but it would go back to the definition of reasonable force and what force was necessary to effect the arrest. If someone resisted arrest I think it more likely that that person could face an assault charge.
There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved.
1: What's the correct process to get a restraining order? The police aren't involved in the formal process, although sometimes people go to the police and are told that they have to go to a judge instead. The aggrieved plaintiff presents an ex parte affidavit or makes statement in person under oath to a duty judge (who often asks clarifying questions). If this statements states a basis for a protection order one issues with a prompt return date (a week or two). At the return date the order either becomes final if the defendant doesn't show up, is vacated if the plaintiff doesn't show up, or is tried in an evidentiary hearing if both show up. Of course, a court order is ultimately just a piece of paper and there is no legal recourse against the government if they don't successfully stop the person restrained from doing something. Also enforcement of restraining orders was a lot more lax in 1987 than it is today, and men asking for restraining orders were taken less seriously then, than they are now, by most judges. 2: Can Dan keep his adultery secret during that process? Not really. In the initial ex parte hearing, Dan can probably tell the story artfully in a way that hides the adultery, but in the adversarial hearing, if there is one, the other side (or their lawyer) can ask him under oath about the affair and he has to answer truthfully in a public court hearing setting. 3: Is it plausible that Dan's family and friends don't learn about that process? Yes. Unless he's famous enough to make the newspapers (which in a decent sized city is pretty famous), and if he initiates the process, the only person who gets formal notice before the order issues is the court, and if the court issues the initial order, the only person who gets notice is the defendant. If Dan doesn't call family or friends as witnesses and don't tell his workplace why he's at court, nobody is told. It isn't a secret. It's a matter of public record that could be subsequently discovered at any time. But there is no active means of notification of friends and family in the short term. Realistically, Dan might ask a cop or a lawyer what to do, get accurate or inaccurate information, and decide not to pursue it for fear of creating sworn proof of his affair at a hearing. Cops love to provide legal advice that they aren't qualified to dispense. Dan's concern is particularly relevant because this happened in New York State in 1987 when New York State didn't have no fault divorce at the time, and the outcome of divorce proceedings on the merits for property division and alimony and custody would have been heavily influenced by marital fault in the divorce case. Revealing an affair under oath as he might have been required to do at a hearing would have crushed him in a subsequent divorce outcome if his wife found out and decided to divorce him.