How often are requests for search warrants declined? Before law enforcement can search a property, they need to obtain a search warrant (with some exceptions). That is, they request the warrant from a judge/magistrate/court, that then decides whether to grant the warrant or not. It is clear that this system is intended to prevent arbitrary searches, as the judge might simply decline a warrant request if there is no reasonable justification behind it. How often does this actually happen? I've never heard of a warrant request being declined by a judge, but surely there must be statistics about it.
Disclaimer: there are whole sections of criminal law courses that deal with this issue and the various laws and precedents that have shaped american jurisprudence relating to right of privacy, expectation of privacy, and search and seizure. So, this is more of a primer than a comprehensive answer. That being said, the Fourth Amendment, which protects the people from unreasonable search and seizure by the government, dictates that there must be probable cause for a search warrant to issue. However, in addition to the restrictions that are imposed by the Fourth Amendment, several states’ constitutions, as well as a variety of state and federal statutes, rules of procedure, and law court rulings interpret these edicts further, limiting the process for obtaining a search warrant (a state can add additional safeguards, or impose more stringent requirements, but not less than the 4th amendment demands). On the federal level alone, the laws on search and seizure are also limited in scope by sections appearing in Title 18, Part II, Chapter 205 – Searches and Seizures. 18 U.S.C. § 3101-18. Federal warrants are further governed by Rule 41 of the Federal Rules of Criminal Procedure. Only Judges and magistrates may issue search warrants. To obtain a warrant, law enforcement officers must show that there is probable cause (i.e. grounds) that search is legally justified. Officers must support this showing with sworn statements (affidavits) under oath, and must describe in particularity the place they will search and the items they will seize. Judges must consider the totality of the circumstances when deciding whether or not to issue the warrant. When issuing a search warrant, the judge may restrict how and when the police conduct the search. Police officers (a broad term I'm using for ease of discussion to include all manner of state and federal investigators operating under color of law) seeking a warrant do not need to show that the people being searched (or those whose property is being searched) actually, or even probably, committed the crime(s) in question. Rather, officers merely need to show probable cause exists to show that the evidence sought-after is likely there and upon discovery may implicate some person or persons in criminal activity (that has been committed). A landmark case that resulted in some reforms is Zurcher v. Stanford Daily, 436 U.S. 547 (1978), in which the Supreme Court opined that a search conducted by the police at a student newspaper, where the newspaper was not implicated or connected to any criminal activity, was a legal search under the Fourth Amendment, because the police suspected it had photographic evidence of the identities of demonstrators who assaulted police officers. Afterward, however, some jurisdictions responded by passing laws restricting or forbidding these kinds of searches - so again, what stands as acceptable procedure is not static. While you may not often hear of requests for warrants being denied, it does happen if there is insufficient PC pled in the affidavit; General unawareness is not surprising as it is not something often made public, although there are instances. Most officers know when they have enough for a warrant and know how to adequately swear out an affidavit so that PC is present enough for the judge to sign the warrant in good faith. However, some Judges are more stringent and demanding than others with regard to how the PC was obtained,the scope of the warrant under those facts, etc. Certainly, not every application is granted. Cornell has a great primer of this issue and you can find article when application for a warrant was denied...especially in higher profile investigations. https://www.law.cornell.edu/wex/search_warrant
If you comply without protest, this will be taken as consent to a search, and make anything found admissible. One can verbally object. The ACLU suggests the form &quot;I do not consent to searches&quot; to any request to search your car, your house, your person or any other property of yours or under your control. There is no need to give any reason for your refusal. However, one is required to follow any &quot;lawful orders&quot; given by police officer during a traffic or pedestrian stop.[1] Failure to follow lawful orders may well be a separate crime. Even if the lawfulness is suspect, it is usually better to comply and challenge the order later, in court. One might make a second objection, such as &quot;I don't see that you have probable cause for a search, and I do not give consent. Are you ordering me to permit a search?&quot; If the officer clearly orders you to open the trunk, one might place the keys in reach of the officer, while not opening the trunk oneself. That might help establish that there was no consent to the search, and require probable cause to be established before anything found could be used in a trial. One might also repeat, as the officer opens the trunk &quot;I am not consenting to any search.&quot; If it is possible for any person present to record video without obstructing the officer(s) that might hrlp to establish the absence of consent and other relevant facts, later. People in general have a right to make such recordings, but not to obstruct or interfere with police activity. Duty to Obey The Washington Post in an opinion article dated July 23, 2015 &quot;Sandra Bland and the ‘lawful order’ problem&quot; wrote: The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter. The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you. In the case of Oregon v Rose Mary ILLIG-RENN, 42 P.3d 62 (2006) The Supreme Court of Oregon held that ORS 162.247(1)(b), a statute that makes it a crime to &quot;refuse[] to obey a lawful order by [a] peace officer.&quot; is constructional against challenges under the Oregon and US Federal constitutions. Sources [1]: Virginia Code section 18.2-464. Failure to obey order of conservator of the peace Virginia Code Section § 18.2-463. Refusal to aid officer in execution of his office. Florida Statutes 316.072(3) &quot;*OBEDIENCE TO POLICE AND FIRE DEPARTMENT OFFICIALS.—It is unlawful and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer, traffic crash investigation officer as described in s. 316.640, traffic infraction enforcement officer as described in s. 316.640, or member of the fire department at the scene of a fire, rescue operation, or other emergency. *&quot; (Oregon) ORS 162.247(1)(b) Interfering with a peace officer or parole and probation officer A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer ... Refuses to obey a lawful order by the peace officer or parole and probation officer. California Vehicle Code - VEH § 2800 (a) It is unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, when that peace officer is in uniform and is performing duties pursuant to any of the provisions of this code, or to refuse to submit to a lawful inspection pursuant to this code. North Carolina § 20-114.1. Willful failure to obey law-enforcement or traffic-control officer (a) No person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer or traffic-control officer invested by law with authority to direct, control or regulate traffic, which order or direction related to the control of traffic.
First, no, given the wording of the question: &quot;by demanding identity first&quot;. US courts have never held that citizens must immediately comply with non-emergency orders free of back-talk. Let's assume that the refusal is conditional: &quot;I won't comply until you show me your ID&quot;. In most (?) jurisdictions, there is no obligation imposed on police to show ID, though I am excluding home searches. There is a policy requirement in Seattle (§7) that Employees may use a Department-issued business card that contains their name and serial number to satisfy the request for the information. Employees will also show their department identification card and badge (sworn) when specifically requested to do so. Exception: Employees are not required to immediately identify themselves if: An investigation is jeopardized A police function is hindered There is a safety consideration Massachusetts has a law saying that &quot;Such identification card shall be carried on the officer's person and shall be exhibited upon lawful request for purposes of identification&quot;. In the domain of search and seizure law, the court reasoned in Doornbos v. Chicago, regarding a seizure by plainclothes police that Absent reasonable grounds to think that identification would present an unusual danger, it is generally not a reasonable tactic for plainclothes officers to fail to identify themselves when conducting a stop. The tactic provokes panic and hostility from confused civilians who have no way of knowing that the stranger who seeks to detain them is an officer... it is usually unreasonable for a plainclothes officer to fail to identify himself when conducting a stop or frisk As you can see, this identification requirement is tied to constitutional search and seizure limits for which there is voluminous case law regarding what is &quot;reasonable&quot;. The scenario that you propose is fairly far from the kind of case identified in Doornbos: is the order from a uniformed officer in a police vehicle? That seems to be what you're describing. Now we must inquire as to the legality of the order. Picking on Washington state law, RCW 46.61.015 requires that No person shall willfully fail or refuse to comply with any lawful order or direction of any duly authorized flagger or any police officer or firefighter invested by law with authority to direct, control, or regulate traffic. RCW 46.61.021 requires a person driving to stop for a LEO, and to identify himself: failure to comply is a misdemeanor. There is no statutory provision that a person can refuse to obey these (or similar sections in the motor vehicle title) until the officer provides ID. A police officer (in Washington: and I suspect any other state) does not have unrestricted authority to give people orders, there are specific statutory circumstances giving police the power to order people to do things. Obstructing a police officer is a crime, but obstructing an officer is where one &quot;willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties&quot;, and not &quot;doesn't cooperate&quot;. There is a provision, RCW 9a.76.030 where A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he or she knows to be a peace officer, he or she unreasonably refuses or fails to summon aid for such peace officer and the &quot;knows to be a peace officer&quot; clause implies either that the officer is uniformed, or has provided identification. Finally, we have &quot;failure to disperse&quot; when a person congregates with a group of three or more other persons and there are acts of conduct within that group which create a substantial risk of causing injury to any person, or substantial harm to property; and (b) He or she refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in enforcing or executing the law. These laws are attuned to emergency needs, thus outside the penumbra of your scenario. In short, the primary question must be, when can police lawfully give you an order that you must obey, which narrows the matter down to traffic-related matters. The seizure must be reasonable: it is reasonable to require a person to stop for a uniformed officer. Reasonability does not entail that all officers must produce ID when effecting a seizure, but this may be the case with plain-clothes officers. Even when in Seattle with a departmental policy requiring officers to identify themselves, an officer's failure to identify does not render the seizure illegal.
Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the &quot;Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?&quot; comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later.
More generally, but subject to the specifics of state law, a person may be required to assist a police officer. For instance in Alabama A person commits the crime of refusing to aid a peace officer if, upon command by a peace officer identified to him as such, he fails or refuses to aid such peace officer in: (1) Effecting or securing a lawful arrest; or (2) Preventing the commission by another person of any offense. In Washington, the obligations is much narrower: A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he or she knows to be a peace officer, he or she unreasonably refuses or fails to summon aid for such peace officer. Washington seems to be in the minority, compared to Alabama.
Contempt of court is still a remedy, because fines can be issued. The mayor or chief of police can still be arrested and held (enforcement would be via the county court bailiff or sheriff, for example), and the city can be fined. It is possible but not normal to arrest government personnel for disobeying a court order.
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.
On the contrary there are hundreds of federal statutes that sanction civil forfeiture, as well as 18 U.S.C. § 983 (and other subsections inter alia) that governs civil forfeiture. What you seem to be more concerned with is the judicial oversight and regulations around civil forfeiture. The burden of proof varies between, and within, states - in some, prima facie/probable cause is all that is required, in others, a preponderance of evidence, or clear and convincing evidence is required. Just three states require proof beyond a reasonable doubt and civil forfeiture is only illegal in New Mexico. Civil forfeiture is subject to judicial review: a list of notable cases in civil forfeiture is available on Wikipedia. Here's some of the more interestingly-named ones: Marcus v. Search Warrant One 1958 Plymouth Sedan v. Pennsylvania Marcus v. Search Warrant held that the search and seizure procedures in that case lacked safeguards for due process, freedom of speech, and freedom of press. One 1958 Plymouth Sedan v. Pennsylvania held because the vehicle was searched without a warrant, and the untaxed liquor found thereby was used to invoke the forfeiture, the forfeiture was illegal (the Fourth Amendment protects against unreasonable searches and seizures). So, what is the legal framework? Broadly speaking, 18 U.S.C 983, as well as state legislation. What recourse is there? Judicial review. However, the procedures vary between jurisdictions.