Chapter 594: Arrests in Criminal Cases

As used in this chapter:

I. "Arrest" is the taking of a person into custody in order that he may be forthcoming to answer for the commission of a crime.

II. "Felony" is any crime that may be punished by death or imprisonment in the state prison. Other crimes are "misdemeanors."

III. "Officer" or "peace officer" is any sheriff or deputy sheriff, mayor or city marshal, constable, police officer or watchman, member of the national guard acting under orders while in active state service ordered by the governor under RSA 110-B:6, certified border patrol agent as defined in RSA 594:26, I, or other person authorized to make arrests in a criminal case.

I. Bailiffs and supreme court security officers responsible for court security shall have the powers of arrest provided in this chapter when performing their duties relating to court security.

II. The sheriff, through the sheriff's deputies and bailiffs, shall be responsible for court security and shall be responsible for the conduct and control of detained defendants and prisoners during the time period that such defendants and prisoners are in all state courts, except for the supreme court.

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.

A peace officer may search for a dangerous weapon any person whom he is questioning or about to question as provided in RSA 594:2 whenever he reasonably believes that he might be in danger if such person possessed a dangerous weapon. If the officer finds a weapon, he may take and keep it until the completion of the questioning, when he shall either return it or arrest the person.

I. No unnecessary or unreasonable force or means of restraint may be used in detaining or arresting any person.

II. A peace officer is justified in using deadly force to effect an arrest as provided in RSA 627:5, II.

If a person has reasonable ground to believe that he is being arrested and that the arrest is being made by a peace officer, it is his duty to submit to arrest and refrain from using force or any weapon in resisting it, regardless of whether there is a legal basis for the arrest.

Every law enforcement officer who encounters a need for assistance in the execution of his office in a criminal case or emergency situation may require any person to render suitable aid. Any person who, when so required, neglects or refuses to give such aid shall be guilty of a violation.

An officer to whom a warrant for the arrest of an offender may be addressed has power to make the arrest at any time and in any place, and shall have, in any county, the same powers in relation to the process as an officer of that county.

An officer, having made an arrest under a warrant to him directed, may, if convenient, convey the prisoner through any town or county, and, in respect to such prisoner, shall have the powers of an officer of such town or county.

An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in his possession at the time of the arrest, but, if the person arrested so requests, the warrant shall be shown to him as soon as practicable.

I. An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever:

(a) The peace officer has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in the peace officer's presence; or

(b) The peace officer has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, has within the past 12 hours violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16 by committing assault, criminal trespass, criminal mischief or another criminal act, or has within the last 12 hours violated stalking provisions under RSA 633:3-a.

(c) The peace officer has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, will cause further personal injury or damage to property, or, while in the care of a medical professional on the premises of a residential care or health care facility as defined in RSA 151:2, through actual or threatened violence, interfere in the provision of health care services that a licensed medical professional has determined to be medically necessary.

II. An arrest by a peace officer without a warrant on a charge of felony is lawful whenever:

(a) A felony has actually been committed by the person arrested, regardless of the reasons which led the officer to make the arrest.

(b) The officer has reasonable ground to believe that the person arrested has committed a felony.

A peace officer making an arrest on complaints for felony, misdemeanor, or violation charges arising from the same facts or circumstances shall within 24 hours, excluding weekends and holidays or before a plea is accepted or entered in court, give notice in writing of all charges pending to the county attorney. Failure to provide such notice shall not affect the validity of the arrest or the prosecution of any charges arising from the arrests.

Any justice of any court, upon view of a breach of the peace or other transgression of the law proper for his cognizance, or if necessary for the preservation of the peace, may command any officer or other person to arrest, bring before him, and detain the offender, until complaint can be made against him.

Every officer or person, upon receipt of a command pursuant to RSA 594:11, may arrest and detain the offender. If the officer or person shall not obey such command, he shall be subject to the same penalty as for disobeying an officer.

If a lawful cause of arrest exists, the arrest will be lawful even though the officer charged the wrong offense or gave a reason that did not justify the arrest.

I. In any case in which a peace officer has probable cause to believe that a person has committed a misdemeanor or violation, the officer may issue to the person in hand a written summons in lieu of arrest. This shall not apply if the peace officer has probable cause to believe that a person has committed abuse as defined under RSA 173-B:1, I, violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16, or violated stalking provisions under RSA 633:3-a. The summons shall be in substantially the following form:

The State of New Hampshire

To ....................

You are hereby notified to appear before the .......... circuit court of the State of New Hampshire, district division, to be holden in .......... on the ..... day of .......... 20 ... at ..... o'clock in the forenoon (afternoon) to answer to a complaint (to be filed in said court) charging you with .... in violation of the laws of the State of New Hampshire. If you are charged with a class A misdemeanor or felony and you want a lawyer to represent you at the arraignment and throughout your case, but you cannot afford to hire a lawyer, you must fill out an application for court-appointed counsel and deliver it to the circuit court identified above as soon as possible. The court will appoint an attorney to represent you if your application shows that you are eligible. If you believe that you are eligible for appointed counsel, you may apply prior to your arraignment.

Hereof fail not, as you will answer your default under the penalty of the law in that behalf made and provided.

Pending appearance as described herein, you shall remain of good behavior.

Dated at ............... Name .................... the ............... day of ..... 20 .......... Title ......................... Upon failure to appear or to remain of good behavior, a warrant of arrest may issue. Any person who fails to appear in answer to such summons shall be guilty of a misdemeanor.

II. A summons may be issued after an arrest for a misdemeanor or violation in lieu of bail.

I. For the purposes of this section, an "arrest record" means a record created by law enforcement personnel to document the arrest of an individual 18 years of age or older. Arrest records are "governmental records" as defined in RSA 91-A and subject to disclosure in accordance with that chapter, with the exception noted in RSA 106-B:14.

II. Arrest records shall contain, at a minimum:

(a) The identity of the individual arrested;

(b) The identity of the arresting officer or officers unless the officer's supervisor has good cause to believe that identifying the officer would not serve the public interest;

(c) A statement as to reasons why and how the arrest was made;

(d) The alleged crime; and

(e) Whether the arrest was made pursuant to a warrant.

The officer in charge of a police station to which an arrested person is brought shall immediately secure from the prisoner, if possible, the name of the parent, nearest relative, friend or attorney with whom the prisoner may desire to consult, and shall immediately notify such relative, friend or attorney of the detention of the prisoner, when possible. Notice shall be given by telephone or messenger when practicable.

I. The officer in charge of a police station shall permit the prisoner to confer with his attorney at all reasonable times.

II. Such officer shall establish regular visiting hours during which the prisoner shall be allowed to confer with relatives and friends.

A person who violates the requirements of this subdivision is guilty of a misdemeanor.

When a peace officer makes an arrest without a warrant, either he or his superior officer may release the person arrested instead of taking him before a district or municipal court if satisfied either that there is no ground for making a criminal complaint against such person or that such person has been arrested for drunkenness and no further proceedings are necessary. A person released as above provided shall have no right to sue any peace officer on the ground that he was released without being brought before a court.

I. Every officer making an arrest or holding a person in custody under a warrant shall take the accused to the court as directed in the warrant without unreasonable delay.

II. An officer arresting a person without a warrant shall without unreasonable delay take such person to the court to answer a complaint for the offense.

I. When a person is arrested with or without a warrant, he or she may be committed to a county correctional facility, to a police station or other place provided for the detention of offenders, or otherwise detained in custody. The person shall be taken to appear before a circuit court or a superior court without unreasonable delay to answer for the offense. All persons shall appear no later than 36 hours after arrest Saturdays, Sundays, and holidays excepted.

II. Notwithstanding the provisions of paragraph I, defendants detained under RSA 173-B shall have timely access to a bail hearing by telephonic means or otherwise as determined by the circuit court or the superior court.

The request of the officer making the arrest shall be sufficient authority if accompanied by an arrest report, uniform report of crime form, or other substantiating documentation, for the superintendent of the county department of corrections, for the police station, or for any other officer or person, for keeping the person arrested in custody pursuant to RSA 594:20-a.

I. In this section, "a certified border patrol agent" means a person who:

(a) Is employed as a border patrol agent by the United States Department of Homeland Security, Customs and Border Protection;

(b) Has satisfactorily completed a course of study in New Hampshire laws and criminal procedures approved by the police standards and training council, at the expense of the agent' agency;

(c) Has been certified by the director of police standards and training pursuant to paragraph II and whose certification has not expired or been suspended or revoked; and

(d) Has taken an oath administered by the commissioner of safety or by the commissioner's designee to uphold the constitution of the state of New Hampshire.

II. The director of police standards and training may certify a border patrol agent who applies for certification if the agent satisfies the employment and study requirements listed in paragraph I. Border patrol agents certified under this section shall be exempt from regular physical fitness examinations required of state or municipal law enforcement officers. A certification under this paragraph shall automatically terminate immediately upon the agent's suspension or termination of employment from the federal agency in which he or she was employed at the time the certification occurred.

III. A certified border patrol agent may make an arrest pursuant to New Hampshire law for violation of New Hampshire laws in Coos county if the agent determines that it is necessary to do any of the following:

(a) Protect an individual in the presence of the agent from the imminent infliction of serious bodily injury, as defined in RSA 625:11, VI; or

(b) Provide immediate assistance to an individual who has suffered or is threatened with serious bodily injury, as defined in RSA 625:11, VI; or

(c) Prevent the escape of any individual whom the agent has probable cause to believe has committed a crime in the presence of the agent; or

(d) Prevent the escape of any individual whom the agent has probable cause to believe has committed a felony under New Hampshire law.

IV. A certified border patrol agent who makes an arrest under this section shall report the arrest, without delay, to the division of state police.

V. A certified border patrol agent who makes an arrest under the authority of this section shall have the same immunity from liability that a state or municipal law enforcement officer has under the laws of this state.

VI. The state of New Hampshire shall not be responsible for employment benefits, supervision, and defense of the certified border patrol agent, including when exercising authority under this section. This section is not intended to limit existing authority of federal officers under federal law or to interfere with the performance of federal duties by federal officers.