The Fourth Amendment’s prohibition against unreasonable searches and seizures of “persons, houses, papers and effects” by government is one of the bulwarks of our free society. The amendment goes on to say that “Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be searched.”

Probable cause, however, like beauty, is in the eye of the beholder. Reasonable people don’t always agree upon just what constitutes probable cause. Nor, the U.S. Supreme Court has ruled, can a precise definition of probable cause be applicable in every case exist. Determining probable cause will always be a balancing act between the need to protect the public from potential harm and the right of citizens to be free of arrest on unsubstantiated charges. For that reason, citizens and law enforcement alike should welcome the state Supreme Court’s upcoming consideration of Lahm v. Farrington. Its decision could add clarity to the law, improve police practices and protect citizens.

The case involves a man who claims he was unfairly arrested and detained on sexual assault charges because the Tilton police failed to adequately investigate the claims of a witness whose truthfulness was later called into question. Based on witness testimony later determined to be inadequate to show probable cause, Kenneth Lahm was arrested, removed from his home by a SWAT team and held in jail over a weekend in 2008. The arrest, Lahm contends, harmed his reputation and cost him legal fees. It could have been avoided, Lahm’s lawyer said, had the police made a minimal attempt to verify the alleged victim’s story.

Some see the case as an attempt to require the police to either go beyond probable cause and determine facts prior to an arrest or risk being sued for negligence. Lose the case, Assistant Senior Attorney General Stephen Fuller argues, and “the ability of the state to protect its citizens, particularly in the domestic violence arena will be eviscerated.” Others in law enforcement share that view, one we believe is a bit overwrought.

In an interview, University of New Hampshire School of Law professor Albert Scherr put the dispute in the proper perspective: “What that arrest means is that person may have been put in jail, they may have lost their job, they have been kicked out of school. So the consequences of being arrested are serious enough that we want police to spend the time and really do the work.”

Most police departments, especially those in cities like Concord, do just that — before arresting someone. That’s true even in cases involving domestic violence, which, given the harm that could occur if an abuser and victim aren’t separated, justify a more expansive view of probable cause. Every attempt to discern corroborating or exonerating evidence is made, the officer’s experience and observational skills come into play, and there is prompt oversight over his or her decision to arrest. The law gives the police force’s watch commander the power to “unarrest” someone when, in hindsight, adequate probable cause did not exist. Similarly, prosecutors can be consulted who may determine that cause did not exist. Both serve as checks on a system that will always be fallible.

The news of an arrest, and the charges levied, in the information age, is widespread, obtainable by employers and available essentially forever online and unerasable. The price of being arrested has increased. So should the standards used to determine probable cause.

— The Concord (N.H.) Monitor