Weare police charge man for recording traffic stop

For those who didn't follow the article's link, here are the key definitions of the New Hampshire statute :

570-A:1 Definitions. – As used in this chapter:
I. "Telecommunication'' means the transfer of any form of information in whole or in part through the facilities of a communications common carrier. "Telecommunication'' does not include any communication made through a tone-only paging system or from a tracking device.
II. "Oral communication'' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
III. "Intercept'' means the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.

www.gencourt.state.nh.us...

I found it notable the statute does not prohibit video recording, as long as there is no audio. Also, upon reading the statute I have to question the article's claim that the defendant was charged with "felony wiretapping". Either the article is incorrect or the wrong charge was filed, because the defendant's actions clearly do constitute the felony charge, since he was a party to the conversation...

I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).

Some of you know I had a fifteen year LE career. However, even then as now, I would have not had a problem with being recorded by anyone, while discharging my duties and I find it abhorrent that any LE would. Now, my one exception is the recording and immediate broadcasting of officers engaged in a tactical operation, which has great potential for endangering the officers and/or innocent people.

As to this particular case, after reading the NH statute and a few NH Supreme Court cases involving challenges to audio evidence, it would seem the NHSC would probably uphold the charges against this defendant. However, if it were me, I would appeal a conviction based on the lack of an expectation of privacy on the part of the officer.

1) There is absolutely no doubt that every court in the country recognizes that there is no expectation of privacy in a vehicle, which is located in a public place, i.e. a street or public parking lot. Obviously, that same standard should apply to the officer conducting a traffic stop.

2) I suspect the officer himself was recording the traffic stop, via dashcam and wireless audio transmitter, which is permitted in NH, provided the officer notifies the suspected violator of the recording. Since that video/audio recording may, potentially, be viewed by others, there is no expectation of privacy.

3) It is not clear whether there was a passenger in the defendant's vehicle or if the stop was conducted in an area where third parties could easily observe and hear the conversation between the officer and the defendant. But, since any traffic stop has that potential, there can be no expectation of privacy.

4) Certainly, the officer is familiar with the workings of a cellphone and would understand that his utterances could be heard by whoever was on the other end of the call, if the officer observed the defendant holding the phone to his ear. And, whether or not the call was being recorded is irrelevant, as the statute does not differentiate in its definition of "intercepts".

I would recommend everyone educate themselves on the laws of their respective states, concerning such recordings. In Texas it is contained in Sec. 16.02 (c) (4) (A) which states it is an affirmative defense to prosecution if the person is a party to the communication. www.statutes.legis.state.tx.us...




ETA: While I said I believed it to be alright to record traffic stops, you should not prolong the stop by yakking to someone on the phone. There is too much potential for an officer to be struck by another vehicle, while standing next to yours, on a busy street or road. Please be respectful of that. Thank you.

I suspect these are the recordings in question..
nh.porcupine411.com...

followed by this one...
nh.porcupine411.com...

and this one, in which the recording is discussed, between the defendant and the officer...
nh.porcupine411.com...

You will note the officer was completely polite and handled the situation appropriately. Also, it could be a problem in regards to mens rea, that the defendant falsely claimed he had "parties" on the other end" of the call. If he believed he was legally recording the conversation, which he did argue, he should not have lied about recording the conversation.

The man identifies himself as "Biker Bill", who also left this message on July 22, after his arrest on the warrant.
nh.porcupine411.com...