THE STATE OF NEW HAMPSHIRE
STRAFFORD COUNTY, SS.
STATE OF NEW HAMPSHIRE
Docket No.: 01-S-317
ORDER ON PENDING MOTIONS
The defendant's motions to suppress based on lack of reasonable suspicion with respect to the stop and lack of probable cause to arrest are DENIED. The court will issue more detailed findings and rulings at a later date with respect to the stop and the arrest.
Defendant also moves to suppress the audio recording of her conversations at the Dover Police Department booking room as violative of the wiretapping and eavesdropping statute, RSA 570-A:2.
Defendant was arrested for DWI and brought to the Dover Police Station for processing. The defendant was brought into the booking room and brought to a counter where she was processed. She agreed to take a breath test to determine her blood alcohol content and was subject to a waiting period prior to the test, where she was seated in a chair adjacent to the booking counter. She was later seated in a chair at the counter while the arresting officer administered the blood alcohol test by the use of a breath testing machine.
The practice at the Dover Police Station is to video and audio record the activities of defendants while in the booking room. Two wall-mounted cameras are visible to anyone in the booking room, and the video and sound recordings are recorded on a VCR machine, which is located on a shelf in a cabinet under the long counter in the booking room, near the blood alcohol testing machinery. See Defendant's Exhibit C. A single sign approximately 10 inches by 15 inches is mounted on a wall in the booking room which contains, in its entirety, the following information in large print, bold lettering:
Meal Hours: 0800-1200-1700
Personal phone calls may be
made at these times.
Emergency Medical Attention available by
Contacting the Shift Commander
THIS IS A VISUAL-SOUND
This sign is located on a wall that is away from the counter where an arrested suspect is processed, and in the case of a DWI defendant, subject to blood alcohol testing. Two copies of this same sign are located in the holding facility which is on the other side of two walls of the booking area and is visible to persons held in the Dover Police holding cells. See Defendant's Exhibit C.
The officer testified, and the court finds, that after bringing the defendant into the booking room, he took a VCR tape and placed it in the VCR and turned on the VCR machine. A television monitor which is also located on a shelf in the booking counter was visible but not turned on. The defendant was not orally advised by anyone that her conversations would be recorded by the Dover Police Department, or later used as evidence against her.
RSA 570-A:2 prohibits sound recording of a person's oral communications without the person's consent except in certain specified instances. No exception is made for recording a suspect's conversations without the suspect's knowledge or consent in a police booking room.
"Oral communication" is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."
The State argues that the defendant was on notice of the recording of her conversations by virtue of the fact that the two video cameras are in plain sight and the VCR is located in a cabinet in the booking room that is also in plain view. Moreover, the State argues that the Dover Police Department has permanently placed on a wall of the booking room a sign which tells suspects that they are under visual and sound monitoring, and in any event, no one would have an expectation of privacy in his or her conversations in a police booking area.
The court will address each of these arguments in turn. First, while the cameras are in plain sight, the VCR machine is not. Moreover, it is not at all obvious at any given time that events in the booking room are being audio recorded.1 At no time is a person orally advised that she is being recorded and that the audio recording may be used as evidence in a later criminal proceeding. The presence of cameras and a VCR does not put a person on notice that his or her conversations are actually being recorded.
With respect to the single sign in the booking room, the sign, which is on the wall adjacent to the holding facility, is entitled "Dover Police Holding Facility," and provides information about visiting hours, meal hours, times when personal phone calls may be made, and arrangements for medical attention, all matters that pertain to the holding facility, not the booking room. The sign also indicates, "this is a visual-sound monitored area."
At best, the sign is ambiguous, not only as to what is meant by "this is a visual-sound monitored area," but also by what area is the subject of the notice. The first three pieces of information in the sign relate to conditions in the Dover Police Holding Facility, the area noticed in the caption of the sign, not the booking room where the defendant was processed. Even assuming a suspect would interpret the words, "this is a visual-sound monitored area," as meaning, "you are being audio and video recorded," it is certainly not the case that a person seeing that sign on a wall leading to the holding cells, away from the booking counter, would even consider that the notice applied, at all, to the booking area.
At the hearing on the Motion to Suppress, the State argued that the defendant had no expectation of privacy as to her conversations in the Dover Police Department booking room. At the hearing on the Motion to Reconsider, the State focused on the definitions of "oral communications" in RSA 570-A:1, II, contending that the defendant's recorded statements were not covered by the statute because the defendant had "an expectation that [her] communication [was] subject to interception under circumstances justifying such expectation." Id. Thus, if the defendant believed that her conversations were subject to being recorded, there is no violation of the statute in recording the conversation. The statute has been construed as providing that where a person has "a reasonable expectation that her conversation will not be subject to interception," the law prohibits any audio recording of her conversations. Fischer v. Hooper, 143 N.H. 585, 590 (1999) [emphasis added]. More recently, the court in State v. Locke, 144 N.H. 348, 355 (1999), held that consent to interception or mechanical recording of a communication may be inferred "when the surrounding circumstances demonstrate that the consenting party knew that law enforcement personnel were intercepting the conversation with an `electronic, mechanical or other device....'" In Locke, the court held that the precise means of interception need not be disclosed, as long as the person was aware that the conversation would be intercepted by some means. Id.
The facts in this case do not demonstrate, by any means, that the defendant knew, or should have known, that her conversations were being recorded. The officer testified that it was Department practice, specifically, to not inform a suspect that they were being recorded. The single sign, located away from the booking room counter, as noted earlier, did not put the defendant on notice that her conversation was being recorded, and by way of offer of proof, defense counsel stated the defendant would testify she did not even see the sign. The presence of wall mounted cameras does not put someone on notice that her voice is being captured, and the officer's insertion of a cassette tape into a VCR machine, without explanation, likewise is notice of nothing.
In short, as the court looks to determine whether parties have validly consented to recording of their conversations, see, 570-A:2, I-a, it requires no hyper-technical reading of "consent" to find that no serious effort was made to determine if the defendant understood, much less consented to, the fact that her conversations were being recorded in the booking room. Locke, 144 N.H. at 355. Under all the surrounding circumstances, it cannot be found that the defendant here knew that law enforcement officers of the Dover Police Department were recording her conversations in the booking room.
Defendant's motion to suppress the audio portion of the videotape recording at the Dover Police Department is GRANTED.
Date July 11,
Bruce E. Mohl
1 There is no issue here with respect to the video recording of activities in the booking room as the statute, RSA Chapter 570-A, addresses only the interception of oral communications.