This is my pre-trial hearing on defense motions (to suppress, and for judgment of acquittal), at Goffstown District Court, Judge Edward B. Tenney presiding, 7/29/2011, related to (originally) felony wiretapping charges for exhibiting the temerity to call an answering machine in the presence of a detaining officer, one who had already been informed he was subject to recording -- something of which he should ever be cognizant just as a matter of course. Assume we're watching. Because increasingly, we are. (The 4/5/2011 arraignment can be found here.)
You'll note that the state's case comes down to the question of whether the officer consented. Well, he did, actually. Expressly. It's even among her stipulated facts. And at 20:25, she even reads it. Twice! Arguably 3 times. And then a mere 45 seconds later at 21:55 (the times might be slightly off after YouTube processing), she concedes that if consent had been obtained, "then we wouldn't be here today!" Umm. So is it your contention, then, counselor, that the officer can selectively choose who may or may not record him simultaneously in a public place? How is that not a blatant infringement on free speech and free press?
But even more problematic for the state, it needs to first establish that consent was required in a public place, let alone from said public employee on a public thoroughfare, interrupting with implied force a peaceful traveler's evening without probable cause. Liberty says it isn't. Reason says it isn't. My tax dollars say it isn't. As I've outlined previously, the Constitutions and the RSAs say it isn't. And perhaps most significantly for the court, the mounting case law -- limited (well, nil, actually) as it still nevertheless is in NH, given the state's ongoing efforts to avoid a (surely unfavorable) ruling in a misguided effort to protect its "intimidation factor" -- says it isn't. What's there to consider? What, indeed. No expectation of privacy in a public place -- much less for public servants on the job -- therefore no case. "Notification" or not, "consent" or not.
One more time for clarity. There is no RSA 570-A-defined "expectation of privacy" to justify requiring either "notification" or "consent." They're red herrings: the first hurdle hasn't been cleared in order to get to them. Yet even if that necessary hurdle had been cleared, the prosecution has, herself, already stipulated that the officer consented to an environment where he was to be recorded (and it's only barely plausibly arguable that he didn't also consent to me, as well). He had no other reasonable expectation. So why are we here today? And why are we likely to have to come back again, at taxpayer (not to mention my own and my much-appreciated supporters') expense?
Another tangent in the state's case is that the functionality of modern phones somehow no longer constitutes the "ordinary" use of a phone, so therefore the reference to phones in the statute somehow doesn't apply anymore. Similar arguments are asserted against the 2nd Amendment: that it somehow only protects firearms contemporary to the colonial period (while servant government's own arsenal can evolve and grow unabated, of course, because that upside-down disparity between servant and master, we're told, in a document otherwise devised to limit government oppression, is what was intended to be protected).
Also, although we never hear it, for some reason, the identical argument could effortlessly be employed against the 1st Amendment, as well, thus limiting the fourth estate -- including you, citizen journalist -- to Gutenberg's press. No electronic signs. No radio. No tv. No computers. No internet. No cameras. No phones. Hell, no ball-point pens. Not protected speech. Not protected press tools. Would we accept this identical argument in that context?
Technology advances, even as the Founders (consider the inventions of Franklin or Jefferson, themselves, just for example) would have expected. And in our system (as it was intended, I mean), things aren't considered prohibited by default until our magnanimous government expressly permits them to us. Get over it. And expect to be held accountable.
Lastly, if you really insist on going down the "hypotheticals" road, counselor, what if the officer had beaten the defendant, a la 'Rodney King,' and the cell phone was the only record? What of the defendant's Constitutional right to produce his own evidence? The distinction may be lost on you, but this is a judicial hearing, not a legislative hearing. The law -- Part First, Articles 8 & 15, and RSAs 91-A & 570-A (the one in the statutes, not the edited version in your fevered imagination), just to get ya started -- already exists. You just need to respect it.
On the job means on the record. The very nature of government, and its intended relationship to the People demands it. Public servants must expect to be so held accountable. Or get another job.
Citizens of Weare, you should rightfully feel embarrassed and outraged -- not to mention made economically poorer -- by the actions and conduct of these petulant, recalcitrant, profligate, bullying servants. I know I do. They need to be brought to heel or fired. Clean house. They work for you.
Their budget certainly needs to be addressed come Town Meeting, 'cause they clearly have way too much of your money to frivolously squander for their own self-serving unsupervised ends.
"The Press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people."What's your police department up to today...?
-Justice Hugo L. Black-
One only has to reverse the situation to see how ridiculous is the position of the police here. No one asked Pame Smart whether or not SHE consented to being recorded in a public place, and her attorneys never challenged the recordings on the basis of any violation of privacy or fourth amendment rights. They challenged it on the basis that she had already obtained counsel, and it was a violation of her right to an attorney. The police would have no problem recording a drug dealer on a public street and using that recording in a trial. There is no issue of privacy at ALL. Seriously, the attorney for the town is arguing that the police have more privacy rights on a public street than do citizens, and that is what is offensive to me. They don't. Period. Since they have no legitimate expectation of privacy, the policeman's conversation was not "oral communication" as defined in the statute. You are very correct that consent or lack thereof is not an issue.
ReplyDelete