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Wiretapping Charges Dropped

Posted by CowboyNeal on Sat Aug 05, 2006 01:06 PM
from the express-written-consent dept.
Ada_Rules writes "I realize that the end of a story is not nearly as sexy as the beginning, but police in Nashua have dropped the wiretapping charges against a man that had recorded both video and audio from on his home security system. The man had brought a videotape to the police station to back up a claim that a detective was rude to him while on his property as part of an investigation. In addition, the police have determined that the man's complaint about the detective was justified."
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[+] IT: NH Man Arrested for Videotaping Police 1232 comments
macinrack writes to mention a story about a New Hampshire man who was arrested for videotaping police on his doorstep, using a fairly standard security camera system. He was officially charged with 'two felony counts of violating state eavesdropping and wiretap law by using an electronic device.' From the article: "The security cameras record sound and audio directly to a videocassette recorder inside the house, and the Gannons posted warnings about the system, Janet Gannon said. On Tuesday night, Michael Gannon brought a videocassette to the police department, and asked to speak with someone in 'public relations,' his wife said and police reported. Gannon wanted to lodge a complaint against Karlis, who had come to the family's house while investigating their sons, Janet Gannon said. She said Karlis showed up late at night, was rude, and refused to leave when they asked him."
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  • by OO7david (159677) on Saturday August 05 2006, @01:12PM (#15852626) Homepage Journal
    While police believe Gannon had violated state wiretap laws, Hefferan wrote in a statement announcing his decision, police and prosecutors concluded the case wasnt strong enough to bother prosecuting.

    It seems that it is less that the little guy here won, so much as the DA simply thought he wouldn't win. The decision is less based on the merit of the claim so it doesn't seem like anything is really gained by this happening.

    • by Vellmont (569020) on Saturday August 05 2006, @01:43PM (#15852733)

      It seems that it is less that the little guy here won, so much as the DA simply thought he wouldn't win.

      Well, you're correct, but with a qualification. In this case it's not lack of evidence that made the DA think he couldn't win. Obviously there's a frickin video tape that's undeniable evidence of what went on. The reason the DA didn't think he could win is that any jury would be hard pressed to believe that this guy has done anything wrong. If you ask me, that's a big win against this law in cases like this.
    • by Anonymous Coward on Saturday August 05 2006, @02:08PM (#15852812)
      The thing the "government" did not want to have happen is the judicial exception to their law (the New Hampshire law is ridiculous in that it only allows the government to use audio/video recording to capture criminals but does not allow regular people to do the same -- read it and see). By dropping the case, now there can be no judgment that regular people are indeed allowed to record wrongdoing by their government officials.

      This means the police in the state of N.H. can go on arresting people whenever they want for recording their wrongdoing. There is no liability to an officer (or the local government) for an arrest unless you can convince some judges the arrest "shocks the conscious" (good luck) or show that there is legal precedent that the arrest is false (exactly what the dropping of the charges accomplishes removing from play).

      This, btw, is the typical maneuver used when the government knows they have fucked up in a way that might create precedent adverse to their interest. And, they can always reinstate the charge later. So, don't try and get a judicial declaration that what they did was wrong -- those charges being reinstated hang over your head, now with added gravity.
      • by Quadraginta (902985) on Saturday August 05 2006, @02:23PM (#15852865)
        I think you have made a very important point, although it is not the jury of which the police are afraid but the judge.

        If a jury refuses to convict, all they are saying, technically, is that they are not convinced the prosecutor has proved the facts of the case. It says nothing about the law. Indeed, juries have no power to alter or comment on the law.

        But what if the judge makes some rulings about the law? He can do anything from flatly declaring the law unconstitutional to putting a particular interpretation on its language. For example, the chief of police admits recording devices are legal if you post "notices" that warn people about it, and then says that the "notice" the guy had posted was insufficient -- not really a "notice" at all. Oh yeah? Sez who? What if a judge were to make a ruling about what size "notice" is really a notice? It could happen. Almost certainly would happen if this were an important element of the trial. Then the police are stuck with that ruling. They can never make the argument later that a certain notice wasn't really a notice because it wasn't floodlit, was printed in soft purple instead of bold red, et cetera. Whatever the previous judge said constituted a notice is it.

        Any rulings a judge makes become precedential, or at least citeable, in other court actions. As you say, this could easily constrain the powers of the government in similar cases later. Better by far to drop the case and avoid the danger.

        The bullshit about "not being able to convince a jury" is just a way to save face, of course.
    • by Sycraft-fu (314770) on Saturday August 05 2006, @02:14PM (#15852831)
      Seriously, the correct answer here, if citizens are really outraged, it to push through a ballot measure to change to be a 1-party state. That solves future problems like this.

      Remember: This isn't a US thing, this is state by state. Some states, like New Hampshire are rea 2-party, and bitchy at that. All parties involved in being recorded have to consent beforehand. Of course, police get an exemption from this for their cameras in the cars.

      Well that's not how it has to be. Other states are 1-party states, meaning only 1-party has to be informaed of the recording. So you can't go and tap your neighbours phone, but you can tap your own and not tell anyone. So long as one person knows, it's fine. Further some places, like Arizona, have a law such that if you own something, you are implicitly a party present or not. So you can record your own property, phoneline, whatever, and even if others are conversing without your presence you are still a party because it's your stuff.

      So that's what it comes down to here. The NH voters just need to get this on the next ballot and change it. Now I'm guessing, for all the outrage, they are just going to let it drop and forget about it. Kinda sad, but really nothing you can do.
      • by Quadraginta (902985) on Saturday August 05 2006, @02:38PM (#15852932)
        New Hampshire is traditionally a state where citizens love their privacy. The idea of being a two-party state is to make it damn hard for citizen A to record what citizen B has to say. I don't think that's a bad idea. But I doubt people thought much about the issue of citizens recording the police, probably because they didn't realize -- pre Rodney King -- that this would generate any information useful to the preservation of public order.

        Now we know better. Turns out to be very useful to watch the police, as useful as it is to keep an eye on any public servant entrusted with the peoples' power. So I'd say the right thing to do is classify the police -- or any government agent -- in the same way as we classify public personages, like candidates or actors in public. These people by their choice of profession and action implicitly give consent to be recorded. It's not a felony to record John Kerry making a public speech (should you have sufficient stamina or caffeine), or film Mel Gibson getting arrested on Highway 1, even if neither gives his prior consent. These people have chosen to be "public personages" and are in public, and that means they no longer have the same rights to privacy as Joe Citizen.

        If the police are out in uniform doing the public's work, it seems to me there should be a clear presumption that they're just as much public personages as a candidate for the state legislature giving public speeches, and that they have implicitly given permission to anyone to film or record them. (An obvious and sensible exception would be when they're undercover, not in uniform.)
  • by TheNoxx (412624) on Saturday August 05 2006, @01:13PM (#15852629) Homepage Journal
    Cops bring up surreptitious charges and laws fairly often, or will try to convince you in a similar manner that you don't have any rights. I have friends that are cops, good cops, that have told me this.

    Also, as I have many, many friends that are amateur and professional photographers, they were stunned when they heard this; some have been in similar situations with police and/or security. Luckily, there's this nifty little document [krages.com] I found from an attorney explaining the rights of photographers.
  • Thanks (Score:5, Insightful)

    by XanC (644172) on Saturday August 05 2006, @01:13PM (#15852630)
    A lot of the time, at pretty much every news outlet, we hear the inflammatory first part of the story, and then when never find out what really happened, what the other side of the story was, or how it turned out. Thanks for following up!
  • Yeah, But... (Score:5, Interesting)

    by Nom du Keyboard (633989) on Saturday August 05 2006, @01:14PM (#15852633)
    Yeah, they may have dropped it, but only after hassling and stressing this guy out over the possible consequences for days.

    In a fair society:

    1: He is entitled to compensation, say $1000 per hour for every hour between the time he was charged and the time he knew for sure that the charges were dropped.

    2: The police involved should be sent back for a minimum of 40 hours of updated training in the laws they are supposed to be enforcing.

    3: The city attorney, who didn't immediately drop these bogus charges (he, at least, has no excuse at all for not knowing the law) should be immediately fired, suspended, or recalled as appropriate.

    4: If there were any judges involved who didn't immediately drop the case, they should be impeached.

    Then there'd have been some true justice here.

    • Re:Yeah, But... (Score:5, Insightful)

      by Tack (4642) on Saturday August 05 2006, @01:31PM (#15852690) Homepage

      As I understand it, in my jurisidiction (Canada), the typical payout is around $1000 for every day you are unjustly incarcerated. People who are winning Miscarriage of Justice suits are in some cases getting millions. I personally think that's a bit on the low side, but at least it's some acknowledgement that they fucked up.

      For clearly bullshit arrests, especially ones that are so public, I think you should be eligible for similar damages, but I do think $1000/hour is quite excessive. I believe the guy is entitled to some restitution, but let's also remember that we (fellow taxpayers) are the ones paying for it. It's in everyone's interests to come up with a reasonable figure.

    • RTFA (Score:5, Insightful)

      by mangu (126918) on Saturday August 05 2006, @01:43PM (#15852732)
      He is entitled to compensation, say $1000 per hour for every hour between the time he was charged and the time he knew for sure that the charges were dropped.


      To be fair, let's not forget the police officers' side. They were after the homeowner's son, in an investigation connected with a mugging. They found in that house a stolen handgun. They found enough evidence to charge the boy on that mugging.


      All this means the police did have a valid reason to investigate the case. The officers may have behaved improperly, but the fact that they were investigating a crime and had a legitimate reason to be there still stands. According to the state law, the homeowner did commit a felony if he recorded the officers' conversation without their knowledge and consent.


      I do not think he's entitled to any compensation at all, what he did was to try to obstruct the investigation of his son's crimes. If I understood TFA well (and I *did* read it) the only reason why the wiretapping charges were dropped was because the city attorney thought that, given the public uproar on the case, a jury would be unlikely to find the homeowner guilty.


      Well, I hope that, if the son is really guilty of that mugging, the jury gives him his due punishment.

      • Re:RTFA (Score:5, Insightful)

        by mikeswi (658619) * on Saturday August 05 2006, @02:14PM (#15852830) Homepage Journal
        All true but none of that is relevant. It boils down to two facts:

        1) The officers had no warrant when they showed up at the door the first time and there was no probable cause to believe a crime was being committed right there on the property.

        2) They were asked to leave - repeatedly. They did not.

        Since they had no warrant or probable cause, they had no more rights to be on that man's private property than I would have. Since they did not leave when asked, they were guilty of trespassing. One cop even stuck his foot in the door. I don't know if that counts as breaking and entering in that particular city, but if so, the cop did it.

        The only laws broken in that incident were broken by the police. Their supervisor evidently agrees.
      • Re:RTFA (Score:5, Insightful)

        by zerocool^ (112121) on Saturday August 05 2006, @03:04PM (#15853008) Homepage Journal

        The law is NOT about the search for truth.

        If it were, there would be no laws governing search and siezure, chain of evidence, entrapment, or a number of other long-standing and well-established laws that we respect, if not revere.

        These laws are necesary to ensure that the government does not run roughshod over the civil liberties of its citizens.

  • by chill (34294) on Saturday August 05 2006, @01:15PM (#15852636) Homepage Journal
    Now they can focus on the guy they dragged out of his yard [slashdot.org] and arrested for daring to photograph the cops with his cellphone camera. After that, they can re-evaluate just what "Live Free or Die" means.
  • This has yourtube written all over it...
  • IANAL - civil suit (Score:5, Insightful)

    by jeffsenter (95083) on Saturday August 05 2006, @01:27PM (#15852680) Homepage
    I am not a lawyer. Now the wrongly arrested Gannon should file a civil suit against the police. It looks like he has a decent case for false arrest. This is one standard way a person goes on offense to remedy wrongful police behavior. It is not super effective, but it is much better than doing nothing.

    The state wiretap law notwithstanding, [police chief] Hefferan said citizens and businesses have the right to set up security systems that include audio recording, but they must post clear, obvious notice to warn anyone within range. The "obscure little sticker" Gannon had posted on the side of his house wasn't enough, Hefferan said.

    While police are never good sources for a fair interpretation of the law, the police chief's assertion that the problem was the size of the sticker denoting the video/audio recording indicates that the police don't have much to stand on.
  • by bjason82 (820735) on Saturday August 05 2006, @01:33PM (#15852698)
    When I read the first article about that man who was arrested because his home surveillance system had recorded a police officer who came to his home to speak to him I was fairly disturbed. It is no secret that our constant "legal" state of national emergency, that we have lived under for decades, has pretty much suspended the constitution. The laws passed following 9/11 took things that much further to where we are now. A man has the right to film his own property and anyone who passes onto it, so why was he arrested and charged with wiretapping because of the police's dislike of him? The thing I dont understand is how can the police allow themselves to be so propagandized and "programmed" to the point at which they no longer enforce the liberties granted to us under the constitution. I have read internal FBI memos that have been leaked and they discuss how the agents should be on the look out for different types of terrorist groups and they list certain characteristics of each. They characterize people who speak of their "constitutional rights" as being trouble makers. Am I the only one who see something wrong with this? Then again, I guess for most people it is easier to buy into the whole "less liberty/freedom = more protection against terrorists." I hear it all the time. Yes, those big bad arab-muslim terrorists are going to kill all americans...just after they get done killing each other in iraq. I'm not sure if you all have read the papers yet, but the media is reporting how iraq is on the verge of a major civil war...if it hasn't begun already. All i'm saying is this police oppression is nothing more than an extension of the post-9/11 mindset of tyrannical militarism and unreasonable punishment. This is just like the story a few days ago about the three 12 yr old children in england who were arrested and booked for breaking dead branches off trees so they could build a treehouse. What ever happened to the police protecting the people? I have heard more and more, from young and and old alike, that even though they are doing nothing wrong they still feel like they are guilty of something while in the presence of the police. I just dont see why they feel the need to be so intimidating and accusatory.
    • You don't see why? (Score:5, Insightful)

      by absurdist (758409) on Saturday August 05 2006, @01:58PM (#15852775)
      "I just dont see why they feel the need to be so intimidating and accusatory."

      Because they're assholes and bullies, plain and simple. And please don't ANYONE tell me hoe it's "just a small percentage of bad cops that ruin it for all the good cops." Any time a cop thinks the "thin blue line" is more important than the public, they've gone over to the dark side. Any time a cop looks the other way when fellow cops violate the law in ANY way, they're equally complicit. And if you think this is an exaggeration, look at how highly respected Internal Affairs or civilian oversight groups are held in esteem by every cop on the force in any given city, and how willing those cops are to cooperate with lawful investigations. Look how much they kick and scream about having video or audio recordings of their dealings with the public.

      These people are supposed to be trained professionals who are paid to do their jobs as such. And before you whine to me about how hard their job is, A: they have the badges, guns, big sticks, and the ability to put people in a cage, and B: they knew the job was dangerous when they took it. In fact, for many, that's WHY they took it. We have a right to hold them to a MUCH higher standard, and to come down on them EXTREMELY hard when they don't measure up to that standard. And if they don't like those conditions, they're welcome to find another job. Of course, in that other job, they wouldn't be able to be thugs and bullies, right?

      Remember, kids, power corrupts. Absolute power corrupts absolutely. Police power is no different than any other.
    • Re:Frist Prost? (Score:5, Insightful)

      by anagama (611277) <thepotter@yaCURIEhoo.com minus physicist> on Saturday August 05 2006, @01:34PM (#15852703) Homepage
      This was outside in a place open to view by the public and within earshot of neighbors right? Yes -- it was on his front porch. The cops have no reasonable expectation of privacy when they're in plain site in the public view from a common vid-cam. Neither does anybody. Sure, caveats exist, e.g., upskirt wouldn't fit in "normal". What disturbs me is that people seem so willing to relinquish their rights. Comments such as yours bode poorly for the future -- a future where the state is free to do as it wishes and citizens must always be careful lest some simple harmless act lands them in jail.
    • Re:Frist Prost? (Score:5, Insightful)

      by Bob9113 (14996) on Saturday August 05 2006, @01:39PM (#15852716) Homepage
      Given that, I'd say the police did not implicitly agree to be recorded, and as they did not explicitly agree to be recorded, that's all she wrote.

      What you are referring to is the concept of "expectation of privacy." If a person has a reasonable expectation of privacy, then privacy is their right. They must give up that right or the recording is illegal. For example, recording a person in a public park requires no authorization, because there is no expectation of privacy. Recording a person in the bathroom requires authorization, because they have a reasonable expectation of privacy.

      So the question then becomes, do the police have a reasonable expectation of privacy? First, do they ever have a reasonable expectation of privacy when executing the law? I think that we could probably come up with some reasonable situations in which regular police have that expectation during the execution of their duty, but I think generally it would not hold. The police are public servants with extraordinary powers. As such, it is vital to our form of government that they be accountable for their actions. Accountability hinges on public knowledge. While there are situations in which a person may be accountable without public knowledge, public knowledge is the only way to guarantee accountability.

      Do they have a reasonable expectation of privacy when executing the law in a public place? How could they? It is a public place. The very concept of a public place is that there is no reasonable expectation of privacy.

      Do they have a reasonable expectation of privacy when executing the law on someone's private property? Absolutely not. Does the local Circle K give up its right to use its cameras when a police officer walks into the store? It is an absurd notion.
    • Re:Well, Dammit! (Score:5, Insightful)

      by anagama (611277) <thepotter@yaCURIEhoo.com minus physicist> on Saturday August 05 2006, @01:41PM (#15852727) Homepage
      You realize of course the only reason the police misconduct didn't land this guy in jail is the publicity? We should be THANKING "Slashdot's tinfoil/civil rights/Bush-Hater's Club/EFF community". Otherwise, he'd be just another person run through the system unfairly.

      Ask yourself this, what would happen to you if you did this to some cop cameras:
      Gannon said he hopes police will return and reinstall the security cameras, which they seized from his home during a search after his arrest. "They broke them off the mounts and ripped the wires right out of the wall," Gannon said. "They took it, they can return it, that's my feeling."
    • by b0s0z0ku (752509) on Saturday August 05 2006, @02:23PM (#15852864)
      cops might be assholes, but we have to respect the fact that they are people too, and they also have rights granted by law.

      On the job, they should have *zero* right to privacy. We have granted then extraordinary powers within the law in order so that can preserve order. It's our right and *duty* to keep a constant eye on them so that don't abuse those powers. If criminals are bad enough, criminals operating under protection of law are worse.

      -b.

    • by King_TJ (85913) on Saturday August 05 2006, @02:32PM (#15852897) Homepage Journal
      Apparently, you haven't been reading all of the comments people already posted in response to this story. Many people have already pointed out the fact that police officers, given the power we grant them in the line of duty, should NOT expect to have the same level of privacy that they'd be entitled to when they're off-duty. It's just like the laws governing the filming of celebrities without their permission. People "in the public eye" have a reduced expectation of privacy because their career choice involves a great deal of public exposure.

      Furthermore, most states in the U.S. recognize the concept of "at will employment". If you accept a job in the private sector, your employment is a contract between you and your employer. *Either* one of you reserves the right to terminate the employment contract at any time, for any reason. (EG. Giving "2 weeks' notice" might be the courteous thing to do, but you're under no obligation to do so. You can, if you so choose, wait until the busiest day of the year for your employer, when they're absolutely counting on you to finish your portion of some critically important project, and say "I quit!" and walk out the door, costing them untold amounts of money and problems. By the same token, your employer can fire you "at will", without requirement of so much as giving a reason at all for doing so!)