Wiretapping Charges Dropped

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."

Really that much of a victory?

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.

Re:Really that much of a victory?

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.

Re:Really that much of a victory?

There are other factors.

First there is a huge amount of press about this giving the Police and DA a huge black eye. They are pushing the border of making every citizen hate them with this issue.

Second even though the police and DA there are corrupt enough to believe that they can control the public in their own homes pushing this will make ALL security cameras illegal. Making life difficult for every store, station, cop that is trying to record what is going on.

Personally I feel that the man targetted by the police in this harassment should have went whole hog releasing the tape to all media outlets and finding the right reporters to damage the police and the DA as much as they can. Remember cops tried to pull the same crap during the Rodney King beating, they tried to arrest the people that taped the cops kicking the crap out of him. In fact cops always try to arrest anyone capturing their misdeeds on video tape... we cant have evidence that cops are corrupt and out of control out in the public!

It's a standard operation proceedure, your only recourse to save yourself is to make it very public and loud.

Re:Really that much of a victory?

In Soviet Russia (Or, sadly, here in Brasil) they would actually kill anyone who videotaped their misdeeds and would put some drugs in your car and a gun in your hand to justify it. And no, this not meant to be funny.

They aren't off the hook yet!

I don't think he could have released the video. As I understand it, the police seized the tape when he brought it to them (he should've copied it first), then came to his house and ripped the cameras off the walls.

They still haven't returned the cameras (or the tape, I think) and they still maintain that he broke the law (maybe they're right, but if so, that law is despicable and just wrong).

They say he was disrespectful to them. That may be, but they still owe him a public apology for what they did.

Re:Really that much of a victory?

Actually I think it has more to do with the sticker on the side of the house.
The law says it is illegal if it is covert. He did have signs on his home but the police claim that they where not large enough.

This comes down to one question. Should the police have any right to privacy while acting in the line of duty?
Should any public official have a right to privacy when acting in the line of duty?
I honestly would have to say that I don't think so.
If an employer has the right to monitor employees performance than the public has the right to monitor public officials performance.

Re:Really that much of a victory?

My brother in law is a police officer... My brother in law dislikes bad cops as much or more than you and I do.

That's good to hear. When he sees a bad cop violate the law, does he arrest them? (Poor second choice: Does he report them to Internal Affairs?) An acquaintance of mine who is married to a cop once said, "I've never seen anyone break as many laws as cops". Of course, I took that to mean mostly "trivial" laws, the sort that a cop will overlook unless he's looking to hassle you.

If your brother in law looks the other way, then he is part of the problem.

Personally, I don't think a cop should be monitored on the job any more than say, a casino dealer. Even though a cop is dealing with life, death, and the public good, and a dealer is just dealing with money. I've heard that dealers are watched every minute, but I don't know if that's true.

Re:Really that much of a victory?

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.

gee, mod parent up maybe

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.

Re:gee, mod parent up maybe

Indeed, juries have no power to alter or comment on the law.

No given powers, but they have a de facto one: http://en.wikipedia.org/wiki/Jury_nullification [wikipedia.org]. Learn it, love it.

Re:gee, mod parent up maybe

Doesn't work that way. The jury is only the "trier of fact." Their job is only to decide the facts of the case, e.g. "did so-and-so do the following things as the prosecution alleges." It's then up to the judge to decide what the law says should happen if those facts are true.

It's true the jury can refuse to convict if they don't like the law, or for any other random reason. But since the legal system can't ever inquire why a jury didn't convict, it always regards a jury acquittal as implying nothing more than that the facts the prosecution alleged were not proven.

If citizens want a law off the books, their only real recourse is to the legislature. It can't really be done by sitting on juries unless you can get everyone who ever sits on a jury to agree not to convict. Difficult.

Re:gee, mod parent up maybe

It's not a precedent that's useful (or harmful) to anyone.

Juries don't have the legal knowledge of everyone else in the courtroom and therefore can't act with respect to legal precedent unless instructed to do so by the judge. However, the judge can't instruct the jury to act in accordance with the previous jury's actions, because juries don't write rulings or legal opinions, so nobody else involved can proveably discern what a jury used in its decision.

A jury certainly can nullify, and the end result is the same, but only for that particular case. (And, as an aside, that's why precedent is tricky - no two cases are exactly alike, and opposing sides have different interpretations of precedent. That's why we have judges, not databases of rulings.) There's nothing stopping a prosecutor from filing a very similar case in another jurisdiction, nor should there be until a judge is more assertive and strikes the law down as unconsitutional - thank God for pre-trial motions. Judges nullify laws. Juries nullify charges.

Re:gee, mod parent up maybe

Nooo, not legally they can't. "Jury nullification" has no legal standing at all. Judges, subsequent juries, and legislatures are not bound by it. It's nothing more than the common-sense observation that if juries routinely refuse to convict anyone charged with breaking a given law, then the law has de facto (but not de jure) no force.

Sounds like New Hampshire needs to change it's law

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.

just classify police with movie stars

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.)

I just find 1-party a better system

The thing is, I shuold be able to record my phone conversations. Why not? You cannot safely assume that what you say to me on the phone is lost forever. I could be writing it down, or maybe just remembering it (I know people who are exceptional at that). Either way when you talk to me you've got to assume that I could be recording, in one fasion or another, what you say. If you trust me to keep that confidence is up to you.

I see the privacy arguments of a 2-party system, I just think they are invalid. It is basically saying "I should have privacy, even when I do things that break privacy." As the saying goes, if two people know it, it's not a secret. So if you tell me, you should assume I can tell others, if I wish, regardless of if it's jsut me telling them from memory, or having a recording of it.

To me it's similar to photography laws (which are fairly uniform). You can photograph my house from public property, there's nothing I can do to stop you. You can't come on my property, of course, or circumvent barriers I have, but you can stand on the street and take pictures (or video) to your hearts content. Thus, if I want to have privacy, I need to keep my blinds closed. If I am standing on my porch naked, I can't get pissed that you took a picture of me. I have no expectation of privacy, because I'm publicly visible, even if I'm on my property.

Re:I just find 1-party a better system

Well, I think we need to delve into the roots of why we want our privacy at all. If we're not doing anything wrong, why do we care whether others might find out about it? Why do I care whether someone aims a telephoto lens into my kitchen window and photographs me making dinner, unless I'm cooking up some crack or my freshly-butchered neighbor or I'm in the buff with a boner...?

I suggest the main reason we care about our privacy in conversation is that we know we are intrinsically much more guarded in what we say when we know every last detail of what we say will be recorded and can be quoted, often out of context, later, to anyone at all. And that means we're a lot less likely to be as honest and forthright in any conversation that's being recorded, or which we suspect might be recorded. That hurts everyone.

Let me put it this way. Say you own a small business, and an irate customer calls because one of your salesmen did something bogus -- sold him a widget without mentioning a peculiarity that made him drop it and hurt his toe. Now, if you and he are talking privately -- no recording, no one listening in -- then the conversation will be pretty informal. It might get heated, but it will probably be as honest as it can be. You might be willing to agree your salesmen fscked up, apologize, and offer to make some minor restitution. The guy might be mollified, agree he's a little at fault too, and accept. Problem solved.

But suppose you know the conversation is being recorded, and a jury might hear it later and nail you for $10,000 of damages plus costs? Or it might be played on YouTube and cause you endless PR problems? You're going to be a lot cagier, you're going to admit nothing, argue aggressively that caveat emptor and it's not your salesman's fault, et cetera. And the guy at the other end, he's not going to be willing to admit he might have been a little inattentive, a little at fault, too. So the conversation is less likely to come to a mutually-acceptable end, and much more likely to be a stiff, pointless exchange of talking points. That's not good. Means what could have been a small conflict can become a much bigger and harder to solve conflict.

Basically having a two-party law says conversations are generally "off the record" unless everyone agrees otherwise, and I suggest a big purpose of this is to encourage the greater honesty in conversation that happens when things are off the record.

Sure, it's true people can take notes of a conversation, or memorize parts of it. But these are both very limited ways of recording the conversation, and are bound to generally capture only the high points. It's much harder to take some little tidbit out of context and use it to damn you. Furthermore, you have a plausible defense in that you can argue the fallibility of memory, or the illegibility of the notes, whatever. So it's definitely harder to use the conversation to attack you than if it were recorded in perfect fidelity.

I'm not saying this argument need be convincing. Your argument is sound. It's a tough call which argument should prevail, and probably people feel one way and then the other, depending on what's happened to them lately. Sure, sometimes I wish I could've recorded things the ex-wife said to me over the phone. But then again, there are times I'm right glad she couldn't record what I said. It cuts both ways for most people, sooner or later. That's probably why there's no national consensus on this issue, and different states have substantially different laws.

Re:I just find 1-party a better system

I think it might be better to just write in a public official exception to the 2-party rule; a public official, while carrying out his/her duties, is automatically assumed to have granted (by virtue of executing the public business) permission to be recorded. This would preserve your extremely insightful point about private sincerity, but still sticks it to the Man when the Man overreaches.

Re:Really that much of a victory? No

Or (if allowed in his jurisdiction) his wife could have went with a property bond. This usually places a lien against the property and raises the possibility of forclosure should the defendant skip bail. BUT, if the defendant does show you're not out of pocket any actual monies.

Might have something to do with the cops lying...

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.

Re:Might have something to do with the cops lying.

I believe the technical term would be "bullshit" charges, as in "Cops bring up bullshit charges and laws fairly often." I don't think any other word comes close to expressing the concept nearly as well.

Re:Might have something to do with the cops lying.

I have a friend who is nearly a lawyer and she has been involved in lots of protests in her life.

*** _I_ am not a lawyer and this is not legal advice. Always get your legal advice from a lawyer. ***

When approached by a cop, you only have to identify yourself. You really don't have to answer any other questions.

Anything you say before you are arrested can be used against you. Don't admit to anything. If he asks "have you been drinking/fucking/...", she recommends answering with something like "isn't it a nice day, officer", or "can I help you with anything, officer".

If they ask you if they can search your purse, car, pants, etc. You should always answer, "I'm sorry officer, I do not consent to this search." They will probably do the search - illegally probabably. But if you have not given consent, any evidence most likely cannot be used against you. The trick is that they want to find something and get you to talk. They might not be able to use the evidence they found, but if you then confess about that evidence, you're fucked.

But more importantly, say very early in the dialogue:

"Am I under arrest?" This forces the cop's hand... at this point he either has to arrest you or not. Once you are arrested, he is required to read you your miranda rights.

This should be followed by (if you're not under arrest):

"Am I free to go."

If you ARE under arrest, the next thing you need to say is:
"I want my lawyer NOW".

It's very important to state it in no uncertain terms. Saying things like "I think I should have a lawyer", or "maybe I should have a lawyer", or "can I have a lawyer" are not good enough and don't invoke your protections.

After this, SHUT YOUR TRAP!

REMEMBER... THE COPS ARE ***NOT*** ON YOUR SIDE. THEY ARE ***NOT*** YOUR FRIEND. They will LIE, CHEAT, and do anything they can to get you to give yourself up. Don't fall for it. They do this all day, every-day. You probably never have. Would you play one-on-one with a pro ball player in a wager for your life? It's the same thing here... the cops and DAs are well practiced pro-level players. They will grind you up and dispose of you before you know what hit you.

And the best way to keep from being rail-roaded by the "justice" system is to avoid getting into it in the first place. Know your rights and exercise them.

So remember:
I do not consent to this search.
Am I under arrest?
Am I free to go?
I want my lawyer NOW.
then SHUT UP!

Thanks

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...

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...

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

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

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

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.

Re:Yeah, But...

I think you're missing my point.

I'd rather be mugged by Gannon Jr, than be incarcerated by the State for 27 years for protecting my home and exercising my basic civil rights.

One down...one (at least) to go

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.

Absurd

Gannon's cameras recorded both audio and video, and a sticker on the side of his Morgan Street home warned that persons on the premises were subject to being recorded.

Going to jail, for wanted to have a secure home.

There seem to have been a lot of recent news articles focusing upon cases in which law enforcement agencies have gone completely overboard. I do not want to be protected by an agency in which those who run it take advantage of their authorative positions, which is what appears to be being the case.

Re:A secure home

The guy appears to be a total jerk to have raised such a son and go to such efforts to keep him from getting caught.

Well, can you blame him? Maybe he didn't even know his son had a gun. Even if he knew, he probably didn't know, and surely couldn't believe, his son was a mugger. Also, don't blame all the kid's problems on the parents; you're just as aware as I am of the fact that after a certain age, friends contribute more to one's upbringing than parents. Furthermore, his son being a criminal doesn't mean he's a jerk. Think a little before you go randomly insulting people with misinformed knee-jerk statements.

However, I for one would be very careful about creating exceptions to a law that protects privacy, who knows what other exceptions they may invent against me?

Exceptions for the cops are already in place: they can film you, but you can't film them. That doesn't mean you can break the law though, but from what I read in the previous article there's an exception if both parties know they're being filmed. The sign clearly stated such, so the cops would have known if they bothered to read it. Ignorance of the law is no excuse to break it, and ignorance of the wording on the sign you just passed is no excuse for suing someone who's done nothing wrong.

The police didn't break any laws

They refused to leave after being asked several times to do so. One cop even stuck his foot in the door, so even assuming the front yard was not private property, the house clearly is (just clarifying, 'coz the street I live in, everything between the street and the outer wall of our house is property of the town I live in, not private property). As far as I know, remaining on someone's private property after being asked to leave, is illegal.

What is the proper etiquette to talk to the family of a man who commits muggings at gunpoint?

Why would you treat him any other than you would treat any other random civilian? Being family of someone who at the time the actions took place was suspected of committing muggery does not mean you're in on the deal, so there's no justification for being treated as such. However, this gets abused fairly often; I know a girl whose whole family is on some government black list here in Belgium, barring her and her family from ever holding public office, simply because her grandfather or something was a collaborator in the second world war.

This means they had every reason to investigate.

Sure, "investigate" being the keyword here. Not "harrass". Maybe in your world all verbs have the same meaning, but there's roughly 6 billion of us who'd happily trade with your world if we'd only knew for certain that "trade" doesn't mean "make war" in your language...

Frist Prost?

Article says that the police still think he's guilty, but the case isn't worth prosecuting.

I think I have to agree with the police on that. Sure, the guy had a sticker that says he's recording things, and normally, if the police were on his property after seeing the sticker, that would count as consent to be recorded. But apparently, the sticker was too small to be reasonably noticable. 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.

Re:Frist Prost?

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?

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.