LE Should Know this Recent New Hampshire Supreme Court Decision on Wiretapping and Evidence Collection

New Hampshire Supreme Court Decision on the Suppression of Evidence Collection when the Wiretapping Statute has been Violated

Understanding State v. Clark

On November 13, 2024, the New Hampshire Supreme Court issued a significant ruling in State v. Clark (2024 N.H. 64) regarding the admissibility of evidence obtained through audio recordings under the state’s Wiretapping and Eavesdropping Law, RSA chapter 570-A. This decision has critical implications for law enforcement officers, particularly in cases where victims record incidents without the knowledge or consent of the other party.

The Court addressed whether suppression of such recordings is mandatory when the recording constitutes a misdemeanor rather than a felony violation under the Wiretapping and Eavesdropping Law. The decision clarifies that suppression is only required when the interception constitutes a felony violation, as defined under RSA 570-A:2, I. Recordings that constitute a misdemeanor violation do not result in mandatory suppression of such evidence, unless other factors are examined by the court.

Case Background

The case at hand involved an individual, Matthew Clark, who was charged with felony criminal threatening with a deadly weapon. The victim, who was a party to the conversation, recorded potentially incriminating statements made by the defendant without his knowledge or consent. The complainant later provided the recording to law enforcement as evidence of these crimes. The defendant argued that the recording should be suppressed because it violated RSA chapter 570-A.

The trial court determined that the recording constituted only a misdemeanor violation of RSA 570-A:2, I-a specifically because the victim was a party to the conversation. Consequently, the trial court denied the defendant's motion to suppress. An interlocutory appeal brought three questions before the Supreme Court, including whether suppression is required for recordings constituting misdemeanor violations and whether the complainant’s disclosure of the recording elevated the violation to a felony which would require suppression.

The Supreme Court’s Analysis

The Supreme Court upheld the trial court’s interpretation that suppression under RSA 570-A:6 is only warranted when a recording violates the felony provisions of RSA 570-A:2, I. This provision prohibits willful interception and disclosure of communications without the consent of all parties, and violations under this section constitute felonies. In contrast, RSA 570-A:2, I-a, addressing one-party recordings where the recorder is a participant, constitutes a misdemeanor violation.

Legislative Context and Suppression of Evidence

New Hampshire’s legislature has provided detailed input into the circumstances under which evidence must be suppressed. For example, RSA 595-A:10 outlines an informed consent exception for motor vehicle searches. Under this statute, suppression of evidence is mandatory if law enforcement officers fail to comply with specific procedural requirements, including informing the vehicle operator of their right to refuse consent to a search and mandatorily documenting the individuals consent through written and/or audiovisual means.

This provision exemplifies the legislature’s commitment to balancing individual rights and effective law enforcement. Key aspects include:

1. Operator Rights: The statute ensures that operators are explicitly informed that refusing a search cannot be used against them as probable cause or a basis for continued detention in and of itself (officers should develop their own articulable facts or probable cause for detention or arrest independent of the request to search).
2. Documentation Requirements: Law enforcement must either obtain a signed consent form or capture consent via video and audio recording, ensuring transparency and accountability.
3. Suppression for Violations: Evidence obtained in violation of these requirements is inadmissible, reflecting the legislature’s intent to deter procedural misconduct (including the officer acting on verbal consent alone).

These legislative safeguards are critical in protecting citizens from unlawful searches and seizure of property while providing clear guidelines for law enforcement. Similar principles are reflected in the Court’s interpretation of RSA chapter 570-A in State v. Clark, emphasizing that suppression applies only to specific statutory violations.

Implications for Law Enforcement

This ruling has significant implications for evidence collection and the admissibility of audio recordings in criminal cases. Law enforcement officers must carefully evaluate the circumstances under which these recordings are obtained. Notably:

1. Victim Recordings: Recordings made by victims or witnesses who are parties to the communication may not be suppressed if they constitute only a misdemeanor violation under RSA 570-A:2, I-a. This is particularly relevant in domestic violence and stalking cases where victims may record threats or abuse and are party those communications. Individuals who are not party to those communications may be violating the felony provisions of wiretapping.
2. Disclosure to Law Enforcement: The Court’s remand suggests that disclosure of recordings to law enforcement could elevate the offense to a felony, depending on the intent and awareness of the disclosing party. Officers should document all interactions meticulously to determine the legality of the evidence when it is provided by witnesses and/or victims.
   1. NH Law Enforcement should stay tuned for further decisions made by the court on this issue. Depending on the rulings made through remand, further interpretations of the Wiretapping statute may be coming.
3. Homicides and Recorded Evidence: This decision raises concerns about cases where inadvertent audio recordings capture assailants during the commission of a homicide. In such scenarios, the admissibility of these recordings could be critically damaging to the investigation and further prosecution.

Balancing Privacy and Justice

The Court’s decision underscores the balance between individual privacy protections and the pursuit of justice. While the Wiretapping and Eavesdropping statute aims to safeguard individuals from unauthorized surveillance, its application must account for the realities of evidence collection in criminal investigations.

For law enforcement officers in New Hampshire, this ruling highlights the importance of understanding RSA chapter 570-A’s nuances and ensuring that evidence is collected and presented in compliance with the law. Training and policy development should emphasize these distinctions to avoid suppression of crucial evidence in serious cases.