Weare man was exercising his First Amendment rights, ruling says.
By GARRY RAYNO
New Hampshire Union Leader
CONCORD – Citing a federal appeals court ruling, a Goffstown District Court judge dismissed a charge of unlawful wiretapping against a Weare man who used his cell phone’s voice mail to record a traffic stop by a police officer.
Judge Edward Tenney cited a First Circuit Court of Appeals order in August in the case Glik v. Cunniffe in making his ruling. “The Glik holding makes it perfectly clear that First Amendment protections apply to both audio and video recording.”
William Alleman of 140 Helen Dearborn Road, Weare was charged in February with violating the state’s felony wiretapping law when he recorded his traffic stop by a Weare police officer. The traffic stop occurred in July 2010; Alleman was not cited for any violation until last February.
When he was charged, Weare police said Alleman made an audio recording of the police officer without his consent.
Alleman was one of three people charged over an 18-month period by Weare police for either video- or audio-taping arrests by police. The charges against the two other people were dropped.
Alleman’s attorney, Seth Hipple, said from the beginning his position has been that Alleman’s recording was not a violation of state law, but “the Glik opinion came out a week or two after we had our hearing on the motion, and that made a strong case even stronger.”
Hipple of the Concord law firm of Martin & Hipple, PLLC, said the law has always been clear, but some police departments have not been clear about it.
In court, Hipple argued Alleman had a First Amendment right to record a public official conducting his duties in a public place, that public officials conducting their business in a public place have no reasonable expectation of privacy and the defendant did not “intercept” any oral communications with an electronic device other than a telephone.
In the Glik case, Simon Glik, a Boston attorney, was arrested for filming police officers arresting a man on Boston Common.
The First Circuit Court ruled “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public place is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
In the Goffstown District Court ruling, Tenney wrote “Glik leaves no doubt that engaging in an audio recording of a police officer in the course of his official duties in a public place is protected speech under the First Amendment.”
The judge also noted Alleman did nothing to interfere with the officer as he performed his duties.
“The fact that Officer (Brandon) Montplaisir may have been unwilling or unhappy being recorded does not make a lawful exercise of the defendant’s First Amendment rights a crime,” the judge wrote.
After Alleman made the recording of the July 10, 2010, traffic stop, he posted it to a public web site.
Alleman was stopped after he left a gathering in support of Palmer’s Tavern owner George Hodgdon, who had been arrested for interfering with an assault investigation.
Alleman has said he was followed by a police officer when he left the gathering, and as Montplaisir approached his vehicle, he made a cell phone call to Porcupine411, an answering service for Libertarian activists in trouble with police.
“The fact that Officer (Brandon) Montplaisir may have been unwilling or unhappy being recorded does not make a lawful exercise of the defendant’s First Amendment rights a crime.”
JUDGE EDWARD TENNEY