after allegedly recording a DWI investigation

Police recently charged a Rochester man with a felony count of wiretapping after they discovered he was recording his investigation for driving while intoxicated.

The incident raises the question of when the act of recording a conversation becomes a criminal offense.

Rochester Police Officer Michael Brinkman was patrolling the area of Common Street shortly before 3 a.m. on Monday, March 7, when he noticed a suspicious vehicle parked in a space by the Rochester Commons. The vehicle’s sole occupant was sitting in the driver’s seat listening to the radio with the keys in the ignition, according to a court affidavit.

As Brinkman approached the vehicle, he detected a strong odor of alcohol and asked the driver if he had been drinking. The driver, 48-year-old Christopher A. Power, of 52 Chestnut St., admitted to drinking some beer earlier in the evening and said he was listening to music because he was stressed out, the affidavit states.

After conducting field sobriety tests, Brinkman arrested Power on a misdemeanor charge of driving while intoxicated. During the arrest process, Officer Aaron Garneau arrived and began searching the vehicle. He found a running Panasonic Micro Recorder on the driver’s seat cushion, Police Capt. Paul Callaghan said. Callaghan declined to specify how long the device had been running.

The discovery prompted police to tack on an additional charge of wiretapping, a Class B felony publishable by up to seven years in prison and a fine up to $4,000. Power was held overnight on $2,500 cash bail, but a district court judge converted the bail to $2,500 personal recognizance during his arraignment later that day.

The law regarding wiretapping falls under RSA 570-A:2 (which can be viewed online by visiting www.gencourt.state.nh.us and clicking on “miscellaneous links”). According to a complaint form filed at Rochester District Court, Power violated the law by intercepting an oral conversation between himself and Officer Garneau without Garneau’s knowledge.

Callaghan explained that it is illegal in New Hampshire to record any conversation without consent from all involved parties, regardless of where the conversation occurs. “In New Hampshire, you have to have two-party consent,” Callaghan said. “You have to have consent of the other person.” Wiretapping cases are uncommon in Rochester, he added.

Reached by phone on Thursday, May 10, Power said he did not wish to speak about the incident until after he had consulted with an attorney. He was in the process of looking for an attorney from a private firm to represent him.

Nashua police arrested a man on a similar charge last summer after he used a home security system to videotape an encounter with detectives who were looking for his son in connection with a mugging. The man delivered the tape to the police department to complain that a detective had been rude to him, but police arrested him for wiretapping.

The case drew national media attention, and police eventually decided to drop the charge. Nashua Police at the time maintained that the recording was illegal, but they worried it would be difficult to convince a jury. 

Power is scheduled to return to Rochester District Court for a probable cause hearing on May 24, at which time a judge will determine whether sufficient evidence exists to send the case to Strafford County Superior Court. Power pleaded not guilty to the DWI charge, but has not entered a plea on the wiretapping charge because the District Court has no jurisdiction over felonies.