STATE OF NEW HAMPSHIRE
SUPERIOR COURT

HILLSBOROUGH, SS.
NORTHERN DISTRICT

State of New Hampshire

v.
Alfredo Valentin
Docket No. 216-2015-CR-766
ORDER

Defendant, Alfredo Valentin, is charged with Unlawful Interception of Oral
Communication under RSA 570-A:2, I-a.

He moves to dismiss based on the First

Amendment to the U.S. Constitution and insufficiency of the indictment. The Court held
a hearing on October 13, 2015. Upon consideration of the pleadings, arguments, and
the applicable law, the Court finds and rules as follows.
Background

For the purposes of this motion, construing all evidence in the light most
favorable to the State, the Court finds the following facts . See State v. Lacasse, 153
N.H. 670, 672 (2006). On March 3, 2015, defendant found Manchester police officers
searching his residence. Defendant left his home and returned one to two hours later.
Police were still searching his residence.

Sergeant Brian LaVeille and Lieutenant

Christopher Sanders approached defendant in his driveway and spoke with him.
Defendant recorded some of this interaction on his cell phone. The State contends that
defendant held the phone by his leg, so as to conceal that he was recording .

 The State charged defendant with a misdemeanor wiretapping offense under
RSA 570-A:2, 1-a, which provides in relevant part:
(a] person is guilty of a misdemeanor if, except as otherwise specifically
provided in this chapter or without consent of all parties to the
communication, the person knowingly intercepts a telecommunication or
oral communication when the person is a party to the communication.
Analysis

Defendant argues that the Court must dismiss the charge against him because it
violates the First Amendment.

"It is firmly established that the First Amendment

protects a range of conduct surrounding the gathering and dissemination of information"
including "the right of individuals to videotape police officers performing their duties in
public." Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014); see Glik v. Cunniffe, 655 F.3d
78, 83 (1st Cir. 2011) ("[T]he First Amendment protects the filming of governmental
officials in public spaces ....").
"Gathering information about government officials in a form that can readily be
disseminated to others serves a cardinal First Amendment interest in protecting and
promoting 'the free discussion of governmental affairs."' Glik, 655 F.3d at 82 (quoting
Mills v. Alaba_ma, 384 U.S. 214, 218 (1966)).
'[F]reedom of expression has particular significance with respect to
government because it is here that the state has a special incentive to
repress opposition and often wields a more effective power of
suppression.' This is particularly true of law enforcement officials, who are
granted substantial discretion that may be misused to deprive individuals
of their liberties.

!Q. (citations omitted) (quoting First Nat'! Bank v. Belotti, 435 U.S. 765, 777 n.11 (1978)).
"In our society, police officers are expected to endure significant burdens caused by
citizens' exercise of their First Amendment rights.'' !Q. at 84.

"The same restraint

demanded of police officers in the face of provocative and challenging speech, must be

2

 expected when they are merely the subject of videotaping that memorializes, without
impairing , their work in public spaces." .!Q. (quotation omitted).
The State does not dispute that defendant filmed police performing their duties in
public.

Nonetheless, the State argues that the First Amendment does not protect

defendant's conduct because defendant concealed the fact that he was recording. The
State contends the U.S. Court of Appeals for the First Circuit in Glik and Gericke "found
that, in the absence of a statutory exception, the 151 Amendment to the Federal
Constitution does not protect an individual who intercepts public officials' oral
communications unless ... the act of recording is done openly." (State's Obj. at 2.)
The State further asserts:
[t]he decision in Glick [sic] turned on the question of the openness of the
actor's conduct, that is whether it was readily apparent to the officers
whose communications were recorded that the actor was engaged in
recording them. The Court determined that, because the Glick's [sic]
conduct was open and obvious to the officers . . . his conduct was
constitutionally protected.

(.!Q. at 2- 3.)
The State's representation of Glik and Gericke is manifestly incorrect.

The

question of "openness" did not enter into the First Amendment analysis in either case.
In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts
following an arrest under Massachusetts' wiretap statute for recording police. 655 F.3d
at 79. In its First Amendment analysis, the Glik Court wrote, "(i]s there a constitutionally
protected right to videotape police carrying out their duties in public? Basic First
Amendment principles, along with case law from this and other circuits, answer that
question unambiguously in the affirmative." !Q. at 82. Glik later s uggests that the First
Amendment does not protect filming that interferes with police duties . .!Q. at 84. The

3

 Court, however, explicitly declined to specify further limitations stating, "[t]o be sure, the
right to film is not without limitations. . . . We have no occasion to explore those
limitations here, however."

.!Q. at 84.

Likewise, Gericke allows for reasonable

restrictions on the right to record police, but never discusses whether such recordings
must be open. 753 F.3d at 8-9.
The question of openness did enter into Glik's Fourth Amendment analysis. 655
F.3d at 86. In his Fourth Amendment claim, the Glik plaintiff alleged he was arrested for
violating Massachusetts' wiretap statute without probable cause. .!Q. Massachusetts'
wiretap statute extends only to "secret" recordings, so the Court's Fourth Amendment
analysis turned on whether the police had probable cause to believe the plaintiff secretly
recorded them . .!Q.
The State argues Glik's analysis of whether the recording was secret shows that
the First Amendment does not protect secret recording s.

If the First Amendment

protects secret recordings, the State argues, there could have been no probable cause
to arrest the plaintiff, and so the Court would have had no reason to decide whether the
recording was secret. To the contrary, the fact that a criminal charge violates the First
Amendment does not mean that the arrest underlying the charge violates the Fourth
Amendment. See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) ('The enactment of a
law forecloses speculation by enforcement officers concerning its constitutionality-with
the possible exception of a law so grossly and flagrantly unconstitutional that any
person of reasonable prudence would be bound to see its flaws."). Thus, the Glik's
analysis about whether the recording was secret for Fourth Amendment purposes does
not show that secret recordings are beyond the First Amendment's protection.

4

 To the extent the State relies on Commonwealth v. Hyde, 750 N.E.2d 963 (Mass.
2001 }, to demonstrate that the First Ame~dment does not protect secret recordings, this
reliance is misplaced. The Massachusetts Supreme Judicial Court in that case upheld
the conviction of a defendant under Massachusetts' wiretap statute after he secretly
recorded an interaction with police. JQ. at 964. The defendant's challenge in Hyde was
based on statutory interpretation of Massachusetts' wiretap statute.

JQ. at 965. The

case did not address the First Amendment. See jg. Notably, Hyde was decided before
Glik and Gericke clarified the First Circuit's position that the First Amendment protects
the recording of police officers.
As such, absent contrary authority from the State, the Court finds that the First
Amendment protects secretly filming police in public, for the same reasons that the First
Amendment generally protects filming police. The public has the right to gather and
disseminate information about the police. Glik, 655 F.3d at 82.
It is "clearly established .. . that the First Amendment right to film police carrying
out duties in public ... remains unfettered if no reasonable restriction is imposed or in
place." Gericke, 753 F.3d at 8. "Reasonable restrictions on the exercise of the right to
film may be imposed when the circumstances justify them." JQ. at 7-8. The right to film
"may be subject to reasonable time, place, and manner restrictions." See Glik, 655 F.3d
at 84.

However, the State points to no existing restrictions that specifically forbid

secretly filming police. Thus the Court need not consider whether such a restriction
would qualify as a reasonable manner restriction.
The First Amendment also does not protect the filming of police that causes
legitimate safety concerns or that "interfere[s] with police duties." Gericke, 753 F.3d at

5

 8. However, the State points to no specific safety concerns caused by defendant's
filming and does not allege defendant's filming interfered with police duties. The State
argues secret filming of police allows confidential information to be recorded without
police knowledge and allows criminals to secretly record undercover officers, thereby
creating danger to those undercover officers.

However, the State does not allege

defendant actually filmed any confidential information or undercover officers. As such,
the cond uct for which defendant has been criminally charged is protected by the First
Amendment.
Defendant also argues that the charge must be dismissed based on the
sufficiency of the indictment. However, because the charge must be dismissed based
on the First Amendment, the Court need not consider the sufficiency of the indictment.
Accordingly, for the foregoing reasons, defendant's motion to dismiss is
GRANTED.

SO ORDERED.

.

Date

/

ID)-z1\b

L. Abramson

6