Despite coming up with a novel argument to justify wiretapping charges against Alfredo Valentin, the New Hampshire man arrested in March for recording police as they searched his home, prosecutors were smacked down by a judge in a ruling issued last Wednesday.
“They tried to take the language from Massachusetts law, and they kind of tried to sneak it into New Hampshire law,” said Brandon Ross, Valentin’s attorney.
In an attempt to convict the Manchester man, prosecutors tried to take advantage of the Massachusetts wiretapping law, which is different than New Hampshire’s law.
In Massachusetts, the wiretapping law criminalizes all secret recording of conversations, even those that take place in public.
The prosecution claimed that Valentin secretly audio recorded two Manchester police sergeants by holding his phone by his leg, although it apparently wasn’t so secret that the cops didn’t notice.
Ross disputed that allegation saying, “My client said that he was holding the phone right in front of him, right in front of his chest.”
The prosecution argued that the landmark Glik ruling, which held that Boston police could be sued for arresting a man who recorded them, left it ambiguous as to whether secret recording is protected by the First Amendment.
But Hillsborough Superior Court Judge Gillian L. Abramson ruled that the prosecution was misrepresenting the Glik ruling.
The Glik ruling, he explained, only discussed the issue of secret recording to determine if Boston police had probable cause to arrest Glik for violating the Massachusetts law, not to show that secret recording wasn’t protected by the First Amendment.
“[T]he 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,” Abramson wrote, explaining his decision to dismiss the charges against Valentin.
“If there’s no reasonable expectation of privacy, you can record somebody with a secret camera or a secret microphone [in New Hampshire],” Ross said.
Now that the criminal charges have been dismissed, Valentin will likely be able to move forward with his lawsuit against the Manchester Police Department, which seeks more than a million dollars in damages.
When Valentin filed the suit in June, the charges against him had been dropped, but prosecutors later indicted him, which put the suit on hold.
“A couple weeks ago, we actually agreed to stay the case pending the outcome of these criminal charges,” Ross said. “Federal courts typically don’t want to decide civil rights cases where there are pending criminal charges at the same time.”
However, Ross said prosecutors may try to appeal the judge’s ruling, so he will need to wait a bit before making his next move.
Valentin was arrested in March after Manchester police conducted a no-knock raid on his home while looking for evidence in a drug investigation of his tenant, Christopher Chapman.
Police arrested Chapman outside of Hillsborough County Superior Court prior to searching Valentin’s home, but they still conducted the raid anyway, “firing incendiary devices through the property’s windows, kicking in the doors, and entering the property SWAT-style with semi-automatic weapons—damaging property, terrifying the two women who were still in the house, and creating an unjustifiable risk of accidental death or injury,” according to the lawsuit.
Several photos provided by Ross show damage caused during the raid (see below).
The police department’s website claims that its SWAT team is only used in special circumstances like “the execution of high risk narcotics search warrants,” but the department’s press release about the raid on Valentin’s home make no reference to weapons or other factors that would have justified the violent and destructive tactics.
Valentin was at work at the time of the raid, but went home after receiving a call from his neighbor, who said his dog had gotten loose.
After seeing vehicles parked in his driveway and evidence of forced entry to his home, Valentin confronted the intruders. One of them told Valentin he was a police officer, but refused to identify himself.
Valentin asked to speak to a supervisor and was approached by Sergeant Christopher Sanders, who said he had a search warrant but refused to show it. Sanders told Valentin to come back in an hour.
Valentin returned an hour later and used his smartphone to audio record. He was approached by Sanders and Sergeant Brian LeVeille, who eventually showed him the warrant but then arrested him for wiretapping after he started walking away. Both sergeants are named in the lawsuit as defendants.
A third man was later arrested by the Massachusetts State Police in Lawrence, Massachusetts as part of the drug investigation.
Valentin had surveillance cameras installed in his home that likely captured video of the raid, but they were seized by police. The police still have not turned over the footage or the audio recording Valentin captured on his phone.
According to Valentin’s lawsuit, his arrest cost him his job as an accounts payable manager at Longchamps Electric, Inc., where he had worked for 11 years. The lawsuit also claims that his termination caused him to lose his health insurance, leaving him unable to pay for medication to treat his chronic asthma and diabetes.
Ross, who is involved with the libertarian Free State Project and has helped fight wiretapping charges before, said that he’d like to see New Hampshire’s wiretapping law replaced with a one-party consent law, which would make police and prosecutors less likely to abuse it.
“It’s completely ridiculous that it has to come to this,” Ross said. “This needs to stop happening.”