Beal v. Bahan CV-94-526-JD 05/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert P. Beal
v. Civil No. 94-526-JD
G. Michael Bahan, et al.
O R D E R
The plaintiff, Robert P. Beal, brought this action against
the defendants, G. Michael Bahan and NYNEX, seeking damages
related to the procurement and execution of a warrant to search
Beal's residence. Before the court are the defendants' motions
for summary judgment (document nos. 2 0 and 21).
Background
On June 20, 1994, Bahan, an investigator for the New
Hampshire Attorney General's Office, obtained a warrant to search
the plaintiff's home in Manchester, New Hampshire, for evidence
that the plaintiff, a private investigator, had gained
unauthorized access to a computer system in violation of New
Hampshire Rev. Stat. Ann. § ("RSA") 638:17. The warrant
permitted Bahan to seize from Beal's residence a variety of
computer eguipment and computer-related items normally employed
to permit unauthorized access to computer networks, as well as
various items and documents related to Beal's business, including rolodexes, day books and journals, notebooks, electronically
printed paper, billing invoices, accounts receivable, accounts
payable, corporate information, and data provided to subscribers
of the plaintiff's information services.
In support of his application for a warrant, Bahan supplied
a lengthy and detailed affidavit describing an investigation that
commenced in 1990, when New England Telephone, NYNEX's
predecessor, learned that Beal's agency was selling unpublished
telephone listings. Bahan Affidavit in Support of Warrant
("affidavit 1"). The affidavit describes several occasions on
which Warren Brown, a NYNEX security manager, acting in concert
with federal and, later, state law enforcement agents, executed
controlled purchases of unpublished telephone listings, toll
records, and criminal records from the plaintiff. The affidavit
indicates that the plaintiff was able to provide unpublished
listings and toll records either by contacting an information
service over the telephone or through "social engineering," a
process through which outsiders gain access to NYNEX listings by
telling NYNEX telephone operators that they are NYNEX employees.
The affidavit also suggests that Beal obtained criminal records
through a source at the Franklin, New Hampshire, police
department. However, the affidavit does not contain any direct
allegations that the plaintiff ever used his own computer to
2 access the NYNEX network or that of the Franklin police
department, and reveals that federal authorities, who had ceased
their investigation in 1993, had concluded that Beal was not
obtaining information through "hacking." Affidavit 1, 55 49-52.
At 8 a.m. on June 23, 1994, Bahan and several state police
officers executed the search warrant. Bahan enlisted Brown and
Peter Schofield, another NYNEX employee, to assist in identifying
any potentially incriminating evidence in the plaintiff's
residence.
After the search began the plaintiff was ordered to stay
away from the cellar of his home, where his office was located.
The plaintiff left the premises and returned with his attorney,
who, after first being denied access to the cellar, made his way
downstairs and found Brown and Schofield in the plaintiff's
office, where Brown was inspecting the plaintiff's files. The
plaintiff's attorney demanded that the NYNEX employees' role
cease, but his reguest was not heeded. The search continued,
both in the office, where at least one state police officer was
present at all times, and throughout the rest of Beal's
residence. The search ended at approximately 11:30 a.m., by
which time virtually all of the plaintiff's office eguipment and
records had been seized. Neither the plaintiff nor the
plaintiff's counsel had an opportunity to inspect the items that
3 were seized. The NYNEX employees also videotaped part of the
search.
The plaintiff has not been charged with any crime involving
a violation of RSA 638:17. He brought this action alleging a
variety of state and federal claims against Bahan and NYNEX
arising out of the application for and execution of the search
warrant. In Count I, he claims that Bahan violated his rights
under the Fourth, Fifth, and Fourteenth Amendments by making
intentional misrepresentations under oath in obtaining a warrant,
by ordering that he be removed from the interior of his home
during the search, by directing NYNEX employees to search through
and inspect his files, and by permitting them to inspect
documents outside the scope of the warrant. In Count II Beal
alleges that the NYNEX employees, who knew that Beal had not
violated RSA 639:17, violated his rights under the Fourth, Fifth,
and Fourteenth Amendments by entering his house and searching his
files without authorization, by inspecting documents and areas
outside the scope of the warrant, and by instructing the police
to seize records not described in the warrant. Count III alleges
that Bahan violated the plaintiff's state law rights under Part
I, Article 19 of the New Hampshire Constitution, committed a
fraud on the plaintiff by failing to identify certain members of
the search team as NYNEX employees, invaded the plaintiff's
4 privacy by publicly portraying him in a false light, and, in
lying in support of his application for a search warrant,
committed a felony for which the plaintiff is entitled to
compensation. Count IV alleges that NYNEX employees communicated
false information to the New Hampshire Attorney General's Office,
committed a fraud by failing to identify themselves at the
search, committed the tort of intrusion, and violated RSA 644:9
by videotaping the search and RSA 635:2 by entering the
plaintiff's property without proper authorization.
Discussion
Summary judgment is appropriate when material facts are
undisputed and the moving party is entitled to judgment as a
matter of law. Rodriguez-Garcia v. Davila, 904 F.2d 90, 94 (1st
Cir. 1990) (citing Fed. R. Civ. P. 56(c)). The burden is on the
moving party to establish the lack of a genuine, material factual
issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.
1986), and the court must view the record in the light most
favorable to the nonmovant, according the nonmovant all
beneficial inferences discernable from the evidence. Caouto v.
Boston Edison Co., 924 F.2d 11, 13 (1st Cir. 1991). However,
once the movant has made a properly supported motion for summary
judgment, the adverse party "must set forth specific facts
5 showing that there is a genuine issue for trial." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R.
Civ. P . 56 (e)).
The court addresses the defendants' motions for summary
judgment as they relate to the plaintiff's individual claims.
I. Federal Claims Against Bahan In Count One
A. False Statements and Material Omissions in Support of the Search Warrant
The plaintiff alleges that Bahan made false statements and
material omissions in support of his application for a search
warrant, and that Bahan's misrepresentations violated the Fourth
Amendment and thus give rise to an action under 42 U.S.C. § 1983.
See Franks v. Delaware, 438 U.S. 154 (1978) (finding of probable
cause invalid if based on material misrepresentations); Krohn v.
United States, 742 F.2d 24, 26 (1st Cir. 1984) (recognizing civil
action based on Franks violation). In support of his motion for
summary judgment on the plaintiff's Franks claim, Bahan has
submitted a copy of the search warrant, including affidavit 1
which he prepared in support of his warrant application, along
with an affidavit he prepared in connection with this lawsuit
("affidavit 2") .
Plaintiff asserts that Bahan gave oral testimony under oath
to the state district court judge ("district court") to the
6 effect that the plaintiff used his computer and modem to access
NYNEX data banks. Bahan in affidavit 2 denies that he provided
any oral testimony to the district court. While there is
parenthetical language in what appears to be a standard warrant
form that oral statements under oath were given, plaintiff's
assertion concerning the content of any such statements is at
best conjectural. The plaintiff has been unable to produce the
judge's notes or other concrete evidence concerning the content
of those statements. See RSA 595-A:4. Plaintiff's counsel
represents in his brief in opposition to the motion for summary
judgment at p. 21 that he was informed by the district court that
Bahan had not provided any of his "personal knowledge" by oral
testimony. In light of this representation by plaintiff's
counsel and Bahan's statement in affidavit 2 that he gave no oral
testimony, it appears likely the district court may have
overlooked crossing out the parenthetical reference to oral
statements on the standard warrant form. The plaintiff's
conjectual assertions concerning Bahan's oral testimony are
insufficient to generate a disputed issue of material fact.
Bahan presented the district court with a very detailed
affidavit. As part of the representations he made in the
affidavit, he stated that FBI Special Agent Robert Keane informed
him on April 28, 1993, that the plaintiff had not obtained non
7 published numbers and telephone toll records through hacking but
through fraud. Affidavit 1, 5 49. When the justice department
decided to close the case because it did not meet certain
prosecutorial guidelines, it had yet to be determined if the
plaintiff obtained non-published numbers by means of social
engineering. Affidavit 1, 5 50. When the federal investigation
ended, Keane said he had not yet determined how or from whom the
plaintiff obtained telephone toll records although the plaintiff
obtained most of his information from computer databases.
Affidavit 1, 5 52. Bahan also states in affidavit 2 that NYNEX
employees did not tell him that the plaintiff was or was not
gaining access to the NYNEX database through his computer.
Affidavit 2, 5 8.
Affidavit 1 was detailed and complete. It contained the
investigative history of the case up to the time the search
warrant was applied for. Bahan did not represent to the district
court that the plaintiff was hacking. The affidavit makes it
clear that it was not known how the plaintiff was obtaining toll
records from NYNEX. The affidavit does state that an individual
involved in computer fraud and long distance toll fraud normally
employs certain eguipment listed in the affidavit. Affidavit 1,
5 94.
8 The court finds that the plaintiff has failed to generate a
material factual dispute over whether Bahan made material
misrepresentations or omissions in affidavit 1 and misled the
district court.
B. Probable Cause for Issuance of the Search Warrant
The plaintiff claims that there was no probable cause for
the issuance of the search warrant. In St. Hilaire v. City of
Laconia, 71 F.3d 20, 28 (1st Cir. 1995), petition for cert.
filed, 64 U.S.L.W. 3706 (1996), the court states:
Whether or not there was probable cause for the warrant, defendants are entitled to qualified immunity unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Mallev v. Briggs, 475 U.S. 335, 344-345, 106 S. C t . 1092, 1098, 89 L.Ed.2d 271 (1986).
Bahan's affidavit must be viewed at least in part in the
context of the law defining the criminal offense which he was
investigating. RSA 638:17, I, II, and IV define the computer-
related criminal offenses for which Bahan believed probable cause
existed for the issuance of a warrant. RSA 638:17 states in
relevant part:
I. A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he knowingly accesses or causes to be accessed any computer system without authorization. II. A person is guilty of the computer crime of theft of computer services when he knowingly accesses or causes to be accessed or otherwise uses or causes to be used a computer system with the purpose of obtaining unauthorized computer services. •k -k -k
IV. A person is guilty of the computer crime of misuse of computer system information when:
(A) As a result of his accessing or causing to be accessed a computer system, he knowingly makes or causes to be made an unauthorized display, use, disclosure, or copy, in any form, of data residing in, communicated by, or produced by a computer system.
(Emphasis supplied). It is evident that the broad language of
the statute applies to the actions of any individual who directly
or indirectly gains unauthorized access to a computer system or
its data.
The parties view and interpret the array of facts relating
to the issuance of the warrant differently. While in some
instances there are disputed facts, the court finds that there
are no genuine issues of material fact in dispute. The plaintiff
has viewed the facts from a perspective that is consistent with
his claim of innocence while Bahan has viewed the facts from the
perspective of an investigator who concluded they constituted
probable cause to believe criminal offenses had been committed.
As long as he was acting in an objectively reasonable manner,
Bahan was entitled to bring his knowledge and experience to bear
in interpreting the facts of which he was aware. Bahan states in
10 affidavit 1 that he did bring his knowledge and experience to
bear. While the plaintiff challenges this assertion, he has not
produced evidence to successfully refute it. Taking into account
the statute in guestion and the factual information that Bahan
had available to him, the court finds that the affidavit in
support of the warrant contained reasonable indicia of probable
cause and that Bahan's belief that he had probable cause was
objectively reasonable. Therefore, Bahan is entitled to
gualified immunity in connection with obtaining the search
warrant and acting pursuant to it.
C. Conduct of the Search and Seizure
The plaintiff bases his unreasonable search and seizure
claims against Bahan on his assertions that Bahan (1) ordered him
away from the premises and directed the NYNEX employees to search
his office; and (2) ordered the NYNEX employees to inspect
confidential files in the plaintiff's office, including documents
that were outside the scope of the search warrant. Bahan argues
that summary judgment is warranted on the remainder of the
plaintiff's federal claims against him because he is entitled to
gualified immunity and, in any event, because he did not violate
the plaintiff's rights.
While the plaintiff in his affidavit (Beal affidavit, 55 15-
19) claims that Bahan ordered him out of his house, Bahan in
11 affidavit 2, 5 12, contradicts this. This dispute is not
material because even under the plaintiff's version of the facts,
the plaintiff did not have a clearly established right to be
present at the time of the search or to inspect the items seized.
The Supreme Court has held that the right to search for
contraband pursuant to a valid warrant includes the right to
detain a resident of the place to be searched, Michigan v.
Summers, 452 U.S. 692, 701-05 (1981). Those executing a warrant
have a legitimate interest not only in their own safety but also
in their ability to complete the search without interference by
the occupant or by his attorney. To the extent that the
plaintiff was instructed to remain outside the residence while it
was being searched, the incursion on his liberty was far less
intrusive than if he had been detained in a police car or at the
police station. Indeed, the plaintiff was at liberty to leave,
as he in fact did, to visit his minister and attorney, and to
return later with his attorney. The plaintiff has cited no case
that supports his contention that he had a right to be present
during the execution of the search warrant and the court has not
found any federal case law standing for the proposition that a
suspect has a clearly established right to be present during the
search of his home. Accordingly, the court finds that defendant
Bahan's behavior was objectively reasonable under federal law at
12 the time and under the circumstances of the action at issue, see,
e.g., Ranieri v. Hillsborough County Pep't of Corrections, No.
93-118-JD, slip. op. at 13 (D.N.H. Jan 9, 1996) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
Bahan's enlistment of two NYNEX employees to assist with the
search does not constitute a violation of the plaintiff's Fourth
Amendment rights. The undisputed record indicates that Bahan
invited Brown and Schofield to participate in the search because
of the expertise they could provide in identifying inculpatory
evidence. RSA 595-A:9 provides that "an officer executing a
search warrant may take with him suitable assistants and suffer
no others to be with him." Because of the expertise Brown and
Schofield possessed, they were gualified as "suitable assistants"
under the statute, and therefore Bahan acted properly in
reguesting them to assist him in executing the warrant. The
plaintiff has failed to rebut the testimony in affidavit 2 on
this matter with anything except conclusory allegations. Cf.
United States v. Clouston, 623 F.2d 485, 486-87 (6th Cir. 1980)
(reversing district court's finding that presence of phone
company employees rendered search unconstitutional where
employees were present pursuant to 18 U.S.C. § 3105 in aid of
officers authorized to search for electronic devices pursuant to
search warrant).
13 It is evident from a review of the warrant in this case that
it is quite broad. The First Circuit has recognized that
"seizing business records in a fraud investigation presents
special problems" and that "especially difficult is the case
where the files contain a mixture of 'bad' material (supported by
probable cause) and 'innocent' material." United States v. Diaz,
841 F.2d 1, 6 (1st Cir. 1988). Warrants of this nature are often
acceptably broad by necessity and agents executing them may need
to defer to the greater legal knowledge of a judge or magistrate
in order to know where to "draw the line." Id. Computer fraud
presents even greater difficulty because files can be generated
and stored on disks or in a memory and there is a variety of
equipment ancillary to the computer that can be used in
connection with the fraud. While the plaintiff and Bahan
disagree over whether attorney-client materials were actually
seized, the plaintiff has failed to generate a genuine issue of
material fact concerning whether Bahan and his assistants acted
unreasonably, even if it is assumed that some attorney-client
materials were seized, given the nature of the charge and the
breadth of the warrant they were executing.
The court finds that Bahan's conduct in executing the
warrant was objectively reasonable and therefore he is entitled
to qualified immunity.
14 Bahan's motion for summary judgment is granted as to count
one.
II. Federal Claims Against NYNEX in Count Two
In count two, the plaintiff claims that NYNEX employees
Brown and Schofield orchestrated and participated in the state's
investigation of the plaintiff, knowing that he was not using his
own computer to violate RSA 638:17, in order to put him out of
business, and further claims they participated in an unauthorized
search of his premises which also exceeded the scope of the
warrant. NYNEX argues that it is entitled to summary judgment on
the ground of gualified immunity because its employees were
performing a public function by assisting with the investigation
and because a reasonable official in their position would not
have understood that his conduct violated the plaintiff's clearly
established rights.
The First Circuit has recognized that in some circumstances
private actors who act under color of state law, and thus are
subject to liability under 42 U.S.C. § 1983, may also enjoy
gualified immunity. In Rodrigues v. Furtado, 950 F.2d 805 (1st
Cir. 1991), the court held that gualified immunity was available
to a private physician who performed a vaginal cavity search
pursuant to a search warrant. In reaching its conclusion, the
15 court noted that the physician was not acting out of self-
interest but, rather, had been pressed into service by the state,
and that granting the physician gualified immunity for his
actions would be consistent with public policy. Id. at 815;
accord Frazier v. Bailey, 957 F.2d 920, 928-29 (1st Cir. 1992)
(social workers under contract with government to perform duties
statutorily reguired of state entitled to gualified immunity).
However, in Felix de Santana v. Velez, 956 F.2d 16 (1st Cir.),
cert, denied, 506 U.S. 817 (1992), the First Circuit declined to
extend gualified immunity to a defendant who allegedly conspired
with an assistant district attorney to maliciously prosecute the
defendant's co-worker. The Velez court distinguished Rodrigues,
noting that the defendant acted out of self-interest, and
expressed a "hesitat[ion] to extend gualified immunity carte
blanche to private defendants in malicious prosecution cases
because of the potential abuses and conseguences inherent in
criminal prosecutions." Id. at 20.
Brown testifies in his affidavit that he is the staff
manager of security for NYNEX and in June of 1994 held the same
position with New England Telephone. Brown Affidavit 5 1. As
part of his duties, he refers matters involving potential
criminal activity to law enforcement authorities for
investigation and prosecution. Brown Affidavit, 5 2. In 1993,
16 he presented information to Bahan, an investigator with the New
Hampshire Attorney General's Office, concerning the plaintiff's
"potential involvement in causing the unauthorized access of
proprietary information contained in NYNEX data banks." Brown
Affidavit, 5 3. Any work Brown did on the case was "at the
reguest of and under the direction of" Bahan and all information
provided by him to Bahan was "true and accurate" to the best of
his knowledge and belief. Brown Affidavit, 5 4. Brown did not
participate in preparing, reviewing or obtaining the search
warrant. Brown Affidavit, 55 5, 6, 7. As noted above, Bahan was
not told by NYNEX that the plaintiff was or was not hacking.
Affidavit 2, 5 8. Furthermore, Bahan represented to the district
court that the plaintiff obtained non-published numbers and
telephone toll records through fraud and not through hacking.
Affidavit 1, 5 49. As previously stated, Bahan's conclusion as
to probable cause was based on the facts he set forth in
affidavit 1 and his knowledge and experience.
The undisputed evidence indicates that neither Brown nor
Schofield played any role in obtaining the search warrant. While
the plaintiff makes conclusory statements that NYNEX falsely
accused him of using his computer to enter NYNEX data banks in
order to put him out of business, he has failed to generate a
genuine issue of material fact on this claim. It is not disputed
17 that Brown and Schofield were pressed into service by Bahan to
assist in executing the warrant, and the court has found, supra,
that Bahan's actions in so doing did not constitute a violation
of plaintiff's Fourth Amendment rights. Since the warrant in
guestion was objectively reasonable and facially valid, the
actions of Brown and Schofield in responding affirmatively to
Bahan's reguest were objectively reasonable and not in violation
of any clearly established law.
When the warrant was executed. Brown and Schofield at first
were reguired to wait outside the premises for approximately one
and one-half hours before being asked by Bahan to enter and
provide assistance. Brown Affidavit, 5 11. Brown was directed
to examine documents that had been located by law enforcement
officers and Schofield was directed to examine certain eguipment
and wiring. Id., 55 11-12. Brown understood that the documents
he was examining were within the scope of the warrant. Id., 5
11. Brown identified certain records that had potential interest
to the Attorney General's Office but law enforcement officers
made the final decision on which records to seize. Id. , 5 15.
Brown and Schofield acted under the direction of the Attorney
General's Office at all times. Id., 5 13. Attorney Tefft in his
affidavit testifies that he observed Brown reviewing files in a
filing cabinet in the plaintiff's office and that several state
18 police officers examined and logged documents that were found.
Tefft Affidavit, 55 10, 12, 14. The court finds that Attorney
Tefft's observations are not inconsistent with what Brown has
testified to in his affidavit.
The court relies on its previous rulings, supra, concerning
the execution and scope of the search. The undisputed record
reflects that Brown and Schofield were acting under the direction
of Bahan and the law enforcement officers present. The plaintiff
has failed to generate a genuine issue of material fact
concerning the role of Brown and Schofield and the scope of the
search as conducted by Brown and Schofield. Brown and Schofield
acted in an objectively reasonable manner in performing their
duties during the execution of the warrant and not in violation
Mindful of the chilling effect that declining to extend
gualified immunity to NYNEX might have on private parties in a
position to cooperate with the police, see Rodrigues, 950 F.2d at
815, the court finds that NYNEX is entitled to gualified immunity
against the plaintiff's federal claims. Defendant NYNEX's motion
for summary judgment is granted as to count two.
19 III. State Claims Against Bahan in Count Three
A. Constitutional Claim
The plaintiff claims that the Bahan violated Part I, Article
19 of the New Hampshire constitution by orchestrating an
unreasonable search of his residence and seizure of his
possessions. However, this court repeatedly has declined to
recognize an independent cause of action based on violations of
the New Hampshire constitution without guidance from the New
Hampshire Supreme Court. See, e.g., Kelley v. City of
Manchester, No. 94-358-M, slip op. at 28 (D.N.H. Sept. 29, 1995)
(no cause of action based on violation of state constitution's
guarantees of free speech, free association, and due process);
Penney v. Middleton, 888 F. Supp. 332, 342 (D.N.H. 1994) (egual
protection); Kimball v. Somersworth, No. 90-477-M, slip. op. at
5-9 (D.N.H. Feb. 17, 1993) (due process; unreasonable search and
seizure). The court finds these precedents persuasive and grants
summary judgment to Bahan on the plaintiff's constitutional
claim.
B. Fraud
Bahan argues that summary judgment is warranted on the
plaintiff's fraud claim because it fails to state a cause of
action. The plaintiff has not supplied and the court has not
20 found any authority for the proposition that an officer executing
a search warrant must identify any assistants who are not law
enforcement personnel, let alone the proposition that an
officer's failure to disclose this information can form the basis
for a fraud claim or any other cause of action. Accordingly, the
court grants summary judgment on the plaintiff's fraud claim
against Bahan.
C. False Light Invasion of Privacy
The New Hampshire Supreme Court has recognized in dicta that
a person's privacy may be invaded when another person generates
publicity that places him in a false light. Hamberger v.
Eastman, 106 N.H. 107, 110, 206 A.2d 239, 241 (1964); see also
Robinson v. Caronia, No. 92-306-B, slip op. at 20 (D.N.H. Jan. 4,
1996). Here, the plaintiff has failed to allege that Bahan
publicly generated any information about the plaintiff, let alone
that the information generated placed him in a false light. The
plaintiff argues that the mere fact his residence was searched
placed him in a false light in the community. However, the court
declines to extend the false light tort to embrace such a
situation, and grants summary judgment to Bahan on the
plaintiff's false light claim.
21 D. Compensation of Crime Victim
The plaintiff argues that he is entitled to compensation
under RSA 21-M:8-h because is the victim of a felony, namely,
Bahan's lying in a support of an affidavit for a search warrant
in violation of RSA 641. The argument is without merit. Such a
claim should be brought before the victim's assistance commission
under RSA 21-M:8-g. The court grants Bahan's motion for summary
judgment on the plaintiff's claim under RSA 21-M:8.
IV. State Claims Against NYNEX in Count Four
A. Fraud
For the reasons discussed supra, the court grants summary
judgment in favor of NYNEX on the plaintiff's fraud claim.
B. Intrusion
Under New Hampshire law, a person can commit the tort of
intrusion by invading another person's residence. Hamberger, 106
N.H. at 107, 206 A.2d at 241. However, liability only attaches
if the invasion would be highly offensive to a reasonable person.
See Restatement (Second) of Torts § 652A (1977)). Here, the
NYNEX employees entered and videotaped the plaintiff's home at
the reguest of and to assist a law enforcement agent executing a
valid warrant. As a matter of law, such an invasion is not
22 unreasonable. Accordingly, the court grants summary judgment to
NYNEX on the plaintiff's intrusion claim.
C. Violations of RSA 644:9 and RSA 635:2
Where, as here, a plaintiff alleges that the violation of a
penal statute forms the basis for a cause of action, the court
must consider whether the statute contains an express or implied
right of action. Everett v. Littleton Constr. Co., 94 N.H. 43,
46, 46 A.2d 317, 319 (1946); see also Marquav v. Eno, 13 9 N.H.
708, 713-14, 662 A.2d 272, 277 (1995). Neither of the statutes
cited by the plaintiff includes an express right of action based
on a violation of the statute. To the extent either statute
provides an implied right of action, the court notes that neither
prohibits conduct undertaken at the reguest of a law enforcement
agent. See RSA 635:2(1) (person guilty of criminal trespass if
he enters or remains in a place knowing that he is not privileged
or licensed to do so); id. 644:9 (prohibiting unlawful use of
photographic device in private place). Accordingly, the court
grants summary judgment to NYNEX on the plaintiff's claims based
on these statutes.
23 Conclusion
The summary judgment motions filed by the defendants
(document nos. 20 and 21) are granted. There are no remaining
claims. The case is closed.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge May 31, 1996
cc: Stanton E. Tefft, Esguire Stephen J. Judge, Esguire Peter W. Mosseau, Esguire James Caffrey, Esguire