State v. Lott

879 A.2d 1167, 152 N.H. 436, 2005 N.H. LEXIS 111
CourtSupreme Court of New Hampshire
DecidedJuly 15, 2005
DocketNo. 2004-380
StatusPublished
Cited by11 cases

This text of 879 A.2d 1167 (State v. Lott) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lott, 879 A.2d 1167, 152 N.H. 436, 2005 N.H. LEXIS 111 (N.H. 2005).

Opinion

Dalianis, J.

The defendant, Christopher Lott, was convicted of one class B felony count of using computer services in a manner prohibited by the law. See RSA 649-B:4 (Supp. 2004). The defendant appeals an order of the Superior Court (T. Nadeau, J.) denying his motion to suppress evidence that he contends had been obtained by the State in violation of RSA 570-A:2 (2001) (amended 2002, 2003, 2004), which prohibits wiretapping and eavesdropping. We affirm.

On May 13, 2002, Detective Frank Warchol signed on to ‘Tahoo! Messenger” (Yahoo! IM), posing as a fourteen-year-old girl with the screen name “Kimmiesue87.” Warchol entered an “internet chat room” (chat room) and quickly received a private instant message from the defendant, who was using the screen name “Chris8in2002875.” The defendant directed the conversation toward sexual acts, sent a “web-cam” photo of himself and solicited “Kimmiesue87” for sex. The defendant then arranged to meet “Kimmiesue87” at the State Liquor Store in Portsmouth. The following day the defendant arrived at the agreed upon location and [437]*437was arrested. The defendant indicates in his brief, as did the State at oral argument, that Warchol took two actions regarding the instant message conversation: (1) he engaged in an instant message conversation with the defendant, and later copied the history from the chat window on his computer screen and pasted it into an electronic document; and (2) he enabled a message archiving feature that automatically creates a record of the instant message conversation, which he later saved as an electronic document.

The defendant filed a motion to suppress the recorded evidence of the instant message conversation, arguing that the police had obtained the evidence in violation of RSA 570-A:2. The trial court denied his motion and allowed the State to use the documents.

The defendant and Warchol met in a chat room, and then entered into private conversation through the use of instant message communications. Though the use of chat rooms and instant messaging is now a relatively common form of communication, we will first describe these terms to avoid any confusion.

In addition to allowing users to view text and images on web pages, the Internet allows users to converse with one another in real time. One method of doing so is through a “chat room.” A chat room is a meeting place for Internet users. Users typically log into a chat room under a pseudonym or “screen name.” Chat rooms are usually organized around topics of interest to users including, for example, college football, the music of Bob Dylan, or gardening. Users can chat in the chat room itself, an open forum where all other users can read the messages as they are typed, or users can meet in the chat room and then chat privately.

United States v. Johnson, 376 F.3d 689, 691 n.1 (7th Cir. 2004).

Instant messaging is a form of computer communication in which individuals hold an online conversation via the internet. When a person sends an instant message to another person online, that message is transmitted instantaneously to the recipient, opening a [chat] window that allows both parties to see the message and to respond immediately. The [chat] window, while open, contains a complete history of all messages sent and received during the online conversation.

State v. Bouse, 150 S.W.3d 326, 329 n.2 (Mo. Ct. App. 2004).

On appeal, the defendant argues that the trial court erred when it denied his motion to suppress the recorded evidence of the instant [438]*438message conversation. When reviewing a trial court’s ruling on a motion to suppress, we accept the trial court’s findings unless they lack support in the record or are clearly erroneous. Our review of the trial court’s legal conclusions, however, is de novo. State v. Velez, 150 N.H. 589, 592 (2004). As the facts of this case are undisputed, we review the trial court’s decision only for errors of law. Appeal of N.H. Youth Dev. Ctr., 152 N.H. 86, 87 (2005).

RSA 570-A:2 prohibits the interception of telecommunications or oral communications, with several exceptions, including that the interception of a communication shall not be unlawful if it was intercepted with “the consent of all parties to the communication____” RSA 570-A:2,1. Both the State and the defendant agree that the instant message communications at issue qualify as telecommunications. See RSA 570-A:l, I (2001). Thus, the only issues are whether Warchol’s actions constitute an interception of the defendant’s communications, and, if so, whether that interception occurred without the defendant’s consent. If we answer both questions in the affirmative, then the recorded evidence of the communications is inadmissible under RSA 570-A:6 (2001). If we answer either question in the negative, however, then the recorded evidence is admissible. See RSA 570-A:6.

As Warchol engaged in two distinct actions, as described above, we will address each action separately. We first address whether Warchol intercepted a communication in violation of RSA chapter 570-A when he engaged in an instant message conversation with the defendant, and later copied the history from the chat window on his computer screen and pasted it into an electronic document.

“Intercept” is defined by statute as “the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.” RSA 570-A:l, III (2001). An electronic, mechanical, or other device is defined by statute as “any device or apparatus which can be used to intercept a telecommunication____” RSA 570-A:l, IV (2001).

When the defendant sent an instant message to Warchol, that instant message was immediately received by Warchol, recorded by the Yahoo! IM program and/or Warchol’s computer, and displayed in both the defendant’s and Warchol’s chat windows. As Warchol recorded the defendant’s telecommunication with his computer and/or computer instant messaging program, electronic devices that can be used to record a conversation, his action fits perfectly within the statutory definition of “intercept.”

[439]*439The State argues, and the trial court found, that neither the computer nor the computer instant messaging program should qualify as an electronic device that can be used to intercept a communication, because each device is a medium for the communication. We disagree.

We recognize that the statutory definitions of “intercept” and “electronic, mechanical, or other device” have not changed in any meaningful way since 1988, when internet communications technology was in a nascent stage of development. Although the prevalence of internet communications technology has expanded rapidly since that time, and although the statute might appear outdated, when, as here, the language of the statute is plain and unambiguous, we are bound by that language, and do not add words that the lawmakers have not seen fit to add, nor consider what the legislature might have said were it presented with the facts before us in this case. See State v. Hofland, 151 N.H. 322, 324 (2004).

We agree with the Washington Supreme Court in State v. Townsend,

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Cite This Page — Counsel Stack

Bluebook (online)
879 A.2d 1167, 152 N.H. 436, 2005 N.H. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lott-nh-2005.