§ 570-A:9 — Procedure for Interception of Telecommunication or Oral Communications

New Hampshire § 570-A:9

• Jurisdiction: New Hampshire
• Title LVIII: PUBLIC JUSTICE
• Ch. 570-A: WIRETAPPING AND EAVESDROPPING

Text

I. Each application for an order authorizing or approving the interception of a telecommunication or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
(a) The identity of the law enforcement officer making the application, and the officer authorizing the application;
(b) A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that an order should be issued, including: (1) Details as to the particular offense that has been, is being, or is about to be committed, (2) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (3) A particular description of the type of communications sought to be intercepted, (4) The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, the application shall include a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, telecommunications or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
II. The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
III. Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of telecommunication or oral communications, if the judge determines on the basis of the facts submitted by the applicant that:
(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in RSA 570-A:7;
(b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) There is probable cause for belief that the facilities from which, or the place where, the telecommunications or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
IV. Each order authorizing or approving the interception of any telecommunication or oral communication shall specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(d) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
(e) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
V. No order entered under this section may authorize or approve the interception of any telecommunication or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 10 days. Extensions of an order may be granted, but only upon application for an extension made in accordance with paragraph I, and the court making the findings required by paragraph III. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 10 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 10 days.
VI. Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.
VII. (a) The contents of any telecommunication or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any telecommunication or oral communication under this paragraph shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under the judge's directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of RSA 570-A:8, I and II, for investigations. The presence of the seal provided for by this paragraph, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any telecommunication or oral communication or evidence derived therefrom under RSA 570-A:8, III.
(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
(c) Any violation of the provisions of this paragraph may be punished as contempt of the issuing or denying judge.
VIII. The contents of any intercepted telecommunication or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.
IX. (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof, may move to suppress the contents of any intercepted telecommunication or oral communication, or evidence derived therefrom, on the grounds that:
(1) The communication was unlawfully intercepted;
(2) The order of authorization or approval under which it was intercepted is insufficient on its face; or
(3) The interception was not made in conformity with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted telecommunication or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may, in the judge's discretion, make available to the aggrieved person or such person's counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
(b) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion to suppress made under subparagraph IX(a), or the denial of an application for an order of approval, if the attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.
X. If an order authorizing interception is entered pursuant to this chapter, the order, upon request of the attorney general or deputy attorney general, shall direct that a communication common carrier shall furnish to the law enforcement agency designated by the attorney general all information, facilities or technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such communication common carrier is according the person whose communications are to be intercepted. The communication common carrier shall furnish such facilities or technical assistance at its prevailing rate or tariff.

Legislative History

1969, 403:1. 1975, 385:3. 1995, 280:4-7, 10, I, III, eff. Aug. 20, 1995.