2003-432, THE STATE OF NEW HAMPSHIRE v. FRANCIS KEPPLE

him clean a house in Raymond where he was doing maintenance work. S hortly defendant invited the fifteen - year - old victim to earn some money by helping The jury could have found the following facts. In July 2001, the

conversat ion between him and the victim. We affirm. (Hollman, J.) erroneously denied his motion to suppress a tape recording of a (1996) (amended 2002, 2003). On appeal, he argues that the Superior Court (Supp. 2004), and one count of endangering the welfare of a child, RSA 639:3 I(i), (j) (1996) (amended 2003), one count of criminal solicit ation, RSA 629:2 convicted of two counts of aggravated felonious sexual assault, RSA 632 - A:2, DUGGAN, J. Following a jury trial, the defendant, Francis Kepple, was

defendant. Duncan J. MacCallum, of Portsmou th, by brief and orally, for the

and orally), for the State. Kelly A. Ayotte, attorney general (Karen A. Gorham, attorney, on the brief

No. 2 003 - 432 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

§ p. 2 2516(2). Second, he argues that the one - party intercept in this case was offenses that are not specifically enumerated in Title III. See 18 U.S.C. of the Federal Constitution because it authorizes electronic surveill ance for State wiretapping statute, RSA chapter 570 - A, violates the Supremacy Clause The defendant raises three issues on appeal. First, he argues that the

played for the jur y and admitted as evidence at trial. from sources other than the one - party intercept. The tape recording was criminal solicitation and endangering the welfare of a child indictments came the State did not violate RSA 570 - A:8 because the evidence to support the the intercept was authorized under Title III. Finally, the trial cour t found that alleged sexual assault in this case involved danger to the victim’s life and thus unconstitutional on its face. Furthermore, the trial court found that the property” authorized in Title III and t hus the State statute is not fell within the general category of “other crime[s] dangerous to life, limb, or The trial court found that the offenses enumerated in RSA chapter 570 - A

enumerated in the one - party intercept memorandum. support the charges brought subsequent to the intercept tha t were not obtain judicial authorization under RSA 570 - A:8 to use the recording to p. 2 2516(2) (2000). Additionally, the defendant argued that the State failed to Omnibus Crime Control and Safe St reets Act of 1968 (Title III). See 18 U.S.C. § specifically enumerated in the federal wiretapping statute, Title III of the purports to authorize electronic surveillance for offenses that are not unconst itutional on its face and as applied to the facts of this case because it Eavesdropping statute, RSA ch. 570 - A (2001 & Supp. 2004), is conversation with the victim, arguing that the New Hampshire Wiretapping and Prior to trial, the defendant moved to suppress the tape recording of his

for the assault. conversation, the defendant made statements acknowledging h is responsibility investigate the crime of aggravated felonious sexual assault. During the defendant as a one - party intercept under RSA 570 - A: p. 2 2, II(d) (2001) to authorized, the re cording of a conversation between the victim and the victim and her parents consented to, and the attorney general’s office Eventually, the victim disclosed these events to the Raymond police. The

what was going on,” put on her clothes and left. if she wanted to perform oral sex on him. At that point, the victim “realized sex on her. Afterward, the defendant began masturbating and asked the victim stomach. The defendant then removed the victim’s clothing and performed oral on a bed. Wh en she did so, he sat down next to her and started rubbing her began to feel “really sick.” The defendant suggested that she should lie down and Pepsi. After drinking some of the vodka and eating a sandwich, the victim after they arrived at the house, the defendant supplied the victim with vodka p. 3 3

III. Griggs - Ryan v. Smith, 904 F.2d 112, 116 (1st Cir. 1990). have the conversation recorded are not protected from interception under Title 18 U.S.C. § 2511(2)(c). Thus, communications in which one party c onsents to

given prior consent to such interception. communication or one of the parties to the communication has communication, where such person is a party to the under color of law to int ercept a wire, oral, or electronic It shall not be unlawful under this chapter for a person acting

intercepts: federal statutory scheme provides an exception, however, for one - party punishable by imprisonment for more than one year. 18 U.S.C. § 2516(2). The enumerated offenses or other crimes “dangerous to life, limb, or property” and by law enforcement officers when it may provide evidence of certain Title III permits interception of wire, oral or electronic communications

court’s determination de novo. State v. Bortner, 150 N.H. 504, 510 (2004). constitutionality of a statute involves a question of law, we review the trial statute. Compare 18 U.S.C. § 2516(2) with RSA 570 - A:7. Because the wireta pping to investigate crimes that are not enumerated in the federal contends that the State statute conflicts with federal law because it authorizes Lebanon, 148 N.H. 618, 620 (2002) (quotation omitted). The defendant state and federal law actually conflict.” Koor Communication v. City of exclusive regulatory power in a particular field to the f ederal government; or ( p. 3 3) displace state law; (2) Congress implicitly supplants state law by granting Clause, state law is preempted when: “(1) Congress expresses an intent to circumstances that are not p ermitted under federal law. Under the Supremacy Clause of the Federal Constitution because it authorizes wiretapping in First, the defendant argues that the State statute violates the Supremacy

authorization. We agree with the State. limited to the aggravated felonious se xual assault offense enumerated in the to use the recording was not required because the information obtained was § 2511(2)(c) (2000). The State further contends that post - interception approval regardi ng enumerated offenses are inapplicable here. See 18 U.S.C. surveillance when one party consents to the recording, the federal limitations The State argues that because Title III specifically excludes electronic

during the trial as is required under RSA 570 - A:8. authorization and failed to apply f or judicial approval to use the recording because the State gathered evidence for offenses not designated by the Third, he argues that the trial court should have suppressed the tape recording charge did not involve any danger to the victim’s life, limb or property. See id. unlawful under Title III because the alleged aggravated felonious sexual assault p. 4 4

During the taped conversation, the defendant acknowledged that he was evidence of either criminal solicitation or endangering the welfare of a c hild. applies to one - party intercepts, the interception here did not gather any Even assuming that the authorization requirement under RSA 570 - A:8

of the co mmunication at trial. RSA 570 - A:8, V. a subsequent application to a judge for approval before disclosing the contents other than those specified in the order of authorization, the police must submit RSA 570 - A:8, when the police intercept communications relating to offenses namely, criminal solicitation and endangering the welfare of a chi ld. Under intercept to indict and convict the defendant on the other offenses charged; A:7. The defendant argues that the State also used the contents of the investigate the charge of aggravate d felonious sexual assault. See RSA 570 authorization for the one - party intercept from the attorney general’s office to intercept. See RSA 570 - A:8, V. The police sought and obtained the st atutory procedure for using and disclosing the contents of the one - party Finally, the defendant argues that the State failed to comply with

there has been compliance with RSA chapter 570 - A. one - party consent interception, our statutory inquiry is limited to whether U.S.C. § 2511(2)(c). When the State seeks to introduce evidence obtained by a that the federal law does not apply to the interception in this case. See 18 explicitly exempts one - party interceptions from the statutory scheme, we hold ap plicability of Title III to one - party consent interceptions. Because Title III life, limb or property. See 18 U.S.C. § 2516(2). This argument assumes the offenses under Title III and, in this case, did not involve danger to the victim’s because aggravated felonious sexual assault is not one of the enumerated Next, the defendant argues that the intercept violated federal law

intercept. authorization from the attorney general prior to conducting the one - party provides greater protection of individual rights because it requires 30 (199 p. 5 5). Thus, the State stat ute does not conflict with federal law, but rather interception. RSA 570 - A:2, II(d); see, e.g., State v. Conant, 139 N.H. 728, 729 reasonable suspicion that evidence of criminal conduct will be derived from the interception, provid ed that the attorney general’s office determines that there is communications when one of the parties has given prior consent to the grounds). Under RSA 570 - A:2, a law enforcement officer may intercept oral privacy. State v. Ayers, 118 N.H. 90, 91 (1978) (superseded by statute on other federal counterpart, providing more protection for the individual’s right to 2003). We have recognized that RSA chapter 570 - A is more stringent than its standards.” Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 11 p. 4 42 (C.D. Cal. attempt to occupy the field, but merely an attempt to establish minimum “It is well accepted that Congress’ wiretapping statute was not an 5

NADEAU, DALIANIS and GALWAY, JJ., concurred.

defendant’s motion to suppress the tape recording. Accordingly, we hold that the trial court did not err in denying the

that the authorization violated RSA p. 5 570 - A:8, V. the bases for the other indictments. We thus reject the defendant’s argument consumption of alcohol or the defendant’s solicitation of oral sex, which were authorized. There w ere no references during the conversation to the victim’s the aggravated felonious sexual assault charge, for which the interception was attracted to the victim and took advantage of her. These statements related to