Audio recorded on a Ring video doorbell does not violate the state’s wiretapping statute and can be admitted as evidence in a shooting case, a Strafford County Superior Court judge has ruled.

Timothy Burke

Timothy Burke

Facing multiple charges

When Assistant County Attorney Emily Garod wanted to use the audio from a Ring device during an evidentiary hearing in the state’s case against Timothy Burke, 31, of Rochester, Burke’s public defender objected.

Burke is charged with first-degree assault with a deadly weapon, reckless conduct with a deadly weapon, witness tampering, being a felon in possession of a firearm and being an armed career criminal.

On July 22, 2019, Burke allegedly shot his brother, Edwin Burke, in the driveway of their sister’s apartment on Maple Street in Rochester.

Public defender Carl Swenson objected to Garod’s use of the Ring’s audio, saying it was captured in violation of the state’s wiretapping and eavesdropping law, which was adopted in 1969.

Garod submitted a motion on Jan. 9 to ask the court to hold a hearing on the matter, arguing that Burke could not have had a reasonable expectation that he would not be either recorded or overheard by neighbors since he was in a driveway on a street where many apartments are located. That hearing was held on Feb. 4.

On Wednesday, Judge Mark Howard issued his order in favor of the prosecution.

Howard concluded that if a person’s speech “is exposed to the general public’s naked ear, it is not ‘oral communication’ under the wiretap statute.”

“Specifically, the fact that the statute is designed to protect an interest in ‘privacy’ suggests that it is not intended to apply where a speaker should reasonably expect that his verbal communication is publicly exposed,” Howard wrote.

Howard used the legislative history of New Hampshire’s wiretapping statute to help clarify his statements. He said that in 2012, during the amending of the definition of “oral communication,” a proponent testified that if a person is on the street, acting in public, they cannot expect privacy.

If that person is huddled next to another person talking privately, putting a directional microphone on them to pick up the conversation from 30 feet away is violation of privacy, the proponent testified.

In this case, neighbors provided the Ring video doorbell recording to police. Ring will only provide video content directly to police in response to a valid search warrant, according to the company’s policies.

A final pretrial hearing for Burke is scheduled for March 18. Jury selection for his trial begins on April 6, according to court records.

Burke is charged with two special felonies and three Class B felonies. He could be sentenced to decades in prison if convicted.

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