1. Introduction
In THE STATE OF NEW HAMPSHIRE v. MATTHEW CLARK, the Supreme Court of New Hampshire clarified when an unlawfully recorded conversation must be excluded from evidence under the state’s Wiretapping and Eavesdropping Law, RSA chapter 570-A. The court held that suppression under RSA 570-A:6 requires a felony interception; a misdemeanor interception alone does not trigger that statutory remedy.
Matthew Clark faced a felony charge of criminal threatening with a deadly weapon under RSA 631:4, II. The complainant secretly recorded a conversation with him that included potentially incriminating statements about the alleged crime. Clark neither knew about nor consented to the recording. The complainant later reported the underlying incident to police, played the recording for officers, and supplied a copy.
Clark sought suppression because the recording had been made without his consent. The trial court denied his motion, reasoning that the complainant’s participation in the conversation made the recording only a misdemeanor violation and that disclosure of such a recording did not violate the statute.
The interlocutory appeal presented two connected issues: whether every unlawful interception requires suppression, and whether the complainant’s recording or subsequent disclosure could constitute a felony. The Supreme Court resolved the statutory interpretation question but remanded for the trial court to consider the application of the clarified law to the complainant’s conduct.
3. Analysis
A. The Statutory Structure: Interception, Disclosure, and Suppression
The decision rests on reading three provisions together rather than treating all violations of the Wiretapping and Eavesdropping Law as interchangeable.
| Provision |
Function |
Significance |
| RSA 570-A:2, I |
Defines class B felony offenses, including specified willful interceptions and disclosures. |
Supplies the felony predicate relevant to statutory suppression. |
| RSA 570-A:2, I-a |
Defines a misdemeanor involving knowing interception by a participant or with one participant’s prior consent, subject to the statutory qualifications. |
Establishes that an unlawful one-party recording can fall short of a felony. |
| RSA 570-A:6 |
Excludes intercepted contents and derivative evidence when disclosure would violate the chapter. |
Connects evidentiary exclusion to prohibited disclosure, rather than to every unlawful interception. |
This structure means that the legality of obtaining a recording and the statutory consequences of introducing it into evidence are related but distinct questions. A recording may have been unlawfully made without being subject to exclusion under RSA 570-A:6.
B. Legal Reasoning
1. The suppression provision’s wording controls
Clark argued that RSA 570-A:6 barred any recording made in violation of any provision of the chapter. The court rejected that reading because it overlooked the provision’s operative condition:
“if the disclosure of that information would be in violation of this chapter.”
The statutory inquiry therefore concerns whether disclosure would be unlawful, not merely whether the original recording was unlawful. Treating every illegal interception as sufficient for suppression would substitute a broader rule for the language the legislature enacted.
2. “This paragraph” limits the disclosure offense
The court identified RSA 570-A:2, I as the chapter’s only provision prohibiting disclosure of intercepted communications. Under subparagraph I(c), the relevant disclosure must concern information obtained through an interception “in violation of this paragraph,” with the specified knowledge and willfulness requirements.
The phrase “this paragraph” refers to the Roman-numeral paragraph I, which defines felony offenses. It does not refer to the entire chapter or include the separate misdemeanor paragraph I-a. Consequently, a misdemeanor interception does not become a predicate for the felony disclosure offense merely because the recording is later shared.
The reasoning can be expressed as a statutory chain:
- Suppression under RSA 570-A:6 depends on disclosure that would violate the chapter.
- The relevant disclosure prohibition appears in RSA 570-A:2, I(c).
- That prohibition requires an interception violating the felony paragraph.
- A misdemeanor interception alone therefore does not require suppression under RSA 570-A:6.
This analysis does not erase the other elements of the disclosure offense. Rather, it establishes that a felony interception is the necessary predicate that a misdemeanor interception cannot supply.
3. Participation in the conversation does not conclusively determine the offense
The court also rejected Clark’s argument that the statutory scheme makes one-party recordings categorically felonious. RSA 570-A:2, I-a expressly addresses knowing interception by a participant or with a participant’s prior consent, subject to its stated qualifications. That provision cannot be read out of the statute.
At the same time, the court clarified that one-party participation does not automatically reduce an interception to a misdemeanor. The misdemeanor provision requires a knowing mental state, while the felony provision requires a willful mental state. Thus, the circumstances and the recorder’s mental state remain important.
The opinion does not comprehensively define the evidentiary difference between “knowing” and “willful.” Its contribution is to insist that the distinction matters. A court cannot classify a recording solely by asking whether the person who made it was part of the conversation.
4. The statutory framework was clear, but its application remained open
The Supreme Court found no ambiguity requiring examination beyond the statutory language. Read together, the provisions distinguish knowing one-party interception from willful interception and make disclosure liability depend on the felony paragraph.
However, the trial court had treated the complainant’s participation as sufficient to characterize the recording as a misdemeanor. On appeal, Clark challenged that classification and argued that disclosure to police constituted a felony. Because he had not raised that application argument below, and because the Supreme Court had clarified the governing law, the court remanded for initial consideration by the trial court.
The remand is therefore important: the Supreme Court settled the governing rule without finally deciding whether this recording satisfied it.
C. Precedents Cited and Their Influence
State v. Czekalski, 169 N.H. 732, 738–39 (2017)
This was the most directly influential interpretive precedent. It established that “this paragraph,” as used in RSA chapter 570-A, refers to the particular Roman-numeral paragraph containing the phrase. Applying that construction to RSA 570-A:2, I(c), the court confined the disclosure prohibition’s interception predicate to violations of paragraph I.
That reading supplied the decisive link between felony interception and suppression. It prevented the phrase from being expanded to cover the separate misdemeanor provision.
State v. Mueller, 166 N.H. 65, 68–69 (2014)
The court relied on this decision for the proposition that misdemeanor and felony violations of RSA chapter 570-A require proof of different mental states. It supported rejection of Clark’s claim that all one-party interceptions are felonies.
It also explains why the trial court’s participation-based classification required further consideration. The recorder’s relationship to the conversation does not eliminate the need to assess the mental state required by the applicable offense.
The court cited this case to illustrate a “one-party interception.” It involved a detective’s preservation of private internet messages to which the detective was a party, without the other participant’s knowledge.
Its role here was explanatory rather than dispositive: it clarified terminology but did not establish that every one-party recording is lawful, a misdemeanor, or a felony.
This precedent supplied the method of statutory interpretation: begin with ordinary meaning, read provisions within the overall statutory scheme, and do not look beyond clear and unambiguous text to determine legislative intent.
That approach shaped the entire decision. The court read the suppression clause together with the disclosure offense and the separate misdemeanor provision, rather than relying on a generalized assumption that privacy protection requires exclusion for every violation.
This case provided the standard of review for suppression rulings. Supported factual findings receive deference unless clearly erroneous, while legal conclusions receive de novo review.
Because the certified questions principally concerned statutory meaning, the Supreme Court independently reviewed the legal framework. That did not require it to resolve the remaining factual application itself.
In the Matter of Liquidation of Home Ins. Co., 175 N.H. 363, 364 (2022)
The court cited this decision for its treatment of the record in an interlocutory appeal: it accepted the statement of the case and facts presented in the appeal statement and consulted the suppression record for additional facts as necessary.
This precedent governed the factual basis for review, not the substantive interpretation of the wiretapping statute.
This decision supported limiting review to the three accepted interlocutory questions. The court declined to address other issues raised in Clark’s brief.
Its significance lies in defining the opinion’s boundaries. The decision should not be understood as resolving objections beyond the questions the court agreed to review.
This precedent supported remanding for the trial court to consider an issue after the Supreme Court clarified the applicable law. It justified leaving the particular classification of the complainant’s conduct for further proceedings.
The resulting disposition preserves the distinction between establishing a legal rule on appeal and applying that rule to matters requiring initial trial-court consideration.
D. Potential Impact
Suppression motions must identify more than missing consent
A defendant relying on RSA 570-A:6 cannot establish the statutory basis for suppression merely by showing that not all participants consented. Future litigation will need to address whether the interception falls within the felony provision and whether the relevant disclosure would violate the chapter.
The recorder’s mental state becomes central
Where an unlawful recording was made by a participant, courts must avoid assuming that participation conclusively establishes misdemeanor liability. The distinction between knowing and willful conduct can determine whether statutory suppression is available.
Sharing a misdemeanor recording does not automatically create a felony predicate
The opinion rejects the premise that any unlawful recording becomes a felony matter when disclosed to police. The disclosure provision looks back to an interception violating the felony paragraph. Whether the original interception was felonious remains essential.
Illegality and exclusion remain distinct
The decision limits the suppression remedy without legalizing nonconsensual recording. Conduct may remain a misdemeanor even though RSA 570-A:6 does not require exclusion of the resulting evidence.
The holding is statutory, not a blanket admissibility ruling
The court interpreted RSA chapter 570-A. It did not hold that every misdemeanor recording is admissible for every purpose or resolve independent constitutional or evidentiary objections. Its practical effect must remain confined to the statutory ground actually decided.