finding sufficient evidence of a “course of conduct” for purposes of stalking based, in part, upon evidence that the defendant had driven his car to a restaurant where the victim was eating, drove through the restaurant’s parking lot, and was approximately three car lengths from the victim when the victim saw him
How later courts described this case
- finding sufficient evidence of a “course of conduct” for purposes of stalking based, in part, upon evidence that the defendant had driven his car to a restaurant where the victim was eating, drove through the restaurant’s parking lot, and was approximately three car lengths from the victim when the victim saw him
- affirming jury verdict that defendant stalked victim when victim saw him drive through restaurant parking lot, the defendant then called her at the restaurant although police had told him not to contact her, and there was evidence admitted of other uncharged conduct
- holding that communication between defendant and third party of which victim was later made aware supported finding of stalking
- noting that we relied upon Smith v. Maryland, 442 U.S. 735 (1979), in Valenzuela to determine that an individual has no legitimate expectation of privacy in phone numbers dialed to make outgoing calls
Written by the judges who cited it.
The opinion
Nadeau and Galway, JJ.,
dissenting. We disagree with the conclusion of the lead opinion and the special concurrence that the defendant did not *687 have a reasonable expectation of privacy in the information concerning his cellular telephone calls compiled by U.S. Cellular in its ordinary course of business. The reality of today’s technological society and common experience requires protection of this information from warrantless seizures.
In State v. Goss, 150 N.H. 46 (2003), for the first time, we adopted a reasonable expectation of privacy analysis under Part I, Article 19 of the New Hampshire Constitution. This analysis recognizes that the requirements of Part I, Article 19 exist to protect a person’s legitimate expectation of privacy from unreasonable governmental intrusions. See Katz v. United States, 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring). To determine the legitimacy of the defendant’s privacy expectation, we examine first, whether the defendant had an actual, subjective expectation of privacy and second, whether this expectation is one that society is prepared to recognize as reasonable. Goss, 150 N.H. at 48-49 .
In our view, when a person communicates information to the telephone company in order to use its services, that person has a reasonable expectation of privacy in the information conveyed. We believe that a cell phone subscriber has an actual expectation that the dialing of numbers from his cell phone will be free of government intrusion and that this expectation is one that society is prepared to recognize as reasonable. See, e.g., People v. Sporleder, 666 P.2d 135, 141-42 (Colo. 1983). Whether the information disclosed is recorded for billing purposes or consists of phone numbers dialed to make outgoing telephone calls, it is not unlike that contained in “[p]ersonal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash,” Goss, 150 N.H. at 49 , information that we have previously found protected under Part I, Article 19 of our State Constitution. We would reconsider, therefore, our holding in State v. Valenzuela, 130 N.H. 175, 200 (1987), cert. denied, 485 U.S. 1008 (1988), in light of our holding and reasoning in Goss , and the advances in technology of the last eighteen years.
Our decision in Valenzuela rested upon what we believe is a faulty premise, that disclosure of certain facts to a telephone company for a limited business purpose is a voluntary disclosure of these facts for all purposes. “The telephone is a necessary ... component of modem life.” Valenzuela, 130 N.H. at 200 (Batchelder, J., dissenting). “For all practical purposes an individual in America today has very little choice about whether the telephone company will have access to the numbers he dials and the frequency of times he dials them.” Com v. Beauford, 475 A.2d 783, 789 (Pa. Super. 1984). To use the service, “the individual must accept that this information will be collected by the company for billing purposes.” Id. It seems clear to us that:
*688 A telephone is ... a personal and business necessity indispensable to one’s ability to effectively communicate in today’s complex society____The concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed by the telephone subscriber does not alter the caller’s expectation of privacy and transpose it into an assumed risk of disclosure to the government.
Sporleder, 666 P.2d at 141 . Moreover, a collection of the information subpoenaed by the State in this ease can provide a virtual mosaic of a person’s private life. See Valenzuela, 130 N.H. at 200 (Batchelder, J., dissenting).
We view the “disclosure to the telephone company of the number dialed as simply the unavoidable consequence of the subscriber’s use of the telephone as a means of communication and the telephone company’s method of determining the cost of the service utilized.” Sporleder, 666 P.2d at 141 . We find compelling the argument made by the Supreme Court of New Jersey in State v. Hunt, 450 A.2d 952, 956 (N.J. 1982):
It is unrealistic to say that the cloak of privacy has been shed because the telephone company and some of its employees are aware of this information. Telephone calls cannot be made except through the telephone company’s property and without payment to it for the service. This disclosure has been necessitated because of the nature of the instrumentality, but more significantly the disclosure has been made for a limited business purpose and not for release to other persons for other reasons. The... billing record is a part of the privacy package.
The compulsory disclosure of certain facts to the telephone company for the purposes of using an instrument of private communication does not justify the assumption that the company will freely share that information with others, or that the State can seize it without probable cause. See Valenzuela, 130 N.H. at 200 (Batchelder, J., dissenting).
The lead opinion asserts that the defendant does not have a reasonable expectation of privacy in the billing records because they were never in his possession and contained only information that he voluntarily conveyed to U.S. Cellular in order to make use of its telephone service. Although the information the defendant provided was recorded for billing purposes and retained by U.S. Cellular in the ordinary course of its business, it seems to us that it is information “that few people would want to be made public.” Goss, 150 N.H. at 49 . A “telephone subscriber has a reasonable expectation that the calls he makes will be utilized only for the accounting functions of *689 the telephone company!;] he cannot anticipate that his personal life, as disclosed by the calls he makes and receives, will be disclosed to outsiders without legal process.” People v. Blair, 602 P.2d 738, 746 (Cal. 1979). In our view, “[p]rivacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a ... phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.” Smith v. Maryland, 442 U.S. 735, 749 (1979) (Marshall, J., dissenting).
Under the lead opinion’s reasoning, a person who orders items, legal to possess, over the internet for delivery to someone else, has no expectation of privacy in the information required to make the purchase. During the eighteen years since Valenzuela was decided, gigantic strides in technology have made possible increased intrusion into our personal lives. Left unchecked by the protections the warrant requirement provides, these advances in technology could render meaningless the concept of privacy that society has come to expect and enjoy.
Justice Batchelder’s statement in Valenzuela is even more relevant today than it was in 1987.
Article 19 protects a person’s “papers” from all unreasonable searches and seizures. “Papers” as tangible objects, however, have little or no intrinsic value. The value of “papers” rests in the content of the information contained in them. The mere advance in technology from paper as the medium for the flow of information to, for example, telephonic communications should not alter the protective force of article 19. Similarly, article 19 should not be limited to protections against the intrusive capabilities of the government at the time of the adoption of article 19. Rather, the areas of protected privacy must be examined and determined on a case by case basis in light of the technology available to the government at any given time. The protected rights, of necessity, become more sharply defined as science and technology broaden the scope of governmental power. In the end, I see no functional difference between government officials searching for and seizing a person’s papers, in the course of an investigation without the benefit of a warrant based on probable cause, and their monitoring the communicative activities of a citizen without the burden of similar requirements.
Valenzuela, 130 N.H. at 201 (Batchelder, J., dissenting).
Because we consider Valenzuela to have been wrongly decided and its reasoning undermined by our decision in Goss , we believe that the lead opinion errs by adhering to it under principles of stare decisis. “While we *690 recognize the value of stability in legal rules, the doctrine of stare decisis is not one to be either rigidly applied or blindly followed. The stability of the law does not require the continuance of recognized error.” Matarese v. N.H. Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 400 (2002) (quotation omitted). “Where a decision has proven unworkable or badly reasoned ... we will not hesitate to revisit it.” Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 304 (1994).
Furthermore, because of the technological advances of the last eighteen years, we believe the holding in Valenzuela is not of such a nature as to demand respect in a society governed by the rule of law. The consequences of overruling Valenzuela , therefore, would not create a “special hardship” which would weigh in favor of the retention of its holding. Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504-05 (2003) (quotation omitted). Nor will overruling its holding result in “a mere exercise of judicial will with arbitrary and unpredictable results.” Id. at 504 . Expanding the privacy rights of the citizens of New Hampshire would merely require the State to have a warrant supported by probable cause before obtaining this information, a standard that the State must routinely meet to gather other evidence.
Accordingly, we would overrule Valenzuela and hold that the defendant has a reasonable expectation of privacy in the billing records held by U.S. Cellular, and exclude them from evidence because they were seized by the State without a warrant. Because the State does not argue harmless error, we would reverse the defendant’s conviction and remand for a new trial.
For these reasons, therefore, respectfully, we dissent.