Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
May the Law Be With You
The Adirondacks of upper New York conjure up
different images for different people but they all have one thing in common –
peacefulness. For some, the Adirondacks are the northern part of the Appalachian
Mountains, even though they are really, geologically an extension of Canada.
Others use the term to refer to the Adirondack Park created in 1892 by the State
of New York to conserve water and timber resources in the region.
Today that Park is the largest publicly
protected area in the contiguous United States – greater in size than
Yellowstone, Everglades, Glacier, and Grand Canyon National Park combined –
approximately 6 million acres. Such a peaceful place was an unlikely setting for
the latest conflict between amateur radio operators and the government over
radio use and possession laws, but last summer that’s where the latest battle
was waged.
Last May 31st at around three in the morning
Richard Lalone, KC5GAX a licensed amateur radio operator, was stopped on his way
home from work. Driving during the “magic drunk” hour, when police make many of
their drunk driving arrests, Lalone was on his way home from the Fort Drum Army
base near Watertown, New York, when he was stopped. Although he was driving
below the speed limit, Trooper Rice thought he was wandering in his lane and
stopped him to investigate.
As she approached Lalone's vehicle she noticed
a single 2-meter antenna on the roof of in addition to the Jeep's AM and FM
steel whip antenna. The detail was unremarkable at the moment as she asked the
driver for his license and registration. On the dash of the vehicle, though, she
noticed a two-way radio – an ICOM 706 MKIIG. The radio was not tuned to any
police channel. The Trooper returned to her vehicle to check the license and
registration. Richard Lalone turned back to listening to his stereo, which was
now receiving some sort of interference. He would later find out the Trooper had
left the patrol car's speed radar on and it was apparently interfering with his
stereo.
A few minutes later Trooper Rice found Lalone's
license and registration in order and returned to his vehicle to send him on his
way. As she returned his drivers license and registration, she asked about the
radio mounted on the dash, which Lalone was turning on and off in an attempt to
discover the source of the new interference.
Guilty Until Proven Innocent
Lalone told her it was a two-way amateur radio
and that he was a ham radio operator. “Can it receive police calls?” the Trooper
asked. "It's capable of receiving them," Lalone told her.
Remembering her training and that such radios
were illegal, Trooper Rice asked Lalone to remain while she investigated this
new development. She again returned to her car and using a mobile telephone
called her headquarters to double check what she remembered about police radios
in vehicles in New York. At headquarters another officer looked up the offense
in a Desk Book. The current New York State Police Desk Book contains, among
other things, a chart by which officers can quickly look up a summary of the law
for most New York Vehicle and Traffic law offenses.
The Officer at headquarters told Trooper Rice
that having a radio that can receive radio signals used by the police was a
violation of New York Vehicle and Traffic Section 397. What neither Trooper Rice
nor the Officer informing her knew, was that an exception in the law for
licensed amateur radio operators had not been included in the Desk Book when it
was prepared. Lalone and his lawyer would later learn that the New York State
Police Desk Book was incorrect.
Trooper Rice returned to the stopped vehicle
and informed Lalone that his radio was against the law. Lalone politely
protested and explained that he was a licensed amateur radio operator. He showed
the Trooper his Federal Communications Commission license and told her there was
an exception in the law. However, he did not have a copy of the New York law
with him to show the trooper. The Trooper listened to Richard Lalone’s
explanation, but with the incorrect information she had received from
headquarters, she had no choice but to write him a citation for illegal
possession of a radio in a vehicle. The Trooper was polite and professional
throughout and did not confiscate the radio.
After handing him the citation and explaining
to him that he had to appear June 9th in Court to answer the charges
against him, she allowed Lalone to leave. Richard Lalone drove home relived that
he was not going to jail and that his radio had not been confiscated, but
somewhat confused about the officer not understanding the law or believing his
license exception.
Up in Arms
In the days that followed the stop, Richard
Lalone sought out the help and advice of the local amateur community. In the new
"town square" of the twenty-first century – the online chat rooms and message
boards of the Internet – messages about the encounter flew. Slowly the ham radio
community in the area became slightly outraged. Disbelief over the apparent
refusal of the State of New York to recognize an exception in the law grew into
discontent. Some licensed amateur radio operators even suggested that if the
State was going to behave this way they might need stop helping the state when
it came to civil defense drills and other emergencies or risk arrest. Suddenly
the volunteer communications assistance that the amateur radio community
provides in times of emergency in the Adirondacks was in jeopardy.
Through the help of Harry Kohler, by the time
Richard Lalone’s scheduled court date of June 9th rolled around, he
had enlisted the help of attorney Susan Terry. Terry, also a licensed amateur
radio operator, was a former prosecutor and Assistant New York Attorney General.
She agreed to take on the case pro bono, as a public service for Richard
Lalone and the amateur community. That meant she would not get paid the several
hundred to sometimes several thousand dollars that it can take to defend a case
like this.
After conducting her initial investigation of
the facts and reviewing the law in New York to insure there were no recent
changes, Terry contacted the Assistant District Attorney on the case Dylan
Tester. “The law does not apply to Mr. Lalone,” she told him. "He is exempt by
virtue of his federal license." Tester agreed and considered dismissing the
case. However, the Judge on the case did not feel comfortable with a verbal
dismissal.
Although New York law allows a Court to
affirmatively dismiss a case just on the verbal authorization of a prosecutor or
the Court’s own recognition that no law was violated, Judge Hallett preferred
that a record was made of how and why the case was dismissed. He directed the
parties to provide him with a formal request for dismissal for him to rule on.
Terry filed her request and a supporting seven page affidavit the next month.
In it she cited several reasons why the law did
not apply to Richard Lalone or the facts of this case. In addition to her
argument that the state law did not apply here, Terry reminded the Court that
federal law preempts the New York law in these types of matters.
Vindication
On August 5th, Judge John Hallett
issued the decision of the Court dismissing the charge against Richard Lalone.
In his opinion Judge Hallett noted that Section 397, the law controlling
possession of radios that can receive radio signals used by the police in New
York, “is probably the most poorly drafted section of the Vehicle and Traffic
Law." Judge Hallett also took note of the “the exemplary service amateur radio
operators have provided to the citizens of Jefferson County [where the case took
place], notably during the microburst of 1995, the ice storm of 1998 and the
terrorist attacks of 2001.”
After months, the charges hanging over Richard
Lalone were gone. His case underscores a simple, but important point that is
often mentioned when "possession of a radio that can receive radio signals used
by the police" is an issue. If you are in an excluded class because you have
a permit or federal license, carry a copy of the complete law in your vehicle in
addition to a copy of your permit or license.
Disclaimer: Information in this column is
provided for its news and educational content only. Nothing here should be
construed as giving specific legal advice. Persons desiring legal advice about
their specific situation should consult an attorney licensed in their
jurisdiction. |
