WOBURN — The attorney representing a Salem, N.H. man accused of hiding a recording device in a flower pot that was placed in a women’s bathroom stall has asked that charges against his client be dismissed.

In Middlesex Superior Court on Wednesday, defense attorney Joseph Simons argued that charges of intercepting oral communications and four counts of photographing an unsuspecting person in a state of nudity should be dismissed against Joseph B. Hennessey, 54, of Salem, N.H.

Hennessey, a former Arlington DPW worker, was arrested by Arlington police in September 2014 after a flower pot was discovered in a stall of the women’s bathroom at the Kickstart Cafe. Hennessey claimed ownership of the flower pot.

Prosecutor Ceara Mahoney alleges there was a recording device in the flower pot that could live stream video while Hennessey allegedly sat in another location within the cafe. Police allegedly found that Hennessey had the electronics to receive a signal from the device in the flower pot. She argued there was probable cause to charge Hennessey.

But Simons argued there isn’t clear audio found on recordings found on the device’s memory card. Also, since the police and prosecutor have been unable to identify the women involved because the camera was focused on the neck down, authorities cannot prove that the women did not consent to being filmed in the bathroom.

“We don’t know if they (the women) gave consent,” Simons told the judge. “People do odd things.”

Mahoney countered the video shows what appears to be a conversation between two women, but the audio is not available. As for consent, Mahoney argued, “The manner in which the camera was hidden in a flower pot and no faces were shown (suggests) those women were not consenting.”

The judge took the matter under advisement.

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