{ "id": 1573166, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Hugh ARNOLD, Max Chavez, Roy Christensen, Robert E. Shelton, and Speedway Drive-In Food Stores, Inc., Defendants-Appellees", "name_abbreviation": "State v. Arnold", "decision_date": "1979-07-12", "docket_number": "No. 3705", "first_page": "385", "last_page": "392", "citations": [ { "type": "official", "cite": "94 N.M. 385" }, { "type": "parallel", "cite": "610 P.2d 1214" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "Ga. Code Ann. \u00a7 26-3006", "category": "laws:leg_statute", "reporter": "Ga. Code Ann.", "opinion_index": 0 }, { "cite": "214 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "134 Ga.App. 343", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 756724 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ga-app/134/0343-01" ] }, { "cite": "125 Cal.Rptr. 306", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1976, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "52 Cal.App.3d 894", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6040096 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/cal-app-3d/52/0894-01" ] }, { "cite": "493 F.2d 346", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 198341 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/493/0346-01" ] }, { "cite": "278 A.2d 235", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1971, "opinion_index": 0 }, { "cite": "115 N.J.Super. 97", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 312116 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nj-super/115/0097-01" ] }, { "cite": "91 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571047 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0584-01" ] }, { "cite": "255 N.W.2d 619", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "622-3" } ], "opinion_index": 0 }, { "cite": "400 Mich. 559", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1926674 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/mich/400/0559-01" ] }, { "cite": "556 P.2d 1025", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10471211 ], "opinion_index": 0, "case_paths": [ "/p2d/556/1025-01" ] }, { "cite": "235 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "239 Ga. 3", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1157513 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ga/239/0003-01" ] }, { "cite": "90 N.M. 580", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871323 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0580-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 5, "year": 1967, "pin_cites": [ { "page": "363" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "210 Kan. 472", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 526320 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "821" }, { "page": "822-23" } ], "opinion_index": 0, "case_paths": [ "/kan/210/0472-01" ] }, { "cite": "270 Or. 169", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2124869 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/or/270/0169-01" ] }, { "cite": "386 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168959 ], "weight": 3, "year": 1967, "opinion_index": 1, "case_paths": [ "/us/386/0058-01" ] }, { "cite": "404 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174724 ], "weight": 3, "year": 1972, "opinion_index": 1, "case_paths": [ "/us/404/0477-01" ] }, { "cite": "420 U.S. 714", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11644491 ], "weight": 3, "year": 1975, "opinion_index": 1, "case_paths": [ "/us/420/0714-01" ] }, { "cite": "51 Wis.2d 434", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8670122 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/wis-2d/51/0434-01" ] }, { "cite": "501 P.2d 159", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10551848, 10551787 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/p2d/501/0159-02", "/p2d/501/0159-01" ] }, { "cite": "236 N.W.2d 86", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1975, "opinion_index": 1 }, { "cite": "64 Mich.App. 413", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2152186 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/mich-app/64/0413-01" ] }, { "cite": "545 P.2d 272", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 1 }, { "cite": "127 Cal.Rptr. 360", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1976, "opinion_index": 1 }, { "cite": "16 Cal.3d 101", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2295059 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/cal-3d/16/0101-01" ] }, { "cite": "346 A.2d 66", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1975, "opinion_index": 1 }, { "cite": "68 N.J. 349", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1908320 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nj/68/0349-01" ] }, { "cite": "205 N.W.2d 461", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1973, "opinion_index": 1 }, { "cite": "389 Mich. 155", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1907450 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/mich/389/0155-01" ] }, { "cite": "227 N.W.2d 511", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1975, "opinion_index": 1 }, { "cite": "393 Mich. 554", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1940457 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/mich/393/0554-01" ] }, { "cite": "385 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337025 ], "weight": 6, "year": 1966, "opinion_index": 1, "case_paths": [ "/us/385/0293-01" ] }, { "cite": "88 S.Ct. 512", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 1 }, { "cite": "376 U.S. 483", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379537 ], "weight": 3, "year": 1964, "opinion_index": 1, "case_paths": [ "/us/376/0483-01" ] }, { "cite": "91 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571047 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/91/0584-01" ] }, { "cite": "255 N.W.2d 619", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "opinion_index": 1 }, { "cite": "400 Mich. 559", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1926674 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/mich/400/0559-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 3, "year": 1967, "opinion_index": 1, "case_paths": [ "/us/389/0347-01" ] } ], "analysis": { "cardinality": 1206, "char_count": 26935, "ocr_confidence": 0.815, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.058832387525295876 }, "sha256": "67905ca7271d9a6540f2cb05ddc3977ae6b40eeaa3adf48a02e2061c97724e65", "simhash": "1:39c1315a7506c7aa", "word_count": 4243 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs in result.", "WALTERS, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Hugh ARNOLD, Max Chavez, Roy Christensen, Robert E. Shelton, and Speedway Drive-In Food Stores, Inc., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nBy grand jury indictment, defendants were charged with restraint of trade in violation of \u00a7 57-1-1, N.M.S.A.1978. Motions to suppress taped recordings, transcriptions and testimony based upon telephone conversations that Edwin A. Kelly had with defendants Arnold and Christensen were sustained and the State appeals. We reverse.\nThis case involves alleged crimes committed by defendants arising out of an unlawful combination which operated as, or which had as its object, a restriction of trade or commerce such as (1) fixing the retail price of gasoline at service stations in White Rock and Los Alamos, New Mexico, and (2) seeking the removal of, and refraining from posting signs advertising retail gasoline prices at service stations in Los Alamos. At the hearing on defendants\u2019 motion to suppress, Kelly was the sole witness. The following summarizes that proceeding.\nJames W. Earnest, special investigator for the Attorney General obtained Kelly\u2019s cooperation in the investigation of possible price fixing in Los Alamos County. At Earnest\u2019s request, Kelly initiated two telephone calls to Arnold and one to Christensen, all of which conversations were recorded by instruments loaned to Kelly by Earnest. The recording devices were of two types: one operated by placing a suction cup on the telephone receiver and one which had a cover (or hood) into which the telephone receiver was placed. Arnold and Christensen were without knowledge of the recordation of the conversations and did not consent thereto. A court order was not obtained by Earnest or Kelly to record these conversations before they were made.\nAt the close of the hearing on defendants\u2019 motion to suppress, the court said:\nAs to the Motion to Suppress statements\u2019 by the Defendants intercepted by way of telephone, and taken surreptitiously, that Motion is granted. That is wire-tapping, maybe not technically, and not in form, but it is a type of activity that this Court does not condone and does not believe that it is fair to use that type of evidence without a prior court order. * * * [Y]ou cannot use that evidence in any way. [Emphasis added.]\nWe respect the sentiments of the trial court, but it is mistaken as to the law. The legislature recognized the deficiencies in the \u201cAbuse of Privacy Act\u201d and amended it by Laws 1979, Ch. 191. As amended, \u00a7 30-12-1 begins:\nInterference with communications consists of knowingly and without lawful authority. * * * [Emphasis added.]\n\u201c[A]nd without lawful authority\u201d was added. Prior to the amendment, a court order was unnecessary to legally obtain telephonic information, and, as we shall point out in our discussions, wiretapping did not occur in this case.\nThe Order of the trial court reads in pertinent part:\nIT IS THEREFORE ORDERED that the contents of the following telephonic communications be, and they hereby are, suppressed for all purposes: Telephonic communications between Ray Christensen and Ed Kelly occurring on December 15, 1977, telephonic communication between Hugh Arnold and Ed Kelly occurring on December 12, 1977, and telephonic communication between Hugh Arnold and Ed Kelly occurring on January 11, 1978.\nThis Order was entered without reference to the Abuse of Privacy Act, \u00a7 30-12-1, et seq., or the Fourth Amendment.\nThe State contends there is no statutory or constitutional impediment to the use of the recorded and unrecorded conversations as evidence in the trial. We agree.\nBased upon the reasons given, the Order entered can be summarily reversed. However, at the hearing, defendants relied on \u00a7 30-12-1 and the Fourth Amendment. We feel compelled to answer because the liberty of defendants is at stake.\nThis issue is a matter of first impression.\nArticle 12 of the Criminal Code, entitled \u201cAbuse of Privacy\u201d contains the following title:\nAn act relating to communications; providing for interception of wire or oral communications under court order * *. [Emphasis added.]\nThe pertinent parts of \u00a7 30-12-l(B), (C) and (E) read:\nInterference with communications consists of knowingly:\n* * * * * *\nB. cutting, breaking, tapping or making any connection with any * * * telephone line * * * belonging to another ;\nC. reading, hearing * * * taking or copying any message, communication or report intended for another by * \u25a0 * telephone without his consent;\n******\nE. using any apparatus to do or cause to be done any of the acts hereinbefore mentioned or to aid, agree with, comply or conspire with any person to do, or permit or cause to be done any of the acts hereinbefore mentioned. [Emphasis added.]\nThe purpose of the Act is to protect an individual\u2019s privacy of communication against unjustified intrusion. \u201cYet, we apprehend that society also has an interest in seeing that, in the administration of justice, the law seek out the best and most reliable information. This concept appears to have been given recognition through the consent features imbedded in the statutes.\u201d State v. Wigley, 210 Kan. 472, 502 P.2d 819, 821 (1972).\nA. The telephone conversations between Kelly and defendants are admissible in evidence.\nJustice White, in his concurring opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), said:\n* * * This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. [389 U.S. at 363, 88 S.Ct. at 517.]\nA note followed this statement, which, absent citation of authorities, reads:\n* * * When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another.\nWe have held that a face-to-face conversation between defendant and a district attorney, monitored with a concealed device on the district attorney, is admissible in evidence. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.1977).\nIn Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, 511 (1977) the court said:\nNo contention is made that this code section in any way attempts to prohibit the revelation of the content of a telephone conversation by one of the parties to it. We have found no decision in any jurisdiction in the English speaking world that has made such a holding.\nOne who voluntarily enters into a conversation with another takes the risk that the other person on the line may memorize, record, or even transmit the conversation. When Kelly gave his consent to Earnest to record the conversation between himself and the defendants, the conversation was divested of its private character. Pearson v. State, 556 P.2d 1025 (Okla.Crim. App.1976).\nFederal and state cases are collected in People v. Drielick, 400 Mich. 559, 255 N.W.2d 619 (1977). There is almost uniformity of opinion that warrantless electronic eavesdropping of telephone conversations, with consent of a participant, does not violate the Fourth Amendment prohibition against unreasonable searches and seizures. Drielick said:\n* * * No distinction has been made between electronic monitoring of face-to-face conversations and of telephonic communications. [255 N.W.2d at 622-3.]\nIn the instant case, defendants took the risk that Kelly would make public what he heard by telephone. Indeed, Wigley quotes the following from \u00a7\u00a7 4.1 and 4.2 of the American Bar Standards relating to Electronic Surveillance, page 127:\n\u201cThe crucial issue in any overhearing or recording situation is * * * the right of the witness himself to testify. Where he is entitled to testify, there can be no valid objection to the use of an overhearing or recording device, and the introduction of its product at trial.\u201d [502 P.2d at 822-23.]\nDefendants rely on State v. Chort, 91 N.M. 584, 577 P.2d 892 (Ct.App.1978). Chort deals with a reasonable expectation of privacy under the Fourth Amendment wherein a search was made of defendant\u2019s garden which was surrounded by an almost solid five foot fence. The court said:\nThe Fourth Amendment protects people, not places. What a person knowingly exposes to the public is not protected by the Fourth Amendment and what he seeks to preserve as private even in an area accessible to the public may be constitutionally protected. Katz v. United States * * *.\nThis rule is not applicable to telephone conversations.\nThe trial court erred in suppressing the telephonic conversations.\nB. The State did not unlawfully intercept the telephone conversation in violation of subsection (B) of \u00a7 30-12-1.\nSubsection (B) of \u00a7 30-12-1 provides that interference with a telephone communication occurs when information is obtained by tapping or making a connection with a telephone line that belongs to another.\nA \u201ctap\u201d has been defined as \u201cto cut in on (a telephone or telegraph wire) to get messages, information, or evidence.\u201d Webster\u2019s Third International Dictionary (1966), p. 2339. The State did not tap the telephone line.. Neither did the State make a \u201cconnection\u201d with the telephone lines. There was no mechanical interference. State v. Vizzini, 115 N.J.Super. 97, 278 A.2d 235 (1971). Earnest installed recording equipment on Kelly\u2019s telephone line, a mere accessory designed to preserve the contents of the communication. United States v. Harpel, 493 F.2d 346 (10th Cir. 1974).\nThe \u201ctelephone line,\u201d is distinguished from the \u201ctelephone.\u201d A \u201ctelephone\u201d is an instrument in which sound is converted into electrical impulses for transmission by a \u201ctelephone line,\u201d which, of course, belongs to the telephone company. To whom the \u201ctelephone line\u201d belonged is immaterial. The State did not tap or make connection with the telephone line.\nThe State did not violate subsection (B).\nC. The State did not unlawfully intercept the telephone conversations in violation of subsection (C) of \u00a7 30\u2014 12-1.\nSubsection (C) of \u00a7 30-12-1 also relates to one who is not a party to a private telephone conversation. An interference occurs if a third person reads, hears, takes or copies any telephone message or communication from one party intended for another party on the line \u201cwithout his consent.\u201d \u201cIt is never a secret to one party to a conversation, that the other party is listening to the conversation; only a third party can listen secretly to a private conversation.\u201d Rogers v. Ulrich, 52 Cal.App.3d 894, 125 Cal.Rptr. 306, 309 (1976).\nLet us turn to the phrase \u201cwithout his consent.\u201d To clarify this subsection, the legislature amended subsection (C) to read:\n* * * without the consent of a sender or intended recipient thereof.\nThe legislature intended to express its view of the meaning of the phrase \u201cwithout his consent.\u201d It means \u201cwithout the consent of one of the parties.\u201d If the consent of one of the parties is obtained, the messages are admissible in evidence. American Bar Association Standards relating to Electronic Surveillance, \u00a7 4.1. See, State v. Wigiey, supra.\nSubsection (C) stands alone among the states whose statutes have been read. In Wigiey, the Breach of Privacy Act referred to interception \u201cwithout the consent of the sender or receiver.\u201d The consent of one of the parties was sufficient. In the eavesdropping section, where consent was ambiguous, and the court was left to its \u201cown bare-bone resources,\u201d it resolved the issue in favor of the admissibility of the evidence.\nArnold relies on State v. Toomey, 134 Ga.App. 343, 214 S.E.2d 421 (1975). In Georgia, lawful interception required the consent of the sender and receiver. 26 Ga. Code Ann. \u00a7 26-3006. In Toomey, an investigator listened in on various conversations made by defendant as sender but without defendant\u2019s consent. The State did not have the consent of the sender and receiver, and defendant was protected. Toomey does not assist defendants.\nWe have reviewed the cases cited by Christensen. To discuss them would unduly extend this opinion. Because of different statutes, different results arise, but none of them play any significant role in support of defendants\u2019 position.\nChristensen seeks to escape subsection (C). During his conversation with Kelly, Christensen thought he was talking to Kelly\u2019s son; that Kelly\u2019s son was the \u201cintended recipient.\u201d Kelly then identified himself and the conversation continued. Christensen never indicated that the conversation was not intended for Kelly. If it were not so intended, Christensen\u2019s duty was to inform Kelly of that fact. He did not. We hold that Christensen intended and consented to the conversation with Kelly, and Kelly was the \u201cintended recipient.\u201d\nConsent having been given by Kelly to Earnest to record the conversation, no interference occurred and the contents of the conversations as recorded are admissible in evidence.\nThere was no violation of subsection (C).\nThe Order that suppressed the contents of the telephone conversations between Kelly and defendants is reversed.\nIF IT SO ORDERED.\nHERNANDEZ, J., concurs in result.\nWALTERS, J., dissents.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "WALTERS, Judge\n(dissenting).\nAt the behest of an investigator from the attorney general\u2019s office, Edwin A. Kelly permitted a recording device to be attached to his home and service station telephones, and he initiated three telephone calls to defendants Arnold and Christensen. The conversations with defendants were tape-recorded. Subsequently, all of the named defendants-appellants were indicted for restraint of trade violations. The trial court sustained motions to suppress the taped recordings, their transcriptions and testimony based on those conversations.\nThe trial court should be sustained, with the exception that testimony from Mr. Kelley regarding the conversations may be admitted.\nThe motions filed by defendants were based upon alleged violations by Kelly and the State of \u00a7\u00a7 30-12 \u2014 1, et seq., N.M.S.A. 1978, and the state and federal constitutions.\nSections 30-12-1, at the time the conversations were recorded, prohibited interference'with communications unless done under a court order, and defined such interference to be:\nA. displacing, removing, injuring or destroying any radio station, T.V. tower, antenna or cable, telegraph or telephone line, wire, cable pole or conduit belonging to another, or the material or property appurtenant thereto;\nB. cutting, breaking, tapping or making any connection with any telegraph or telephone line, wire, cable or instrument belonging to another;\nC. reading, hearing, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without his consent;\nD. preventing, obstructing or delaying the sending, transmitting, conveying or delivering in this state of any message, communication or report by or through telegraph or telephone; or\nE. using any apparatus to do or cause to be done any of the acts hereinbefore mentioned to aid, agree with, comply or conspire with any person to do, or permit or cause to be done any of the acts hereinbefore mentioned.\nNone of the prohibited acts are permitted; one need not violate each subsection in order to come under the interdiction of the statute.\nThe State has premised its entire argument on Kelly\u2019s acquiescence to \u201ctap\u201d the telephones in Kelly\u2019s business and home. Some argument is presented questioning whether Kelly\u2019s \u201crental\u201d of the telephones from Mountain Bell brings the telephones within the prohibition against \u201ctapping * * * any * * * instrument belonging to another,\u201d assuming that Kelly was the person who did the tapping. This argument is specious. The tapping was done by the State with Kelly\u2019s acquiescence. There is no contention that the State owned the telephones. Whether Kelly or Mountain Bell owned the telephones, the State did not..\nThe statute prohibits tapping any \u201cinstrument belonging to another\u201d; it also prohibits \u201chearing * * * taking or copying any message * * * intended for another * * * without his consent.\u201d\nAccording to Kelly, Christensen believed he was talking to Kelly\u2019s son; thus, Christensen\u2019s message was intended neither for Kelly nor Ernest. He was not advised that his conversation was being taped, so patently he did not consent. Likewise, Arnold was not told of the recording device nor asked whether he consented to anyone other than Kelly \u201chearing * * * or copying\u201d his message.\nThe majority opinion discusses at length the meaning of \u201ctapping,\u201d and whether the consent of one of the participants is sufficient to overcome the prohibitions of \u00a7 30-12-1C. This regard for the exceptions allowed by the statute overlooks the constitutional objections raised by the appellants which, in my view, should command our first attention.\nThe statutory language referring to \u201cwithout his consent\u201d is ambiguous. New Mexico, unfortunately, provides no legislative history or committee commentary to assist the court in interpreting its intentions. Nevertheless, it is hornbook law that the Legislative may not transcend constitutional limitations regardless of its intent, and a statute which is interpreted to permit one party to waive another\u2019s constitutional right to privacy is no more acceptable than if we were to approve the innkeeper\u2019s permission for search of a guest\u2019s room. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Thus, whether we define the \u201chis consent\u201d of \u00a7 30-12-1C to mean \u201cconsent of the sender\u201d or \u201cconsent of the receiver,\u201d if one may not consent for the other, then the \u201ctapped\u201d and taped conversations of both parties may not be used as evidence against the unsuspecting, unconsenting speaker. This exclusion is mandated by a literal reading of Article II, \u00a7 10, of the New Mexico Constitution, and from an appreciation for decisions from other state courts interpreting similar provisions in their state constitutions, notwithstanding federal decisions interpreting the Fourth Amendment to the United States Constitution differently. Each state has power to require higher police practice standards than is imposed by the federal Constitution.\nWe must keep foremost in our minds the purpose of the statute itself, which is a clear statement of the Legislature\u2019s recognition of the individual\u2019s right to privacy. Article 12 of the New Mexico\u2019s Chapter 30 of the statutes is entitled \u201cAbuse of Privacy.\u201d It is a part of our Criminal Code. It makes criminal any of the acts described in Subsections A through E of \u00a7 30-12-1.\nThus it is irrelevant how one defines \u201ctapping.\u201d It is not denied that the communication was copied without the consent of one of the parties, and that it was done by means of an apparatus furnished by one who agreed or conspired with another to do what the statute says may not be done.\nI think the majority opinion misreads Justice White\u2019s concurring opinion Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976). There, an electronic listening device was attached to a public telephone booth and defendant\u2019s part of telephone conversations was recorded. The tapes were introduced at his trial. The majority opinion declared at 88 S.Ct. 512 that \u201c[t]he Government\u2019s activities in electronically listening to and recording the petitioner\u2019s words violated the privacy which he justifiably relied and thus constituted a \u2018search and seizure\u2019 within the Fourth Amendment.\u201d The Court reiterated the necessity for presenting to a \u201cduly authorized magistrate\u201d the facts showing a need for investigation in order to obtain proper authorization for the \u201climited search and seizure\u201d necessary under the circumstances. The entirety of the paragraph from Justice White\u2019s concurring opinion, part of which is quoted at page 1216 of the majority opinion is:\nI agree that the official surveillance of petitioner\u2019s telephone conversations in a public booth must be subjected to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. (My emphasis.)\nJustice White\u2019s note referred to in the majority opinion cites Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), as authority for the above comments made by Justice White, and continues:\nThe present case deals with an entirely different situation, for as the Court emphasizes the petitioner \u201csought to exclude * * * the uninvited ear,\u201d and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening.\nThis, too, is a case where defendants \u201csought to exclude * * * the uninvited ear.\u201d They reasonably assumed that only Kelly was listening to their conversation.\nThe Drielick case cited in the majority opinion reached the result it did only because it was a case pending on appeal at the time People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), was decided. Beavers held that, unless authorized by a search warrant, under a Michigan constitutional provision which parallels ours a participant may not monitor and transmit to law enforcement officers a conversation he has with another, without the other\u2019s consent. But Beavers was limited to prospective application only. Thus, the Drielick decision required adherence to the Michigan precedents not decided under Michigan\u2019s constitution and prior to Beavers, which permitted warrantless eavesdropping and recording of telephone calls made with cooperation of a police informant or witness.\nWe may not overlook, either, that the Drielick comment, quoted at page 1217 of the majority opinion, referred to Michigan\u2019s evaluation of federal decisions interpreting the federal Fourth Amendment, since Drielick was a federal Fourth Amendment challenge rather than an alleged violation of Michigan\u2019s constitutional provision.\nWithout citation, the opinion declares that the rule of State v. Chort, 91 N.M. 584, 577 P.2d 892 (Ct.App.1978), i. e., that a reasonable expectation of privacy is constitutionally protected, \u201cis not applicable to telephone conversations.\u201d Chort also pleaded Art. II, \u00a7 10, of the New Mexico Constitution as a barrier to use of the evidence obtained without a search warrant. It appears that the opinion, however, was bottomed on the Fourth Amendment privilege. Nevertheless, I see no reason to declare that the rule of Chort cannot apply to telephone conversations, particularly since defendants here claim they seek to preserve as private that which occurred an area not accessible to the public. How much more so should the rule of Chort apply here than there, where defendant\u2019s outdoor garden was held to be protected against warrantless intrusion!\nFinally, New Mexico is not bound by plurality opinions of the \u2022 United States Supreme Court (or by precedent of federal courts of appeal) which rule upon the limits of federal constitutional rights; and only majority opinions of the Court are controlling with respect to our construction of federal constitutional provisions. People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975). The New Mexico Constitution is an independent document, and it is \u201cour responsibility to separately define and protect the rights of [New Mexico] citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.\u201d People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976).\nTo determine that, at least in New Mexico, a statute authorizing eavesdropping and its techniques must be read to require consent of both parties to record, and thereafter use as evidence, the entire conversation obtained by an apparatus attached to the telephone or telephone lines, in order to bring the statute within constitutional limitations, does not deprive law enforcement officers of these useful tools. It merely insists that unless the parties consent to their conversation being taped, an investigator wishing to do so must present sufficient probable cause to a neutral magistrate and specifically inform him of the need for the investigation, so that an ex parte order authorized under \u00a7 30-12-2, or a search warrant, may be issued. Unless the statute be so read, the legislature has undertaken to pass an unconstitutional act, and it is without power to do so.\nOne need only remember his American history to recall that assurance of a federal Bill of Rights that would reflect corresponding provisions of one or more existing state constitutions was the only reason why many of our original states ratified the Constitution of the United States. It is through the lessons of history that we should be impressed not only with the privilege and duty to resist encroachments upon the rights expressly protected by the New Mexico Constitution, but our obligation to decline to follow those jurisdictions which whittle away the protections stipulated for in their constitutions.\nI, therefore, respectfully dissent, and would affirm the trial court\u2019s suppression of the illegally obtained tapes. I would reverse the order of the trial court insofar as it might be construed to prohibit Kelly from testifying about the telephone conversations. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).\n. People v. Plamondon, 64 Mich.App. 413, 236 N.W.2d 86 (1975); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975); Breese v. Smith, 501 P.2d 159 (Alaska 1972); State ex rel Arnold v. County Court, 51 Wis.2d 434, 187 N.W.2d 354 (1971).\n. See decisions collected at footnote 11, People v. Drielick, 400 Mich. 559, 255 N.W.2d 619 (1977).\n.Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974). A conscientious, meaningful judicial process does not contemplate lining up all \u201cpro\" cases on one side of the fence, and all \u201ccon\u201d cases on the other, and then falling off on the side with the greater number.", "type": "dissent", "author": "WALTERS, Judge" } ], "attorneys": [ "Jeff Bingaman, Atty. Gen., Donald B. Monnheimer, James Wechsler, Asst. Attys. Gen., Santa Fe, for plaintiff-appellant.", "Robert C. Knight, Moore & Golden, Los Alamos, for defendants-appellees Hugh Arnold and Max Chavez.", "John Wentworth, Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, Santa Fe, for defendant-appellee Roy Christensen.", "Thomas A. Simons, IV, Sommer, Lawler, Scheuer & Simons, Santa Fe, for defendants-appellees Robert E. Shelton and Speedway Drive-In Food Stores, Inc." ], "corrections": "", "head_matter": "610 P.2d 1214\nSTATE of New Mexico, Plaintiff-Appellant, v. Hugh ARNOLD, Max Chavez, Roy Christensen, Robert E. Shelton, and Speedway Drive-In Food Stores, Inc., Defendants-Appellees.\nNo. 3705.\nCourt of Appeals of New Mexico.\nJuly 12, 1979.\nJeff Bingaman, Atty. Gen., Donald B. Monnheimer, James Wechsler, Asst. Attys. Gen., Santa Fe, for plaintiff-appellant.\nRobert C. Knight, Moore & Golden, Los Alamos, for defendants-appellees Hugh Arnold and Max Chavez.\nJohn Wentworth, Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, Santa Fe, for defendant-appellee Roy Christensen.\nThomas A. Simons, IV, Sommer, Lawler, Scheuer & Simons, Santa Fe, for defendants-appellees Robert E. Shelton and Speedway Drive-In Food Stores, Inc." }, "file_name": "0385-01", "first_page_order": 421, "last_page_order": 428 }