State v. Arnold

610 P.2d 1214, 94 N.M. 385

• Court: New Mexico Court of Appeals
• Decided: July 12, 1979
• Docket: No. 3705
• Status: Published

Opinions

OPINION

SUTIN, Judge.

By grand jury indictment, defendants were charged with restraint of trade in violation of § 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.

This 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’ motion to suppress, Kelly was the sole witness. The following summarizes that proceeding.

James W. Earnest, special investigator for the Attorney General obtained Kelly’s cooperation in the investigation of possible price fixing in Los Alamos County. At Earnest’s 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.

At the close of the hearing on defendants’ motion to suppress, the court said:

As to the Motion to Suppress statements’ 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.]

We respect the sentiments of the trial court, but it is mistaken as to the law. The legislature recognized the deficiencies in the “Abuse of Privacy Act” and amended it by Laws 1979, Ch. 191. As amended, § 30-12-1 begins:

Interference with communications consists of knowingly and without lawful authority. * * * [Emphasis added.]

“[A]nd without lawful authority” 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.

The Order of the trial court reads in pertinent part:

IT 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.

This Order was entered without reference to the Abuse of Privacy Act, § 30-12-1, et seq., or the Fourth Amendment.

The 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.

Based upon the reasons given, the Order entered can be summarily reversed. However, at the hearing, defendants relied on § 30-12-1 and the Fourth Amendment. We feel compelled to answer because the liberty of defendants is at stake.

This issue is a matter of first impression.

Article 12 of the Criminal Code, entitled “Abuse of Privacy” contains the following title:

An act relating to communications; providing for interception of wire or oral communications under court order * *. [Emphasis added.]

The pertinent parts of § 30-12-l(B), (C) and (E) read:

Interference with communications consists of knowingly:

* * * * * *

B. cutting, breaking, tapping or making any connection with any * * * telephone line * * * belonging to another ;

C. reading, hearing * * * taking or copying any message, communication or report intended for another by * ■ * telephone without his consent;

******

E. 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.]

The purpose of the Act is to protect an individual’s privacy of communication against unjustified intrusion. “Yet, 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.” State v. Wigley, 210 Kan. 472, 502 P.2d 819, 821 (1972).

A. The telephone conversations between Kelly and defendants are admissible in evidence.

Justice 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:

* * * 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.]

A note followed this statement, which, absent citation of authorities, reads:

* * * 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.

We 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).

In Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, 511 (1977) the court said:

No 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.

One 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).

Federal 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:

* * * No distinction has been made between electronic monitoring of face-to-face conversations and of telephonic communications. [255 N.W.2d at 622-3.]

In the instant case, defendants took the risk that Kelly would make public what he heard by telephone. Indeed, Wigley quotes the following from §§ 4.1 and 4.2 of the American Bar Standards relating to Electronic Surveillance, page 127:

“The 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.” [502 P.2d at 822-23.]

Defendants 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’s garden which was surrounded by an almost solid five foot fence. The court said:

The 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 * * *.

This rule is not applicable to telephone conversations.

The trial court erred in suppressing the telephonic conversations.

B. The State did not unlawfully intercept the telephone conversation in violation of subsection (B) of § 30-12-1.

Subsection (B) of § 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.

A “tap” has been defined as “to cut in on (a telephone or telegraph wire) to get messages, information, or evidence.” Webster’s Third International Dictionary (1966), p. 2339. The State did not tap the telephone line.. Neither did the State make a “connection” 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’s telephone line, a mere accessory designed to preserve the contents of the communication. United States v. Harpel, 493 F.2d 346 (10th Cir. 1974).

The “telephone line,” is distinguished from the “telephone.” A “telephone” is an instrument in which sound is converted into electrical impulses for transmission by a “telephone line,” which, of course, belongs to the telephone company. To whom the “telephone line” belonged is immaterial. The State did not tap or make connection with the telephone line.

The State did not violate subsection (B).

C. The State did not unlawfully intercept the telephone conversations in violation of subsection (C) of § 30— 12-1.

Subsection (C) of § 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 “without his consent.” “It 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.” Rogers v. Ulrich, 52 Cal.App.3d 894, 125 Cal.Rptr. 306, 309 (1976).

Let us turn to the phrase “without his consent.” To clarify this subsection, the legislature amended subsection (C) to read:

* * * without the consent of a sender or intended recipient thereof.

The legislature intended to express its view of the meaning of the phrase “without his consent.” It means “without the consent of one of the parties.” If the consent of one of the parties is obtained, the messages are admissible in evidence. American Bar Association Standards relating to Electronic Surveillance, § 4.1. See, State v. Wigiey, supra.

Subsection (C) stands alone among the states whose statutes have been read. In Wigiey, the Breach of Privacy Act referred to interception “without the consent of the sender or receiver.” The consent of one of the parties was sufficient. In the eavesdropping section, where consent was ambiguous, and the court was left to its “own bare-bone resources,” it resolved the issue in favor of the admissibility of the evidence.

Arnold 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. § 26-3006. In Toomey, an investigator listened in on various conversations made by defendant as sender but without defendant’s consent. The State did not have the consent of the sender and receiver, and defendant was protected. Toomey does not assist defendants.

We 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’ position.

Christensen seeks to escape subsection (C). During his conversation with Kelly, Christensen thought he was talking to Kelly’s son; that Kelly’s son was the “intended recipient.” 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’s 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 “intended recipient.”

Consent 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.

There was no violation of subsection (C).

The Order that suppressed the contents of the telephone conversations between Kelly and defendants is reversed.

IF IT SO ORDERED.

HERNANDEZ, J., concurs in result. WALTERS, J., dissents.