State v. Anderson

• Decision Date: 07 November 1989
• Docket Number: No. 10889,10889
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Frank C. ANDERSON, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 603

796 P.2d 603

110 N.M. 382

STATE of New Mexico, Plaintiff-Appellant, v. Frank C. ANDERSON, Defendant-Appellee.

No. 10889.

Court of Appeals of New Mexico.

Nov. 7, 1989.

Certiorari Denied Dec. 12, 1989.

Hal Stratton, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Jacquelyn Robins, Chief Public Defender, Jonathan A. Abbott, Asst. Appellate Defender, Santa Fe, for defendant-appellee.

OPINION

BIVINS, Chief Judge.

The state appeals the suppression of evidence obtained as a result of the interception of a telephone conversation between defendant and another person. The evidence was suppressed pursuant to the district court's interpretation of NMSA 1978, Section 30-12-8(A) (Repl.Pamp.1984). We reverse.

FACTS

Pursuant to a court order authorizing the interception, the state tapped a telephone belonging to a person suspected of trafficking illegal drugs. The state recorded conversations between the suspect and defendant, and, based on that information as well as observations by police officers, police arrested defendant and charged him with conspiracy to traffic cocaine. Defendant pled not guilty to the charge, and the case was remanded to magistrate court for a preliminary hearing. After the preliminary hearing had begun, defendant moved for a continuance. The purpose of the continuance was to allow defendant to file, in the district court, ¹ a motion to suppress the wiretap evidence and evidence derived therefrom, due to the state's failure to provide defendant with a copy of the application for the wiretap and the court order authorizing the tap. Section 30-12-8(A) requires the state to provide those documents to defendant not less than ten days before any hearing, trial, or other proceeding at which the state plans to use the evidence obtained as a result of the tap. The state did not comply with that requirement in this case. After a hearing on the matter, the district court agreed with defendant that the material should be suppressed.

DISCUSSION

Section 30-12-8(A) states that "[t]he contents of any intercepted wire * * * communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding * * * unless each party, not less than ten days before the trial, hearing or proceeding has been furnished with a copy" of the court order and application for interception (the statute allows an exception to the ten-day requirement, but that exception is not at issue in this case). The district court apparently interpreted this provision as requiring the automatic suppression of such evidence, not only for the proceeding at which the state proposed to use it but for all subsequent proceedings. The district court also apparently interpreted the provision as automatically precluding the state from taking any steps to cure the failure to provide defendant the necessary documents. We disagree with the district court's conclusions.

Section 30-12-8(A) is virtually identical to 18 U.S.C.S. Section 2518 n. 9 (1979), which is part of the federal statute concerning interception of communications. Federal cases discussing the ten-day disclosure requirement, therefore, are persuasive authority. See Valles v. State, 90 N.M. 347, 563 P.2d 610 (Ct.App.1977) (interpretations of similar federal statute, while not binding, are persuasive). The purpose of the timely disclosure provision is to afford an aggrieved party an opportunity to file a pretrial motion to suppress. United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986); United States v. Winter, 663 F.2d 1120 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983).

The provision is not designed to give a defendant grounds for suppression of evidence at all subsequent proceedings in the case. Instead, it merely ensures that a defendant will have the opportunity to raise the substantive grounds for suppression provided by Section 30-12-8(B). See id. It does so by preventing the use of intercepted communications at a particular proceeding unless the defendant has had a reasonable opportunity, prior to that proceeding, to examine the application and order to ensure that they comply with applicable law. Compare Sec. 30-12-8(A) (contents of intercepted communications shall not be introduced into evidence or otherwise disclosed in any trial, hearing, or other proceeding, unless defendant has been provided appropriate documents at least ten days before the trial, hearing, or other proceeding) with Sec. 30-12-8(B) (any aggrieved person may move to suppress the contents of any intercepted communications, on several substantive grounds). Thus, Section 30-12-8(A) precludes the use of the evidence at a particular hearing or trial, unless the defendant has had an opportunity to review the appropriate documents and to move to suppress the evidence. Section 30-12-8(B) precludes the use of such evidence at any proceeding involving the defendant.

Interpreting the provision as the district court did, and as defendant urges on appeal, would not carry out the purpose of the disclosure requirement. See Arnold v. State, 94 N.M. 381, 610 P.2d 1210 (1980) (a court must ascertain and give effect to the intention of the legislature in construing a statute). As we have stated, the purpose is to allow defendant the opportunity to examine the relevant materials to determine whether the communication was intercepted in accordance with law, before the evidence is used against him at a particular proceeding. The purpose is not to provide another means of suppressing intercepted communications, in addition to the substantive grounds provided in Section 30-12-8(B).

Federal courts have rejected a strict construction of the requirement, holding instead that where the purpose of the provision is satisfied, wiretap evidence may properly be used against a defendant. See United States v. Berrios-Berrios, 791 F.2d 246 (2d Cir.1986) (where wiretap transcripts had been used as evidence in a previous hearing, and defendant had opportunity to examine transcripts for over a month before bail hearing and thus to file motion to suppress, transcripts were properly allowed into evidence at bail hearing despite violation of Section 2518 n. 9); cf. United States v. Accetturo, 783 F.2d 382 (3d Cir.1986) (where government used wiretap evidence at magistrate proceedings, without objection from defendant, defendant waived rights under Section 2518 n. 9 for later proceedings); United States v. Winter (stating, in alternate holding, that where defendant knew what information the government had he was not prejudiced by asserted violation of Section 2518 n. 9). The proper course of action for a court faced with a claim of violation of Section 30-12-8(A), therefore, is to decide whether the purposes of the statute have been or can be fulfilled so that the evidence can be used in the particular proceeding at issue, or whether the evidence should be excluded, but only from that proceeding.

As an illustration of how our interpretation of the statute operates, we turn to the facts of this case. Defendant appeared at a preliminary hearing, at which the state wanted to use evidence derived from intercepted communications. Defendant objected to the use of such evidence, because he had not been provided a copy of the application for and order authorizing the interception. The proper...