District Judge (specially concurring).
I concur in the result in the opinion as stated by Justice Federici.
In my view, the issue here is not a constitutional one. It is a matter of statutory construction which does not require tortured semantics to achieve what I believe to be the ascertainable legislative intent.
The citations which seek to justify the interception on the basis of federal cases in my view are readily distinguishable because of the variant statutes involved. State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 is, as pointed out in Justice Federici’s opinion, a distinguishable fact situation.
It is the factual predicate from which the instant situation arises which makes it clear to me that the intended application of the statute here at issue (§ 30-12-1, et seq., N.M.S.A. 1978), would not allow utilization of the communications interception and the subsequent admission into evidence as was propounded here. It must be made absolutely clear that because of the modification in the statutes subsequent to the events here that the limited finding and rule of this case is limited to these facts and these facts alone.
It is urged that the more recent case of State v. Glass, 583 P.2d 872 (Alaska 1978), requires the reversal of the Court of Appeals on a constitutional basis with this as a persuasive precedent and authority; I do agree that the line of argument is similar and that some suppression to some degree would be indicated given the Glass dicta, but again reiterate that I do not view this matter under the New Mexico Act as one invoking constitutional principals, but rather, the appropriate application of the statute then in effect. To allow or require that this case be controlled by such precedential citation would distort the true rule of the case, and I believe, could erroneously direct those seeking guidance under the amended act now in force and effect.
It is my view that the Court of Appeals should be reversed and the evidence suppressed in its entirety, and I concur in that result by Justice Federici.