concurring specially.
Although I agree with Division 2 of the majority opinion which reverses the judgment below, I must respectfully disagree as to Division 1 as I find that appellant violated OCGA § 16-11-62 (4) when he intercepted the conversation between Officer Canada and McCord. While it is true that the expectation of privacy analysis adopted by the majority has been applied in cases involving the federal wiretap statute and in similar contexts in other states, the issue in this case is not whether the interception of cellular phone conversations violates the U. S. or Georgia Constitutions, the federal statute, or the statutes of other states modeled after the federal statute but whether it offends the Georgia statute. Unlike the federal statute prohibiting the wilful interception and disclosure of wire, oral and electronic communication, which defines oral communication as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation” (18 USC § 2510 (2)) and which specifically excludes “the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit” (18 USC § 2510 (12) (A)), OCGA § 16-11-62 (4) simply prohibits any intentional and secret interception “by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication.” The cellular telephone is not a new invention. The 1986 overhaul of the federal wiretap statute included certain electronic communication for the first time and specifically excluded cordless telephone communication. In the ensuing years, the Georgia legislature has not seen fit to qualify the term “telephone” to distinguish telephonic communication involving a wire or cable connection between callers and telephonic communication transmitted by radio waves. Therefore, application of the clear and unambiguous language of the Georgia statute to the facts of this case does not require the expectation of privacy *473analysis. “[A] state law must meet the minimum standards of [federal law] in protecting privacy but may impose more stringent requirements. . . .” Ellis v. State, 256 Ga. 751, 754 (2) (353 SE2d 19) (1987). In my view, the Georgia statute is proof that, in furtherance of its policy, the legislature intended to set forth more stringent requirements involving wiretapping and eavesdropping. See, e.g., Ellis, supra.
Decided September 29, 1992 — Reconsideration denied November 25, 1992 Cook & Palmour, Bobby Lee Cook, L. Branch Connelly, for appellant. Stephen F. Lanier, District Attorney, Lisa W. Pettit, Tambra P. Colston, Assistant District Attorneys, for appellee.Moreover, OCGA § 16-11-62 (4) prohibits the intentional and secret interception “by the use of any device, instrument or apparatus. ...” A “device” is “an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds . . . which involves in its operation electricity, electronics, infrared, laser or similar beams. . . .” OCGA § 16-11-60 (1). This definition is sufficiently broad to include a radio scanner, and even though the conversation was transmitted in part over FM radio waves, because McCord was using a conventional telephone, the secret use of the device was strictly prohibited. That prohibition is not to be ignored despite the widespread availability of radio scanners in the absence of clear direction to the contrary by the General Assembly. Accordingly, appellant’s interception of the conversation was illegal, and the trial court did not err in refusing to allow appellant to impeach Officer Canada with a transcript of the conversation. OCGA § 16-11-67.