concurring specially as to Division 2 (a).
I agree with the result reached by Division 2 (a) of the majority opinion, however, I do so for different reasons.
On appeal, the state argued that Georgia law does not prohibit a party to a telephone conversation from recording that conversation without the consent of the other party to the conversation, that the child’s father had consented to the state recording the conversation, and that, accordingly, the state was authorized, by Georgia law, to record the conversation without a warrant. The state seems to be unaware that there is a difference between a party to a conversation recording that conversation and the state recording that same conversation with the consent of one of the parties to the conversation. OCGA § 16-11-62 (1) provides that:
It shall be unlawful for . . . [a]ny person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place. . . .5
(Emphasis supplied.) OCGA § 16-11-66 provides two exceptions to OCGA § 16-11-62 (1)’s prohibitions. The first exception enables a conversation or message to be intercepted, recorded, and divulged when both parties thereto expressly or impliedly consent. The second exception enables a conversation or message to be intercepted, recorded and divulged when it was “initiated or instigated by a person and . . . constitutes the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto consents.” OCGA § 16-11-66. The only other exception to the prohibitions of OCGA § 16-11-62 (1) are found in OCGA § 16-11-64 which concerns interception by law enforcement officers pursuant to an investigative *167warrant.
Decided March 6, 1992 Reconsideration denied April 3, 1992. Hatcher, Johnson & Meaney, James A. Meaney III, for appellant. Ralph Van Pelt, Jr., District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.In the present case, because the investigator had not obtained an investigative warrant pursuant to OCGA § 16-11-64, the exception provided by that Code section does not apply. The telephone conversation at issue did not constitute the commission of a crime and was not directly in the furtherance of a crime and, thus, the second consent exception of OCGA § 16-11-66 does not apply. Finally, OCGA § 16-11-66’s first consent exception does not apply because appellant had not given his express consent to the interception, recording and divulging of the conversation and his questions at the outset of the conversation with the child seem to rule out any implied consent on appellant’s part. Because none of the exceptions to OCGA § 16-11-62 (1) applies in the present case, I too find that the tape recording was inadmissible. Accord Green v. State, 250 Ga. 610 (1) (b) (299 SE2d 544) (1983); Humphrey v. State, 231 Ga. 855 (4) (204 SE2d 603) (1974); and Judge Evans’ special concurrence in Cross v. State, 128 Ga. App. 837, 841-843 (198 SE2d 338) (1973).
The legislative intent behind Georgia’s statute governing wiretapping, eavesdropping, surveillance, and related offenses was expressed by the General Assembly as follows:
It is the public policy of this State and the purpose and intent of this Chapter to protect the citizens of this State from invasions upon their privacy. This Chapter shall be construed in light of this expressed policy and purpose. The employment of devices which would permit the clandestine overhearing, recording or transmitting of conversations or observing of activities which occur in a private place has come to be a threat to an individual’s right of privacy and, therefore, should be prohibited. It is further the purpose of this Chapter to provide to authorized law enforcement officers modern methods of crime detection and prevention under strict procedures and safeguards.
Ga. L. 1967, pp. 845-846.