concurring in part, dissenting in part.
I join the majority in reversing defendant’s conviction under ORS 165.540(1) (a) for tape recording a police radio broadcast without the consent of at least one of the participants. I dissent, however, from the majority’s affirmance of defendant’s conviction under ORS 165.540(1)(c).
The majority asserts that defendant violated ORS 165.540(1)(c) because she tape recorded Officer Shadwick and the other police officer’s conversations with her and her companions without specifically informing the police that she was doing so. It is important to understand what took place here, factually. As the majority acknowledges, before the officers arrived, defendant had been recording the police broadcast for *265some time, the officers knew that defendant was using a scanner, and Shadwick knew that defendant was carrying a tape recorder. While defendant was recording the police broadcast, the officers arrived uninvited and the tape recorder recorded the ensuing interrogation. The trial court found that
“[defendant] had [the tape recorder] on believing that she was entitled to record the police conversation that she heard on the scanner and that is the reason she had the recording device on in the first place.” (Emphasis supplied.)
On arrival, the police initiated the conversation by commanding defendant and her companions, “Hang on right there all of you” (emphasis supplied) and immediately began to interrogate them while defendant’s scanner was on and she was recording the radio broadcast.1 Shortly after the inter*266rogation commenced, the police asked defendant about her tape recorder.
It is absurd to state that, in her situation, defendant was obliged specificially to inform the officers that she was tape recording the conversation. When the police stopped her and her companions, she was already recording what she heard on the scanner and, as the trial court found, that is why she had her recorder on “in the first place.” She was not obliged to turn off the recorder or inform the officers that she was tape recording the broadcast. It makes no sense to suggest that when the officers commanded, “Hang on there,” defendant was required to interrupt and say, “Excuse me, officers, but I must inform you that I am tape recording this conversation.”
Nothing in the legislative history of ORS 165.540(l)(c) indicates that the legislature intended that a person in the position that the police suddenly put defendant must immediately inform the police that her tape recorder is recording the conversation. So to apply the literal words of ORS 165.540(1) (c) produces a harsh and unreasonable result that cannot further the legislative purpose of protecting the privacy of the people from improper surveillance.2 In Johnson v. Star Machinery Co., 270 Or 694, 704, 530 P2d 53 (1974), the court said:
“When [the plain] meaning [of a statute] has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words.” Quoting US v. Amer. Trucking Ass’ns., 310 US 534, 542, 60 S Ct 1059, 84 L Ed 1345 (1940).
See also State ex rel Cox v. Wilson, 277 Or 747, 750, 562 P2d 172 (1977); State ex rel Juv. Dept. v. Gates, 56 Or App 694, 699, 642 P2d 1200 (1982).
Although the undisputed facts show the absurdity of applying the words of the statute to defendant, the majority *267responds that she did not at any time raise that argument, 101 Or App at 262, and, therefore, it should not be considered. Defendant did raise the issue, both below and here. In her sixth assignment of error, she asserts that she can not be prosecuted under ORS 165.540(1)(c) because the statute does not apply to her, although her particular argument is that she is exempt under ORS 165.540(7)(a) and (c), formerly ORS 165.540(6)(a) and (c). In State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988), the Supreme Court emphasized the distinctions
“between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. * * * The first ordinarily is essential, the second less so, the third least.”
This court may and should consider the issue and the argument that I discuss here. I would reverse defendant’s conviction under ORS 165.540(l)(c).
Joseph, C. J., and Riggs, J., join in this opinion.The transcript of the taped conversation from the time that the police stopped defendant and her companions reads:
“[Officer ?]: Hang on right there all of you. [Unintelligible.] Had your Birthday yet Tom?
“Tom: No. [Unintelligible conversation.]
“[Officer ?]: Put your hands behind your back, put your hands behind your back now.
“Tom: I put 'em behind my back. [Unintelligible conversation.]
“Shadwick: How are you doing there Shelly, Ruth, whatever you’re called these days. [Unintelligible.]
“Bichsel: What do you see * * *.
“[Officer ?]: What do you have in your hand, what is this?
“Bichsel: A tape recorder.
“[Officer ?]: Are you taping this right now?
“Bichsel: [No response.]
“[Officer ?]: Well are you? Are you taping this right now?
“Bichsel: [Either uh-huh or un-un.]
“[Officer ?]: Ok turn around, put your hands behind your back.
“Bichsel: Why, what for?
“[Officer ?]: You cannot tape a conversation, it’s against the law.
“Bichsel: Who said?
“[Officer ?]: I do, let go of it.
“Bichsel: It’s not a tape, it’s not admissible as evidence without a statement you know.
“[Unintelligible conversation.]”
Nothing in State v. Knobel, 97 Or App 555, 777 P2d 985 (1989), compels a different result.