A. The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in a state court 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 accompanying application, under which interception was authorized or approved. This ten-day period may be waived by the court if it finds that it was not possible to furnish the party with such information ten days before the trial, hearing or proceeding, and that the party will not be prejudiced by the delay in receiving such information.

B. Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the state or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication on the grounds that:

(1) the communication was unlawfully intercepted;

(2) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(3) the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing or proceeding unless there has been no opportunity to make such motion, or the person has not been aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall not be received as evidence. In addition to any other right of appeal, the state shall have the right to appeal from an order granting a motion to suppress made under this subsection, or to appeal the denial of an application for an order of approval, if the person making or authorizing the application shall certify to the judge granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order is entered and shall be diligently prosecuted.

History: 1953 Comp., § 40A-12-1.7, enacted by Laws 1973, ch. 369, § 8.

Cross references. — For motion to suppress, see Rule 5-212 NMRA.

Applicability. — Provisions of this section regulating admissibility of evidence authorized by court order were not applicable, even where there was no court order, to situation where overheard communication was a face-to-face conversation transmitted to a listener by concealed device. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485.

Purpose of disclosure requirement. — The purpose of the timely disclosure provision is to afford an aggrieved party an opportunity to file a pretrial motion to suppress. State v. Anderson, 1989-NMCA-096, 110 N.M. 382, 796 P.2d 603, cert. denied, 109 N.M. 232, 784 P.2d 419.

Distinction between Subsections A and B. — Subsection 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. Subsection B precludes the use of such evidence at any proceeding involving the defendant. State v. Anderson, 1989-NMCA-096, 110 N.M. 382, 796 P.2d 603, cert. denied, 109 N.M. 232, 784 P.2d 419.

State delaying in providing information. — In determining whether the right to a speedy trial was violated by pre-indictment delay, where the preliminary hearing was continued because the state did not provide the defendant with wiretap information at least ten days prior to the hearing, as required by this section, this delay was weighed against the state. State v. Manes, 1991-NMCA-025, 112 N.M. 161, 812 P.2d 1309, cert. denied, 112 N.M. 77, 811 P.2d 575, and cert. denied, 502 U.S. 942, 112 S. Ct. 381, 116 L. Ed. 2d 332 (1991).

Remedy for Subsection A violation. — The proper course of action for a court faced with a claim of violation of Subsection A 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. State v. Anderson, 1989-NMCA-096, 110 N.M. 382, 796 P.2d 603, cert. denied, 109 N.M. 232, 784 P.2d 419.

Right of press to evidentiary materials arises when materials become public. — The right of the press to copies of evidentiary materials does not arise until the materials become part of the public record or are played in open court. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982.

Determination of whether evidence subject to public inspection. — Any determination of whether items of evidence are properly subject to public inspection and copying must necessarily consider the likelihood of injury to parties not involved in the particular case at bar. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982.

Law reviews. — For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).