2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 12 - Abuse of Privacy
Section 30-12-3 - Form of application.

Each application for wiretapping, eavesdropping or the interception of any wire or oral communication shall be made in writing upon oath or affirmation to a judge of a district court and shall state the applicant's authority to make such application. Each application shall include:

A. the identity of the investigative or law enforcement officer making the application and the officer authorizing the application;

B. a complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including:

(1) details as to the particular offense that has been, is being or is about to be committed;

(2) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(3) a particular description of the type of communication sought to be intercepted; and

(4) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

C. a complete statement as to whether other investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried, or appear to be too dangerous;

D. a statement of the period of time for which the interception is required to be maintained; if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur thereafter shall be required;

E. a complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, which were made to any judge for authorization to intercept or for approval of interceptions of wire or oral communications involving any of the same persons, facilities or places specified in the application and the action taken by the judge on each such application; and

F. where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

History: 1953 Comp., § 40A-12-1.2, enacted by Laws 1973, ch. 369, § 3.

Requirement for oath or affirmation. — A notary public is not required to administer the formalities of an oath embodied in Section 14-13-1 NMSA 1978 or an affirmation under Section 14-13-2 NMSA 1978 in order for a sworn statement to be deemed as given under oath or affirmation in accordance with this section. State v. Knight, 2000-NMCA-016, 128 N.M. 591, 995 P.2d 1033, cert. denied, 128 N.M. 689, 997 P.2d 821, overruled on other grounds by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376.

When Paragraph E of Rule 5-211 NMRA is read together with this section, it is clear that the latter only requires that an application be "in writing upon oath or affirmation" and directed to a district court judge. The affiant need not make the oath or affirmation in front of a judge. State v. Knight, 2000-NMCA-016, 128 N.M. 591, 995 P.2d 1033, cert. denied, 128 N.M. 689, 997 P.2d 821, overruled on other grounds by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376.