2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 12 - Abuse of Privacy
Section 30-12-1 - Interference with communications; exception.
Interference with communications consists of knowingly and without lawful authority:
A. displacing, removing, injuring or destroying any radio station, television tower, antenna or cable, telegraph or telephone line, wire, cable, pole or conduit belonging to another, or the material or property appurtenant thereto;
B. cutting, breaking, tapping or making any connection with any telegraph or telephone line, wire, cable or instrument belonging to or in the lawful possession or control of another, without the consent of such person owning, possessing or controlling such property;
C. reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof;
D. preventing, obstructing or delaying the sending, transmitting, conveying or delivering in this state of any message, communication or report by or through telegraph or telephone; or
E. using any apparatus to do or cause to be done any of the acts hereinbefore mentioned or to aid, agree with, comply or conspire with any person to do or permit or cause to be done any of the acts hereinbefore mentioned.
Whoever commits interference with communications is guilty of a misdemeanor, unless such interference with communications is done:
(1) under a court order as provided in Sections 30-12-2 through 30-12-11 NMSA 1978; or
(2) by an operator of a switchboard or an officer, employee or agent of any communication common carrier in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his services or to the protection of rights or property of the carrier of such communication; or
(3) by a person acting under color of law in the investigation of a crime, where such person is a party to the communication, or one of the parties to the communication has given prior consent to such interception, monitoring or recording of such communication.
History: 1953 Comp., § 40A-12-1, enacted by Laws 1963, ch. 303, § 12-1; 1973, ch. 369, § 1; 1979, ch. 191, § 1.ANNOTATIONS
Section 30-12-1 NMSA 1978 is not violated when telephone calls placed from a jail are recorded after the caller has been given notice that the recording will occur. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.
Recordings of telephone calls from jail. — Where defendant made telephone calls from jail requesting that defendant's friends be present at defendant's trial ostensibly to influence the testimony of the state's witnesses; and when a call was placed at the jail, a digital message informed both parties to the call that the call may be recorded and monitored, the trial court properly admitted the recordings into evidence. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.
Speaking in code. — In the absence of evidence that the defendant had actual notice that his telephone calls made in the booking area of the jail might be monitored, the defendant's talking in code is not sufficient to establish his implied consent to monitor the calls. Tape recordings of the defendant's telephone calls made in jail should have been suppressed. State v. Templeton, 2007-NMCA-108, 142 N.M. 369, 165 P.3d 1145.
Right of media access to judicial records. — The right of media access to judicial records serves the important function of ensuring the integrity of judicial proceedings and the law enforcement process. This right of access and inspection, however, may be limited by special circumstances and the exercise of sound discretion of the trial court. The right of inspection by the media does not extend beyond that available to the public generally. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982.
Materials not subject to disclosure unless used as evidence. — Except those matters actually introduced into evidence or utilized in open court, materials intercepted pursuant to this article are not subject to disclosure. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982.
Legislature did not intend to expose every person with telephone extension to criminal liability who allowed someone else to listen to his conversation. Robison v. Katz, 1980-NMCA-045, 94 N.M. 314, 610 P.2d 201, cert. denied, 94 N.M. 675, 615 P.2d 992.
Transmittal of face-to-face conversation. — Subsection C of this section pertains to telephone conversations or telegraph messages, and was not applicable to a face-to-face conversation transmitted to a listener by a device concealed on one of the participants in the conversation. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485.
Voluntary conversation invites risk of recording and transmission. — One who voluntarily enters into a conversation with another takes the risk that the other person on the line may memorize, record or even transmit the conversation. State v. Arnold, 1979-NMCA-087, 94 N.M. 385, 610 P.2d 1214, rev'd on other grounds, 1980-NMSC-030, 94 N.M. 381, 610 P.2d 1210.
Civil action permitted whether or not conviction achieved. — Section 30-12-11 NMSA 1978 provides a civil cause of action against any person who intercepts, discloses or uses, or procures any other person to intercept, disclose or use, such communications, without lawful authority to do so, regardless of whether that person has been convicted under this section. Templin v. Mountain Bell Tel. Co., 1982-NMCA-024, 97 N.M. 699, 643 P.2d 263, cert. quashed, 98 N.M. 51, 644 P.2d 1040.
Monitoring telephone calls made from jail. — Proof of consent to the interception of electronic communications may be shown by circumstantial evidence; thus, the defendant consented to interception of his phone calls from jail since he was aware of a written notice that calls were monitored and recorded. State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 337.
Antecedent justification. — The United States Supreme Court has held that there must be antecedent justification to a court, governed by precise procedures and guidelines, before wiretapping is employed. 1971 Op. Att'y Gen. No. 71-37.
Law reviews. — For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 74 Am. Jur. 2d Telecommunications §§ 36, 207, 211, 213, 214, 217.
Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer, 24 A.L.R.4th 1208.
Permissible warrantless surveillance, under state communications interception statute, by state or local law enforcement officer or one acting in concert with officer, 27 A.L.R.4th 449.
Eavesdropping on extension telephone as invasion of privacy, 49 A.L.R.4th 430.
Intrusion by news-gathering entity as invasion of right of privacy, 69 A.L.R.4th 1059.
"Caller ID" system, allowing telephone call recipient to ascertain number of telephone from which call originated, as violation of right to privacy, wiretapping statute, or similar protections, 9 A.L.R.5th 553.
Applicability, in civil action, of provisions of Omnibus Crime Control and Safe Streets Act of 1968, prohibiting interception of communications (18 USCS § 2511 (1)), to interception by spouse, or spouse's agent, of conversations of other spouse, 139 A.L.R. Fed. 517.
Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2520) authorizing civil cause of action by person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of Act, 164 A.L.R. Fed. 139.
86 C.J.S. Telegraphs, Telephones, Radio and Television §§ 120, 122.