RUPLEY v. STATE, 93 Nev. 60 (1977)

560 P.2d 146

No. 8876Supreme Court of Nevada.
February 16, 1977

Appeal from Second Judicial District Court, Washoe County; Peter I. Breen, Judge.

David Hamilton, Reno, for Appellant and Cross-Respondent.

Robert List, Attorney General, Carson City; and Larry R. Hicks, District Attorney, Washoe County, for Respondent and Cross-Appellant.

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OPINION[*]

Per Curiam:

Richard E. Rupley was ordered to stand trial for possession and sale of a controlled substance (cocaine), felonies under NRS 453.336 and 453.321. The charges were based on several incriminating telephone conversations which had been tape-recorded. A timely filed motion to suppress the recorded conversations was granted in part and denied in part. Rupley here attempts to appeal from the portion of the order which denied, in part, his motion. Rupley is not authorized to appeal at this time. NRS 177.015(2); NRS 179.510. However, the state’s cross-appeal, from that part of the order which granted Rupley’s motion to suppress, although lacking merit, is permissible at this time. NRS 179.510.

The district judge determined the telephone conversations in question were intercepted without the authorization required by the “wiretap statutes,” NRS 179.410 et seq., and they were, therefore, inadmissible.[1]

NRS 179.430, which is patterned on the federal act, defines “intercept” as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device or of any sending or receiving

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equipment.“[2] Here, a police officer acquired the contents of the wire communications between Rupley and an informant by attaching a suction-cup device to the receiver of the informant’s telephone.[3] Our statute clearly makes such a device “proscribed receiving equipment,” and NRS 179.500 requires that court authorization be obtained prior to its use. See United States v. Turk, 526 F.2d 654 (5th Cir. 1976), which so holds, even under the limited language of the federal act.

The state also advances the novel argument that testimony regarding the intercepted telephone conversations is admissible because the witnesses were testifying from their personal recall of the conversations with the defendant, and not from the illegally obtained tapes. NRS 179.505 provides for a motion to “suppress the contents of any [illegally] intercepted wire or oral communications.” (Emphasis added.) NRS 179.420 defines contents as “any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.” (Emphasis added.)

Perceiving no error in the district judge’s ruling, we ORDER the appeal and the cross-appeal dismissed.