Upon application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving wiretapping, eavesdropping or the interception of wire or oral communications within the district in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that:

1. A. there is probable cause for belief that a person is committing, has committed or is about to commit a particular offense enumerated in 30-12-2 NMSA 1978;
2. B. there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
3. C. normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed if tried, or appear to be too dangerous; and
4. D. there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted is being used or is about to be used in connection with the commission of such offense, or is leased to, listed in the name of or commonly used by the person alleged to be involved in the commission of the offense.

History: 1953 Comp., § 40A-12-1.3, enacted by Laws 1973, ch. 369, § 4.

ANNOTATIONS

Requirement for probable cause. — An affidavit was deficient with respect to an unnamed informant because, although it established the informant's reliability by stating that he had provided information in the past that led to a determination of probable cause for a search warrant and to arrests and prosecution of narcotics felons, the informant's basis of knowledge was lacking. 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.

An affidavit met the basis of the knowledge requirement because it related in detail the informant's meetings and conversations with the subject, and clearly described the underlying circumstances upon which the informant's information was based. 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.

Am. Jur. 2d, A.L.R. and C.J.S. references. — When do facts shown as probable cause for wiretap authorization under 18 USCS § 2518(3) become "stale," 68 A.L.R. Fed. 953.