State v. Brye , 304 Neb. 498 ( 2019 )


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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. BRYE
    Cite as 
    304 Neb. 498
    State of Nebraska, appellee, v.
    Curtis R. Brye, Jr., appellant.
    ___ N.W.2d ___
    Filed November15, 2019.   No. S-19-061.
    1. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law which an appellate court reviews independently of the
    lower court.
    3. Criminal Law: Motions to Suppress. No evidence should be sup-
    pressed because of technical irregularities not affecting the substantial
    rights of the accused.
    4. Intercepted Communications. Substantial but not strict compliance
    with the Nebraska wiretap statutes is required.
    5. ____. Interception must be conducted in such a manner as not to violate
    substantive rights.
    6. Intercepted Communications: Time. An application to intercept under
    Neb. Rev. Stat. § 86-291 (Reissue 2014) must be submitted to the
    Attorney General in close enough proximity to the submission to the
    court that the grounds upon which the application is based are equally
    applicable and the Attorney General could issue its recommendation
    with sufficient time so the court could timely consider it in making its
    determination.
    7. Intercepted Communications: Judgments. Because interception under
    the Nebraska wiretap statutes occurs both at the origin or point of recep-
    tion and where the communication is redirected and first heard, both of
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    304 Neb. 498
    these locations must be considered when deciding whether interception
    is within a court’s territorial jurisdiction.
    8. Intercepted Communications: Words and Phrases. A court can autho-
    rize interception of communications within its territorial jurisdiction,
    and this interception occurs both at the origin or point of reception and
    where the communication is redirected and first heard.
    Appeal from the District Court for Douglas County: Gary
    B. Randall, Judge. Affirmed.
    Stuart J. Dornan, of Dornan, Troia, Howard, Breitkreutz &
    Conway, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Funke, J.
    Curtis R. Brye, Jr., appeals his conviction of criminal con-
    spiracy to distribute crack cocaine. In doing so, Brye chal-
    lenges the district court’s failure to suppress evidence obtained
    during and derived from an electronic interception of his cel-
    lular telephone communications. Brye claims the State failed
    to comply with Neb. Rev. Stat. § 86-291 (Reissue 2014) by
    submitting to the district court an application to intercept
    Brye’s communications 2 days after submitting the application
    to the Attorney General. Brye also claims the interception of
    his communications while he was outside the State of Nebraska
    was impermissible and beyond the court’s authority under Neb.
    Rev. Stat. § 86-293(3) (Reissue 2014). For the reasons set forth
    herein, we affirm.
    BACKGROUND
    From April 2017 to January 2018, an FBI task force con-
    ducted an investigation using a confidential informant (CI) to
    purchase controlled substances from David Gills. One such
    controlled buy occurred on August 24, 2017, when the CI
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    STATE v. BRYE
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    purchased crack cocaine from Gills. On that occasion, the CI
    contacted Gills by telephone to arrange the exchange. Before
    the exchange occurred, law enforcement observed Brye come
    from his residence and provide Gills crack cocaine which Gills
    then delivered to the CI.
    Other purchases occurred on August 31, September 13, and
    September 25, 2017, wherein the CI bought crack cocaine
    from Gills. These purchases were also arranged through tele-
    phone calls between the CI and Gills. On November 8, the
    State received court authorization for an interception of Gills’
    telephone number which the CI had been utilizing to set up
    the buys.
    A subsequent purchase occurred on November 15, 2017.
    On that date, the CI again contacted Gills’ telephone number
    to solicit crack cocaine and arrange to meet. A few minutes
    after the CI arrived at the meeting, Gills talked to Brye on his
    telephone. Gills then left the meeting location and traveled to a
    second location where previous purchases had occurred. Gills
    had a second telephone conversation with Brye, wherein Brye
    said he would meet Gills in about 5 minutes. Seven minutes
    later, Brye arrived at the second location and met with Gills.
    Brye then left, went to his residence, returned to Gills’ loca-
    tion, and then left again. About 1 minute later, Gills texted the
    CI to meet him at the second location. The CI met Gills, and
    Gills supplied the CI with the crack cocaine.
    Thereafter, the State through the Douglas County Attorney
    submitted an application and affidavit for interception of Brye’s
    telephone number to the Attorney General, who received it on
    December 20, 2017. Two days later, on December 22, the
    Attorney General issued a recommendation that the applica-
    tion be approved and the State submitted this recommendation
    and the application to the district court. On that same day, the
    State received court authorization for an interception of Brye’s
    telephone number.
    A final purchase was made on January 3, 2018. The CI
    again arranged for the buy with Gills. The CI met Gills to give
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    STATE v. BRYE
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    him money for the crack cocaine, and the CI and Gills agreed
    to meet later when Gills had the controlled substance. Gills
    then called Brye to obtain the requested drugs. At that point,
    Brye left his residence and delivered the crack cocaine to
    Gills. When Brye left Gills’ residence, he was stopped by law
    enforcement and arrested. Money which the CI had given Gills
    was later found shoved under the back of the seat of the police
    cruiser Brye was placed in after his arrest. A subsequent search
    pursuant to a warrant of Brye’s house uncovered additional
    crack cocaine as well as packaging material, a scale, and cash.
    Gills was also arrested after he provided the CI the drugs. A
    search pursuant to a warrant of Gills’ residence and business
    identified more of the money the CI provided Gills, as well as
    other cash, handguns, and additional crack cocaine in multiple
    packages. Gills confirmed that Brye supplied him with crack
    cocaine on several occasions.
    Pursuant to these events, Brye was charged with conspiracy
    to distribute crack cocaine, possession with intent to distribute
    crack cocaine, possession of a deadly weapon by a prohibited
    person, and failure to affix a drug tax stamp. Brye filed a
    motion to suppress all evidence obtained during and derived
    from the wiretap interception of communications authorized
    in the December 2017 order on the telephone number ascribed
    to him.
    In his motion, Brye claimed the State, in applying for the
    interception, failed to comply with the statutory requirement
    under § 86-291 that an application to intercept with the court
    be made simultaneously with an application notifying the
    Attorney General. Brye argued that the State violated this
    requirement by submitting the application to intercept Brye’s
    telephone number to the Attorney General 2 days before sub-
    mitting the application to the court.
    The court denied this claim, noting that Brye failed to allege
    how such an action constituted a material noncompliance with
    the statute or how the action prejudiced Brye to justify the sup-
    pression of part of or the entire interception. The court found
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    STATE v. BRYE
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    that suppression of any part of the intercepted communications
    was not warranted and determined that the 2-day delay “at
    most, if at all, is a technical violation” which “does not consti-
    tute a violation of a core statutory requirement.”
    Additionally, Brye claimed the State exceeded the permis-
    sible scope of the court order authorizing the interception
    when it intercepted communications while Brye was outside
    of Nebraska. On this claim, the parties agreed that the State,
    through its “listening post” in Douglas County, Nebraska, had
    intercepted some of Brye’s communications when he was in
    Texas. However, the State noted that it did not use any evi-
    dence from the communications in Texas in its case.
    The court also denied this claim. Specifically, the court
    determined that the interception was permissible because it was
    authorized by the order and because the listening post at which
    the State intercepted the communication was in Nebraska.
    In November 2018, the State filed an amended information
    which retained only the charge of conspiracy to distribute crack
    cocaine, and the parties agreed to a bench trial on stipulated
    facts. In January 2019, the court found Brye guilty and sen-
    tenced him to 20 to 20 years’ imprisonment.
    ASSIGNMENTS OF ERROR
    Brye assigns the district court erred in overruling his motion
    to suppress and in determining that (1) suppression was not
    warranted due to an alleged violation of § 86-291 in the State’s
    submitting the application for interception with the court 2
    days after submitting it to the Attorney General and (2) the
    interception of Brye’s communications while he was in Texas
    was not beyond the permissible scope of the court order.
    STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.1
    1
    State v. Goynes, 
    303 Neb. 129
    , 
    927 N.W.2d 346
     (2019).
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    STATE v. BRYE
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    304 Neb. 498
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protections is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.2
    [2] Statutory interpretation presents a question of law which
    an appellate court reviews independently of the lower court.3
    ANALYSIS
    Timing of Application for Interception
    Brye first argues that evidence extending from the December
    2017 interception order should have been suppressed because
    the State failed to submit the application for interception with
    the Attorney General and court simultaneously.
    Under Nebraska law, a county attorney may make applica-
    tion to any district court for an order authorizing the intercep-
    tion of wire, electronic, or oral communications.4 Among other
    justifications, a reviewing court may grant such application
    when the interception may provide or has provided evidence
    of a conspiracy to deal narcotic or other dangerous drugs.5
    While an applying county attorney is not required to obtain
    preapproval from the Attorney General to submit the applica-
    tion with a district court, Nebraska law does require the county
    attorney to submit the application to the Attorney General in
    order to obtain a nonbinding recommendation. Specifically,
    § 86-291 provides, in relevant part:
    At the same time a county attorney first makes appli-
    cation to the district court for an initial order authoriz-
    ing or approving the interception of wire, electronic,
    or oral communications, the county attorney shall sub-
    mit the application to the Attorney General or his or
    2
    Id.
    3
    See State v. Uhing, 
    301 Neb. 768
    , 
    919 N.W.2d 909
     (2018).
    4
    § 86-291.
    5
    Id.
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    her designated deputy or assistant. Within twenty-four
    hours of receipt by the office of the Attorney General of
    the application from the county attorney, the Attorney
    General or his or her designated deputy or assistant, as
    the case may be, shall state to the district court where the
    order is sought his or her recommendation as to whether
    the order should be granted. The court shall not issue the
    order until it has received the recommendation or until
    seventy-two hours after receipt of the application from
    the county attorney, whichever is sooner, unless the court
    finds exigent circumstances existing which necessitate the
    immediate issuance of the order. The court may issue the
    order and disregard the recommendation of the Attorney
    General or his or her designated deputy or assistant.
    Additionally, § 86-293(11) provides, in relevant part:
    Any aggrieved person in any trial, hearing, or proceed-
    ing in or before any court . . . of this state may move to
    suppress the contents of any intercepted wire, electronic,
    or oral communication or evidence derived therefrom
    on the grounds that the communication was unlawfully
    intercepted, the order of authorization or approval under
    which it was intercepted is insufficient on its face, or the
    interception was not made in conformity with the order of
    authorization or approval. . . . If the motion is granted, the
    contents of the intercepted wire, electronic, or oral com-
    munication or evidence derived therefrom shall be treated
    as having been obtained in violation of sections 86-271
    to 86-295.
    In the present case, the State submitted the application for
    interception to the Attorney General on December 20, 2017.
    The Attorney General recommended the application be granted,
    and the State submitted the application and recommendation to
    the district court on December 22.
    Brye contends that by seeking the Attorney General’s recom-
    mendation prior to submitting the application to the court, the
    State failed to adhere to the requirement under § 86-291 that
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    STATE v. BRYE
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    an application for interception be sent to the Attorney General
    “[a]t the same time a county attorney first makes application
    to the district court.” We disagree and find the State’s submis-
    sions of the application to the Attorney General and the court
    substantially complied with § 86-291.
    [3-5] We have previously held that no evidence should
    be suppressed because of technical irregularities not affect-
    ing the substantial rights of the accused, and we have been
    reluctant to deem provisions mandatory if something less
    than strict compliance would not interfere with a statute’s
    fundamental purpose.6 As to Nebraska’s wiretap statutes spe-
    cifically, we have held substantial but not strict compliance
    with the statutes is required.7 That is to say, the interceptions
    must be conducted in such a manner as not to violate substan-
    tive rights.8
    Relatedly, in analyzing the admissibility of wiretap evidence
    under federal law, the Eighth Circuit has considered three
    factors when determining whether an alleged deficiency is a
    substantive violation or a mere technical irregularity, including
    (1) whether the statutory procedure is a central or functional
    safeguard of the statute, (2) whether the purpose which the
    statutory procedure was designed to accomplish has been sat-
    isfied in spite of the error, and (3) whether the statutory pro-
    cedure was deliberately ignored and a tactical advantage was
    gained thereby.9
    6
    D.I. v. Gibson, 
    291 Neb. 554
    , 
    867 N.W.2d 284
     (2015); State v. Whitmore,
    White, and Henderson, 
    215 Neb. 560
    , 
    340 N.W.2d 134
     (1983) (motion to
    suppress resulting in one-judge opinion later adopted by full court in State
    v. White, 
    220 Neb. 527
    , 
    371 N.W.2d 262
     (1985)).
    7
    State v. Brennen, 
    218 Neb. 454
    , 
    356 N.W.2d 861
     (1984).
    8
    Id.
    9
    United States v. Civella, 
    533 F.2d 1395
     (8th Cir. 1976), vacated sub nom.
    United States v. Barletta et al., 
    430 U.S. 902
    , 
    97 S. Ct. 1168
    , 
    51 L. Ed. 2d 578
     (1977) (citing United States v. Chavez, 
    416 U.S. 562
    , 
    94 S. Ct. 1849
    ,
    
    40 L. Ed. 2d 380
     (1974)). See, also, U.S. v. Lomeli, 
    676 F.3d 734
     (8th Cir.
    2012).
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    Under its plain language, § 86-291 requires the following:
    submission of the interception application to the Attorney
    General and the court, the Attorney General to provide a rec-
    ommendation on the application to the court, and the court
    to make an independent determination on the application.
    Section 86-291 sets forth time constraints surrounding the
    Attorney General’s recommendation and the court’s approval
    of the application. Namely, within 24 hours of receipt by the
    Attorney General of the application from the county attorney,
    the Attorney General or his or her designated deputy or assist­
    ant, as the case may be, shall state to the district court where
    the order is sought his or her recommendation as to whether
    the order should be granted. Additionally, the court shall not
    issue the order until it has received the recommendation or
    until 72 hours after receipt of the application from the county
    attorney, whichever is sooner, unless the court finds exigent
    circumstances existing which necessitate the immediate issu-
    ance of the order.
    [6] We read the requirement in § 86-291 that the submis-
    sions of these applications to the Attorney General and the
    court occur “[a]t the same time” to necessitate that the appli-
    cation be submitted to the Attorney General in close enough
    proximity to the submission to the court that the grounds upon
    which the application is based are equally applicable and the
    Attorney General could issue its recommendation with suf-
    ficient time so the court could timely consider it in making
    its determination.
    In this case, the State’s submission of the application to
    the Attorney General on December 20, 2017, ensured that the
    requirement of seeking the Attorney General’s recommenda-
    tion before consideration by the court was met. This timing
    satisfied the purpose of § 86-291 to provide additional safe-
    guards to the interception of communications by requiring
    both the Attorney General and the court to consider the appli-
    cation prior to the court’s making its independent determina-
    tion. Accordingly, the submissions substantially complied with
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    § 86-291 and any delay between the submissions was a mere
    technical irregularity.
    In arguing the 2-day difference in the submissions of the
    application to the Attorney General and the court was more
    than a mere technical irregularity, Brye claims the timing of
    the submissions prejudiced him because there was no guar-
    antee that the applications were the same version due to this
    time difference. However, there would have been no such
    guarantee even if the applications were sent on the same date.
    The difference in the timing of the submissions does not make
    it any more or less likely that the applications were different
    versions. Outside of arguing that the difference in the timing
    of the submissions created a greater implicit risk that the appli-
    cations were different, Brye does not argue that the application
    upon which the Attorney General based its recommendation
    and the application approved by the court were impermissibly
    dissimilar. Brye also does not argue that the time difference
    affected the underlying grounds upon which the application
    was based.
    Similarly, Brye’s assertion that the court’s receipt of the
    recommendation at the same time as the application prejudiced
    him due to the risk of the court’s giving the recommendation
    greater weight is without merit. We find no reason to infer
    that a court would give additional weight to a recommenda-
    tion when it is received along with the application instead of
    on its own. Under either scenario, the court would receive the
    application and the recommendation and make its determina-
    tion on the appropriateness of the interception based upon both
    these documents.
    Considering all of the above, the district court did not err
    in determining that there was no violation of Brye’s substan-
    tive rights based upon the timing of the State’s submissions
    of the application to the Attorney General and the court. As
    a result, the district court did not err in declining to sup-
    press evidence extending from the December 2017 inter­­
    ception order.
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    Authority to Intercept Out-of-State
    Communications
    Brye also argues evidence extending from the December
    2017 interception order should have been suppressed because
    the State exceeded the permissible scope of the order in
    intercepting communications occurring outside of Nebraska.
    Brye contends § 86-293(3) limits a court’s authority to grant
    an application for interception to only those communications
    occurring within its territorial jurisdiction. Because the parties
    acknowledge the State intercepted some of Brye’s communi-
    cations while he was in Texas, Brye argues this interception
    of out-of-state communication occurred beyond the territorial
    jurisdiction of the court.
    We disagree with Brye’s interpretation of this jurisdictional
    statutory requirement. Section 86-293(3) permits a court to
    approve an “interception of wire, electronic, or oral commu-
    nications or mobile telephone communications within the ter-
    ritorial jurisdiction of the court.” “Intercept” under this section
    is defined as “the aural or other acquisition of the contents of
    any wire, electronic, or oral communication through the use of
    any electronic, mechanical, or other device.”10 “Aural transfer,”
    in turn, is defined as “a transfer containing the human voice
    at any point between and including the point of origin and the
    point of reception.”11
    [7] Explicit in the definition of aural transfer is the proposi-
    tion that aural communication occurs at the communication’s
    origin or point of reception and any point in between. As
    such, the location of any interception of those communications
    must also be measured at the communication’s origin or point
    of reception and any point along the transfer where the com-
    munication is redirected and first heard. Because the intercep-
    tion occurs both at the origin or point of reception and where
    the communication is redirected and first heard, both of these
    10
    Neb. Rev. Stat. § 86-280 (Reissue 2014).
    11
    Neb. Rev. Stat. § 86-273 (Reissue 2014).
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    locations must be considered when deciding whether intercep-
    tion is within a court’s territorial jurisdiction.
    Other courts analyzing similar statutes have held that “inter-
    ception” for the purpose of determining territorial jurisdiction
    occurs at both the location of the tapped telephone and the
    listening post location.12 For instance, in U.S. v. Henley,13 the
    Eighth Circuit found that a federal district court located in
    Missouri was authorized under the similarly worded federal
    wiretap statute to approve the interception of communications
    when the listening post was located in St. Louis, Missouri,
    even though some of the communications occurred in Illinois.
    In addition to interpreting territorial jurisdiction based upon
    statutory language, some of these outside courts have opined
    that this reading is supported by the mobile nature of cellular
    telephones and the complexity that mobility can bring in trying
    to determine the likely location of their use and in protecting
    individuals from intrusive interceptions.14
    [8] In this case, the parties acknowledge that some of Brye’s
    communications were acquired while he was in Texas but also
    agree that the State redirected and first heard these conversa-
    tions at a listening post in Nebraska. Based upon the plain
    language of § 86-293(3) and the definitions under §§ 86-273
    and 86-280 analyzed above, a court can authorize interception
    of communications within its territorial jurisdiction and this
    12
    See, U.S. v. Jackson, 
    849 F.3d 540
     (3d Cir. 2017); U.S. v. Cano-Flores,
    
    796 F.3d 83
     (D.C. Cir. 2015); U.S. v. Henley, 
    766 F.3d 893
     (8th Cir. 2014);
    U.S. v. Luong, 
    471 F.3d 1107
     (9th Cir. 2006); U.S. v. Wilson, 
    237 F.3d 827
    (7th Cir. 2001); U.S. v. Jackson, 
    207 F.3d 910
     (7th Cir. 2000), vacated on
    other grounds 
    531 U.S. 953
    , 
    121 S. Ct. 376
    , 
    148 L. Ed. 2d 290
     (2000);
    U.S. v. Denman, 
    100 F.3d 399
     (5th Cir. 1996); U.S. v. Tavarez, 
    40 F.3d 1136
     (10th Cir. 1994); U.S. v. Rodriguez, 
    968 F.2d 130
     (2d Cir. 1992);
    State v. Ates, 
    217 N.J. 253
    , 
    86 A.3d 710
     (2014); Davis v. State, 
    426 Md. 211
    , 
    43 A.3d 1044
     (2012).
    13
    Henley, supra note 12.
    14
    See, Denman, supra note 12; Rodriguez, supra note 12; Ates, supra
    note 12.
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    interception occurs both at the origin or point of reception and
    where the communication is redirected and first heard. Because
    the State redirected and first heard Brye’s communications at a
    listening post in Nebraska, the interception occurred within the
    court’s territorial jurisdiction. Accordingly, the district court
    did not err in declining to suppress evidence based on some of
    Brye’s conversations’ occurring in Texas.
    V. CONCLUSION
    The district court did not err in overruling Brye’s motion to
    suppress. The court correctly determined that the State’s sub-
    mission of the application to intercept to the Attorney General
    2 days prior to submitting it to the court did not violate the
    timing requirement of § 86-291 and that the interception of
    Brye’s communications was within the territorial jurisdiction of
    the court because the communications were redirected and first
    listened to at a Nebraska listening post.
    Affirmed.
    Heavican, C.J., not participating.