Summary
The Nebraska Supreme Court affirmed Curtis R. Brye Jr.'s conviction for criminal conspiracy to distribute crack cocaine. The court held that submitting a wiretap application to the Attorney General two days before submitting it to the district court substantially complied with Nebraska's wiretap statute and constituted, at most, a technical irregularity. It also held that interception of communications made while Brye was in Texas fell within the Nebraska court's territorial jurisdiction because the communications were redirected and first heard at a Nebraska listening post.
Topics
Practice areas
Questions Presented
- Whether the State's submission of an application for interception to the Attorney General two days before submitting it to the district court violated Neb. Rev. Stat. § 86-291 and required suppression of the intercepted communications or derivative evidence.
- Whether interception of Brye's communications while he was in Texas exceeded the territorial jurisdiction authorized by the Nebraska court under Neb. Rev. Stat. § 86-293(3).
Holdings
- The State substantially complied with § 86-291 because the application was submitted to the Attorney General sufficiently close in time to its submission to the court to preserve the statutory safeguards. The two-day difference was a technical irregularity that did not violate Brye's substantive rights and did not require suppression.
- The interception was within the Nebraska court's territorial jurisdiction because interception occurs both at the communication's origin or point of reception and at the location where the communication is redirected and first heard. The Nebraska listening post therefore supplied territorial jurisdiction even though Brye was in Texas during some communications.
Key quotations
“We disagree and find the State’s submissions of the application to the Attorney General and the court substantially complied with § 86-291.” (at 505)
“We read the requirement in § 86-291 that the submissions of these applications to the Attorney General and the court occur “[a]t the same time” to necessitate that the application 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.” (at 507)
“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.” (at 510)
Factual background
An FBI task force used a confidential informant to purchase crack cocaine from David Gills, who arranged the transactions by telephone and obtained the drugs from Brye. The State obtained authorization to intercept Gills' telephone communications and later sought authorization to intercept Brye's communications; the application was submitted to the Attorney General on December 20, 2017, and to the district court on December 22. Some intercepted communications occurred while Brye was in Texas, but the State redirected and first heard them at a listening post in Douglas County, Nebraska. Brye was ultimately charged with conspiracy to distribute crack cocaine and other offenses, and evidence from the interception and related searches supported the prosecution.
Procedural history
The Douglas County District Court denied Brye's motion to suppress evidence from the December 2017 interception order. The parties agreed to a bench trial on stipulated facts, and the district court found Brye guilty of conspiracy to distribute crack cocaine and sentenced him to 20 to 20 years' imprisonment. The Nebraska Supreme Court affirmed.