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 historical 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 independently of the trial
Statutes: Appeal and Error. Statutory
interpretation presents a question of law which an appellate
court reviews independently of the lower court.
Criminal Law: Motions to Suppress. No
evidence should be suppressed because of technical
irregularities not affecting the substantial rights of the
Intercepted Communications. Substantial but
not strict compliance with the Nebraska wiretap statutes is
Interception must be conducted in such a manner as not to
violate substantive rights.
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.
Intercepted Communications: Judgments.
Because interception under the Nebraska wiretap statutes
occurs both at the origin or point of reception and where the
communication is redirected and first heard, both of [304
Neb. 499] these locations must be considered when deciding
whether interception is within a court's territorial
Intercepted Communications: Words and
Phrases. A court can authorize 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.
from the District Court for Douglas County: Gary B. Randall,
J. Dornan, of Dornan, Troia, Howard, Breitkreutz &
Conway, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg,
R. Brye, Jr., appeals his conviction of criminal conspiracy
to distribute crack cocaine. In doing so, Brye challenges the
district court's failure to suppress evidence obtained
during and derived from an electronic interception of his
cellular 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.
April 2017 to January 2018, an FBI task force conducted 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 [304 Neb. 500]
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.
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 telephone 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
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' location, 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.
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 application
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.
purchase was made on January 3, 2018. The CI again arranged
for the buy with Gills. The CI met Gills to give [304 Neb.
501] 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.
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.
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