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State v. Brye

Supreme Court of Nebraska

November 15, 2019

State of Nebraska, appellee,
v.
Curtis R. Brye, Jr., appellant.

         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 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 court's determination.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the lower court.

         3. Criminal Law: Motions to Suppress. No evidence should be suppressed 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 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 jurisdiction.

         8. 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.

          Appeal from the District Court for Douglas County: Gary B. Randall, Judge.

          Stuart J. Dornan, of Dornan, Troia, Howard, Breitkreutz & Conway, PC, 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 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.

         BACKGROUND

         From 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.

         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 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 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' 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.

         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 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.

         A final 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.

         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 ...


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