State v. Brye

304 Neb. 498

935 N.W.2d 438

STATE of Nebraska, appellee,

v.Curtis R. BRYE, Jr., appellant.

No. S-19-061.

Supreme Court of Nebraska.

Filed November 15, 2019

Stuart J. Dornan, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, 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 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 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 submitting 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 suppression of part of or the entire interception. The court found 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 constitute a violation of a core statutory requirement."

Additionally, Brye claimed the State exceeded the permissible 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 evidence 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 sentenced 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

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.¹

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

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 application to any district court for an order authorizing the interception 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 application 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 application to the district court for an initial order authorizing or approving the interception of wire, electronic, or oral communications, the county attorney shall submit the application to the Attorney General or his or 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 proceeding in or before any co

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