NE Code § 86-293 (2021)
2021 Nebraska Revised Statutes|Chapter 86 - Telecommunications and Technology|86-293 - Interception; procedure; appeal.

86-293.  Interception; procedure; appeal.(1) Each application for an order authorizing or approving the interception of a wire, electronic, or oral communication shall be made in writing upon oath or affirmation to a judge of a district court and shall state the applicant's authority to make such application. Each application shall include the following information:(a) The identity of the applicant;(b) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including details as to the particular offense that has been, is being, or is about to be committed, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted except as otherwise provided in subsection (13) of this section, a particular description of the type of communications sought to be intercepted, and the identity of the person, if known, committing the offense and whose communications are to be intercepted;(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application made to any judge for authorization to intercept or for approval of interceptions of wire, electronic, or oral communications involving any of the same persons, facilities, or places specified in the application and the action taken by the judge on each such application; and(f) When the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception or a reasonable explanation of the failure to obtain such results.(2) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic, or oral communications or mobile telephone communications within the territorial jurisdiction of the court if the judge determines on the basis of the facts submitted by the applicant that: (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 86-291; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and (d) except as otherwise provided in subsection (13) of this section, there is probable cause for belief that the facilities from which or the place where the wire, electronic, or oral communications are to be intercepted are being used or are about to be used in connection with the commission of such offense or are leased to, listed in the name of, or commonly used by such person.(4) Each order authorizing or approving the interception of any wire, electronic, or oral communication shall specify: (a) The identity of the person, if known, whose communications are to be intercepted; (b) except as otherwise provided in subsection (13) of this section, the nature and location of the communications facilities as to which or the place where authority to intercept is granted; (c) a particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates; (d) the identity of the agency authorized to intercept the communications and of the person authorizing the application; and (e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.(5) Each order authorizing the interception of a wire, electronic, or oral communication shall, upon request of the applicant, direct that a provider, landlord, custodian, or other person furnish to the applicant all information, facilities, and technical assistance necessary to accomplish the interception inconspicuously and with a minimum of interference with the services that such provider, landlord, custodian, or person is giving to the person whose communications are to be intercepted. Any provider, landlord, custodian, or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for expenses incurred in providing such facilities or assistance at the prevailing rates. A provider that has received an order as provided in this subsection may, under seal, move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the Attorney General or county attorney as the case may be, shall decide such a motion expeditiously.(6) No order entered under this section may authorize or approve the interception of any wire, electronic, or oral communication for any period longer than is necessary to achieve the objective of the authorization nor in any event longer than thirty days. Extensions of an order may be granted but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to avoid and prevent interception of confidential communications to or from persons of the classes described in sections 20-146 and 27-503 to 27-506 unless there exists probable cause to believe such persons have committed, are committing, or are conspiring to commit offenses specified in section 86-291, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under sections 86-271 to 86-295, and shall terminate upon attainment of the authorized objective or in any event in thirty days. Upon a showing of good cause as set forth in the application, in the event the intercepted communication is in a foreign language and an expert in that foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.(7)(a) Whenever an order authorizing interception is entered pursuant to sections 86-271 to 86-295, the order shall, at a minimum, require reports to be filed with the judge who issued the order no earlier than the twelfth day and no later than the sixteenth day after the order is issued and twelve to sixteen days thereafter showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Additional reports shall be filed at such other intervals as the judge may require. Time computed under this subdivision shall commence on the first calendar day after the order is issued.(b) If the required reports are not filed, the judge shall exclude from evidence any communication intercepted after that date otherwise authorized by the order unless the person required to file the reports establishes that the failure was for good cause.(8)(a) The contents of any wire, electronic, or oral communication intercepted by any means authorized by sections 86-271 to 86-295 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, electronic, or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his or her directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to subsections (1) and (2) of section 86-292 for investigations. The presence of the seal provided for by this subsection or a satisfactory explanation for the absence thereof shall be a prerequisite for the use or disclosure of the contents of any wire, electronic, or oral communication or evidence derived therefrom under subsection (3) of section 86-292.(b) Applications made and orders granted under sections 86-271 to 86-295 shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of a district court, shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.(c) Any violation of this subsection may be punished as contempt of the issuing or denying judge.(9)(a) Within a reasonable time, but not longer than ninety days after the termination of the period of an order or extensions thereof, the issuing judge shall cause the applicant to serve on the persons named in the order or the application and such other parties to intercepted communications which the judge may determine to be in the interest of justice an inventory which shall include: (i) The entry of the order of application; (ii) the date of such entry and the period of authorized or approved interception or the denial of the application; and (iii) whether, during such period, wire, electronic, or oral communications were or were not intercepted.(b) The judge, upon the filing of a motion by a person whose communications were intercepted, may make available to such person or his or her counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On application to a judge of a district court, the serving of the inventory required by this subsection shall be postponed for ninety days. Thereafter, on an ex parte showing of good cause to a judge of a district court, the serving of the inventory required by this subsection may be further postponed.(c) If the inventory is not served as required by this subsection, any communication intercepted under an order or extension thereof shall be excluded as evidence before all courts of this state unless the failure to serve such inventory was for good cause, the failure to serve the inventory did not substantially affect the rights of the defendant in the matter, or the serving of the inventory was postponed as allowed and ordered pursuant to subdivision (b) of this subsection.(d) Nothing in this subsection shall be construed to limit the judge's power of contempt.(10) The contents of any intercepted wire, electronic, or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a federal or state court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order and accompanying application under which the interception was authorized or approved. This ten-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with such information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.(11) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority 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. Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic, or oral communication or evidence derived therefrom shall be treated as having been obtained in violation of sections 86-271 to 86-295. The judge, upon the filing of such motion by the aggrieved person, may in his or her discretion make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.(12) In addition to any other right to appeal, the Attorney General or any county attorney shall have the right to appeal from an order granting a motion to suppress made under subsection (11) of this section or the denial of an application for an order of approval if the Attorney General or the county attorney certifies to the judge granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.(13) The requirements of subdivisions (1)(b), (3)(d), and (4)(b) of this section relating to the specification of the facilities from which or the place where the communication is to be intercepted shall not apply if:(a) In the case of an application with respect to the interception of an oral communication:(i) The application is approved by both the Attorney General and the county attorney where the application is sought or a deputy attorney general or designated deputy county attorney if the Attorney General or county attorney is outside of his or her respective jurisdiction;(ii) The application contains a full and complete statement as to why such specification is not practical and identifies the person believed to be committing the offense and whose communications are to be intercepted; and(iii) The judge finds that such specification is not practical; and(b) In the case of an application with respect to a wire or electronic communication:(i) The application is approved by both the Attorney General and the county attorney where the application is sought or a deputy attorney general or designated deputy county attorney if the Attorney General or county attorney is outside of his or her respective jurisdiction;(ii) The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and(iii) The judge finds that such purpose has been adequately shown.(14) An interception of a communication under an order with respect to which the requirements of subdivisions (1)(b), (3)(d), and (4)(b) of this section do not apply by reason of subsection (13) of this section shall not begin until the facility from which or the place where the communication is to be intercepted is ascertained by the person implementing the interception order.(15) As used in subdivisions (7)(b) and (9)(c) of this section, good cause shall include a showing that the failure to file the report or serve the inventory was not intentional and that a substantial reason or special circumstance, including an act of God, reasonable unavailability of the applicant or necessary law enforcement officer due to death, medical condition, incapacitation, inaccessibility, or location, or other substantial reason or special circumstance as the court in its discretion determines, excused the failure to file the report or serve the inventory.Source   Laws 1969, c. 854, § 5, p. 3214;   Laws 1976, LB 583, § 1;   Laws 1988, LB 899, § 5;   R.S.1943, (1999), § 86-705;  Laws 2002, LB 1105, § 155.  Annotations  1. Application for wiretap 2. Order 3. Suppression of evidence 4. Miscellaneous 1. Application for wiretap It is not necessary for the State to utilize all investigative techniques before making an application for a wiretap. It is sufficient that the State show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation. The application for a wiretap must contain a full and complete disclosure of all that has been done so that the court may make a judgment as to whether more should be required before a wiretap is authorized. An affidavit in support of an application for a wiretap is to be tested in a practical and commonsense fashion. State v. Nash, 233 Neb. 318, 444 N.W.2d 914 (1989). An application for a wiretap shall include sufficient facts which will support a believable conclusion that reasonable or ordinary investigatory techniques had been tried and had failed, or appeared unlikely to succeed, in obtaining evidence regarding a suspect's illegal activity. State v. Whitmore, 221 Neb. 450, 378 N.W.2d 150 (1985). The statement envisioned by subsection (1)(c) of this section (formerly subdivision (1)(c) of section 86-705) is a statement of fact demonstrating exhaustion or unavailability of normal or conventional investigative techniques. State v. Golter, 216 Neb. 36, 342 N.W.2d 650 (1983). This section requires a separate showing of the necessity of a wiretap as a means of investigation of the crime being committed. To demonstrate necessity, the prospective and retrospective failure of alternative investigative techniques must be apparent from the facts submitted by the applicant. This section (formerly section 86-705) applies whether the wiretap sought is the first one covering a particular criminal activity, or whether a previous tap has furnished information which is the basis for the application for another tap. The validity of the application for the wiretap authorization and for the order of the authorizing judge cannot be established by the exercise of hindsight. They must be viewed in the light of circumstances as they existed and were known or reasonably anticipated at the time, and cannot be "bootstrapped" by what the wiretap later uncovered. A showing that two or more principals are involved in one conspiracy as to one of which a sufficient affidavit has been filed is not alone sufficient to support an application as to all of the alleged principals or their telephones. In this case, affidavits are not sufficient to satisfy statutory requirement of necessity for wiretap. State v. Lane, 211 Neb. 46, 317 N.W.2d 750 (1982). Affidavits incorporated into application were sufficiently detailed to satisfy the requirements of this section (formerly section 86-705). State v. Lozano, 209 Neb. 772, 311 N.W.2d 529 (1981). Subdivision (1)(c) of this section (formerly subdivision (1)(c) of section 86-705) does not require the exhaustion of all possible or reasonable avenues of investigation. The statutory requirements are stated in the alternative, i.e., that other methods must have been tried and failed "or" that other procedures are unlikely to succeed or are too dangerous. State v. Holmes and Beardslee, 208 Neb. 114, 302 N.W.2d 382 (1981). In order to obtain a wiretap, the application and affidavit for the wiretap must set out facts sufficient to establish all four essential requirements of subsection (3) of this section (formerly subsection (3) of section 86-705). State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980). 2. Order Although interceptions of telephonic communications need not cease upon the obtaining of a described communication, unless the order authorizing them so provides, they must cease when the objective of the authorization has been achieved, and in no event may the interceptions extend beyond thirty days. State v. Brennen, 218 Neb. 454, 356 N.W.2d 861 (1984). An order not containing a provision that the authorization to intercept calls shall be conducted in such a way so as to avoid and prevent interception of confidential information is not per se invalid absent a showing that any substantial right of the defendant has been violated. State v. Brennen, 214 Neb. 734, 336 N.W.2d 79 (1983). 3. Suppression of evidence The ultimate burden of showing an unlawful interception rests upon the party against whom the fruits of the electronic surveillance are offered. State v. Nash, 233 Neb. 318, 444 N.W.2d 914 (1989). Evidence derived from prior wiretap found illegal in State v. Lane, 211 Neb. 46, 317 N.W.2d 750 (1982), was used to support application for wiretap in present case; thus, wiretap in this case also suppressed. State v. Richter, 211 Neb. 63, 317 N.W.2d 759 (1982). Evidence which is obtained as the result of a search which is based solely on a wiretap which is in violation of this act (sections 86-701 to 86-712, recodified in 2002 as sections 86-291 to 86-2,115) must be suppressed where the defendant had waived his fourth amendment rights under the U.S. Constitution, but not his statutory rights under this act. State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981). Appeals by the state from an order suppressing evidence under this section shall be pursuant to section 29-824. State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980). 4. Miscellaneous Pursuant to subsection (3) of this section, 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. State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019). An interlocutory appeal brought under section 86-705(12), R.R.S.1943, (recodified in 2002 as section 86-293(12)) shall be heard according to the procedure set out in section 29-824, R.R.S.1943. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980). This section (formerly section 86-705) is virtually identical to 18 U.S.C. section 2518. This section is intended to assure that wire tapping is not resorted to when traditional investigative techniques would suffice. However, it is not necessary to exhaust all other possible techniques before a wiretap order may issue. State v. Trader, 205 Neb. 282, 287 N.W.2d 78 (1980); State v. DiMauro & Kessler, 205 Neb. 275, 287 N.W.2d 74 (1980). In a gambling conviction based on evidence obtained by wiretap, court held that federal law preempts the field, but does not require "all possible" investigative techniques be tried before authorizing wiretap. State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977). The statute prescribes a rule of evidence applicable to civil as well as criminal proceedings. White v. Longo, 190 Neb. 703, 212 N.W.2d 84 (1973). Misdemeanor gambling is an inherently serious crime and one of those typically involving elements of organized crime. Gambling is also one of the crimes enumerated in this statute and in 18 U.S.C. section 2516. Therefore, wiretap evidence obtained in the investigation of misdemeanor gambling is admissible in a probation revocation hearing. U.S. v. Frederickson, 581 F.2d 711 (8th Cir. 1978).