State v. Brye, 935 N.W.2d 438

FBI task force used a confidential informant to make multiple controlled buys of crack cocaine from David Gills; surveillance linked Curtis R. Brye to supplying Gills.
The State sought authorization to intercept communications tied to Brye’s phone; the county attorney submitted the application to the Attorney General on Dec. 20, 2017; the AG recommended approval on Dec. 22 and the district court authorized the interception that same day.
Some intercepted calls occurred while Brye was physically in Texas; the recordings were redirected to and first heard at a Nebraska listening post; the State says it did not use Texas-based recordings at trial.
Brye was arrested Jan. 3, 2018 after delivering drugs; searches yielded drugs, paraphernalia, cash, and evidence tying him to multiple sales; he was charged with several offenses and moved to suppress evidence obtained via the wiretap.
District court denied suppression, ruling the 2-day gap between AG and court submissions was at most a technical violation and that interception heard at the Nebraska listening post was within the court’s territorial jurisdiction; Brye was later convicted of conspiracy on stipulated facts and appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brye)	Held
Whether the State violated §86-291 by submitting the interception application to the Attorney General 2 days before submitting it to the court	Submission to the AG before court still satisfied §86-291; AG recommendation was obtained and court independently reviewed application	The statute requires applications be made to the AG and the court "at the same time"; the 2-day delay violated the statute and prejudiced Brye, warranting suppression	Substantial compliance; 2-day gap was a mere technical irregularity that did not prejudice Brye; suppression not warranted
Whether interception of communications while Brye was in Texas exceeded the court's territorial authority under §86-293(3)	Interception occurs where communications are redirected and first heard; because the listening post in Nebraska first received the redirected calls, interception was within Nebraska jurisdiction	Some communications took place outside Nebraska (Texas), so the court lacked authority to authorize interception of out-of-state communications	Court may authorize interception within its territorial jurisdiction measured at both the tapped phone and at the listening post; because recordings were first heard in Nebraska, jurisdiction was proper and suppression not warranted

State v. Goynes, 303 Neb. 129 (2019) (two-part standard of review for suppression rulings)
D.I. v. Gibson, 291 Neb. 554 (2015) (technical irregularities should not trigger suppression when substantial rights unaffected)
State v. Brennen, 218 Neb. 454 (1984) (wiretap statutes require substantial but not strict compliance)
U.S. v. Henley, 766 F.3d 893 (8th Cir. 2014) (listening post location can supply territorial basis for interception)
U.S. v. Jackson, 849 F.3d 540 (3d Cir. 2017) (interception jurisdiction measured at tapped device and listening post)