912 F.3d 1125
8th Cir.2019Background
- Jeremy D. Terrell pled guilty to conspiracy and possession with intent to distribute methamphetamine and cocaine-related offenses; he appealed denial of his motion to suppress evidence obtained from state-authorized wiretaps.
- Nebraska county attorney sought two successive state wiretaps in 2015: first targeting two NIKE gang members (Terrell listed as a target subject), then a separate wiretap specifically on Terrell’s phones; both applications were forwarded to the Nebraska Attorney General, who recommended approval, and both orders were issued and later extended by a state court.
- Wiretap applications submitted to the Attorney General were not signed and sworn and were submitted by a deputy county attorney rather than the principal county attorney.
- Terrell learned of the interceptions during a proffer interview 86 days after the first wiretap ended and received written notice 120 days after termination; he argued suppression was required due to defects in authorization, oath, signer, lack of probable cause/necessity, and untimely notice.
- The district court denied suppression; Terrell appealed. The Eighth Circuit reviewed factual findings for clear error and legal conclusions de novo and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska AG preauthorization required for state wiretaps | Terrell: federal preauthorization requirement (18 U.S.C. § 2516(1)) applies to state wiretaps | State: federal statute requires compliance with applicable state law, which only requires the AG’s recommendation, not preauthorization | Court: No preauthorization required; Nebraska law requires recommendation only; affirmed |
| Whether applications had to be sworn to the AG and submitted by principal county attorney | Terrell: applications weren’t sworn before AG and were submitted by deputy, rendering them defective | State: oath required only before the judge; deputies are authorized to act for county attorney under Nebraska law | Court: No error — oath need not be before AG and deputies may submit to AG |
| Probable cause and staleness for listing Terrell as a target subject | Terrell: first wiretap lacked probable cause as to him and information was stale | State: probable cause existed as to co-conspirators and listing a person as target subject is permissible; ongoing activity defeats staleness | Court: Probable cause supported for co-conspirators; listing Terrell proper; information not stale |
| Necessity of wiretaps (failure to exhaust other techniques) | Terrell: law enforcement did not pursue several traditional investigative steps before wiretapping | State: statute requires showing other techniques were tried or reasonably unlikely to succeed; government need not exhaust every technique and affidavit showed attempts/reasons | Court: Necessity finding was not clearly erroneous; wiretaps were justified |
| Timeliness of notice after interception termination | Terrell: written notice was given 120 days after termination, exceeding 90-day statutory deadline | State: Terrell received actual notice (proffer interview) within 90 days, which suffices | Court: Actual notice within 90 days satisfied statute; no error |
Key Cases Cited
- United States v. Lomeli, 676 F.3d 734 (8th Cir. 2012) (standard of review for suppression appeals)
- United States v. Moore, 41 F.3d 370 (8th Cir. 1994) (state-issued wiretap orders must comply with state and federal law)
- United States v. Dunn, 723 F.3d 919 (8th Cir. 2013) (listing a person as target subject may be permissible even absent individualized probable cause; actual notice suffices)
- United States v. Jeanetta, 533 F.3d 651 (8th Cir. 2008) (staleness analysis considers continuity of criminal activity)
- United States v. Macklin, 902 F.2d 1320 (8th Cir. 1990) (continuing criminal activity reduces staleness concern)
- United States v. Maxwell, 25 F.3d 1389 (8th Cir. 1994) (necessity determination reviewed for clear error)
- United States v. Losing, 560 F.2d 906 (8th Cir. 1977) (wiretap necessity does not require exhaustion of all investigative techniques)
- United States v. Williams, 124 F.3d 411 (8th Cir. 1997) (sufficiency of showing that other investigative techniques are unlikely to succeed)