*1 Larry appellant. Nebraska, appellee, Hinton, State J.
Filed November No. 87-123. Kenney, Douglas County Defender, Thomas M. Public and Cathy Bashner, K. appellant. for Spire, General,
Robert Attorney Lynne Fritz, M.
appellee. C.J.,
Hastings, Boslaugh, White, Caporale, Shanahan, JJ., D.J., Retired. Grant, Colwell, CAPORALE, J. Hinton, defendant, Larry was trial, J.
Following bench substance, cocaine, a controlled guilty possessing adjudged Rev. Stat. same, of Neb. in violation deliver the intent to *2 subsequently The district court 1985). 28-416(l)(a) (Reissue § felony II under a Class constituted that the offense determined 28-405 Neb. Rev. Stat. 28-416(2) § and provisions for imprisonment 1985), and sentenced (Reissue assigns as errors appeals and years. Hinton period of 10 to 15 obtained as suppress the evidence court’s failure the district residence attaching pen register on his (1) the result communications, (3) telephone intercepting his telephone, (2) searching vehicle, his (4) and in his searching package found Weaffirm. residence.
FACTS purchase narcotics derived from a information Based on officer, corroborating by an undercover made source, of the officers received from a confidential information 20, 1985, Division, filed a September Omaha Police county court for affidavit in the application and combined permit warrant which would County seeking a search Douglas serving telephone pen register on the of a the installation prints which register is a device pen residence. A Hinton’s installed, which it telephone line on dialed from the numbers received, does were but incoming calls and further reflects incoming requested The calls. of the reveal the sources county court on by the ordered was issued as warrant September 20, 1985, register installed on pen and a September within 10 23,1985. register warrant was returned pen This to limit the time application The did not seek of its issuance. used, warrant register might be and the pen which the within limit. imposed no such time numbers called from register telephone recorded the pen
The day installed until Hinton’s from the it was Hinton’s residence 21, 1986, 6 months. No a total of almost on March arrest register covering pen of this was warrant use amended search changed telephone home when Hinton his requested or issued 24, 1986; February register simply number on or about number. operate on the new continued to February upon part On based in information gathered register larger part upon from the and in extensive County investigation, Douglas attorney additional filed a 37-page application combined affidavit the district court Douglas County, seeking intercept permission to conversations conducted over residence reveal, according paragraph which would 62 of the aforesaid document, following illegal concerning information distribution of controlled substances: identity yet
A. The are individuals unknown who involved in these offenses the extent of their involvement.
B. of carrying The details out offenses listed below: 1. illegal The times when these transactions will occur or have occurred. illegal
2. The specific location of narcotics. identity 3. supply or sources of source illegal narcotics and the of the source(s) extent [sic] involvement. illegal
4. The manner which monies derived *3 from utilized, concealed, narcotics transactions were “laundered”, disposed. or otherwise arrangement
5. The meetings and verification of between individuals in the involved aforementioned offenses. court,
The district finding police investigative that “normal been attempted reasonably methods have and appear failed and [likely] future,” granted to fail to application succeed the the February 19,1986, on and ordered
interception Larry the wire or oral communications of of] . . . telephone over then residence [Hinton’s thirty a period days for of (30) from the date number]... physical of the actual hook-up, and shall not automatically terminate when described obtained, communications have first been but will upon objectives terminate attainment of the authorized in paragraph application outlined and affidavit. days The court reports every further ordered “interim (10) ten setting from physical hook-up, the date the actual forth the calls.” intercepted... and the nature of calls number order, pursuant to on tapped, was this telephone February 20 on monitored February Conversations 1986. 1986, revealed, among things, other that Hinton number; consequently, the change telephone his intended to application an combined county attorney filed amended repeated the This document with the district court. affidavit court, application and affidavit in that of the first assertions pending district court of the informing the added assertions number, requested change telephone in Hinton’s the new intercept carried over to conversations authorization court, finding police again that “normal The district number. attempted and failed and investigative have been methods future,” to reasonably appear [likely] to fail succeed in the sought application on granted the relief amended 24, 1986, interception February and authorized telephone days, new number for conversations over Hinton’s every ordering filing again reports interim while tap continued. pursuant monitored to these two Conversations arrange suggested using was his to orders that Hinton amounts of cocaine via a shipment of substantial package a New York address commercial carrier from area, paying shipping cash to Omaha and was for cocaine New via the same carrier. On March York monitoring the conversations overheard Hinton tell his officers suspected ship New York cocaine source that Hinton would out money quantity following day. On basis the this officers, 1986, requested on March a warrant to search a package shipment. An Hinton had delivered to carrier county money granting shipment order of the search package warrant was on March 4. The was searched issued pursuant to this warrant at the carrier’s Omaha terminal on $22,500. package 4 and was then March found contain its in New resealed and allowed continue destination *4 county money The court return York. had ordered of issuance; however, shipment days search warrant within 10 of it 1986, May than weeks was not returned until more after issuance.
Subsequently, telephone another call between Hinton and suspected New the on the York source was monitored 1986; March indicated that Hinton this conversation also source, to shipping quantity suspected would be of cash the carrier, drug the in prepayment shipment. via for a A search shipment money requested warrant for this second of was from court, county granting request the and order the an was issued money March shipment on 1986. This second search day issued, warrant executed same it was was and the package was searched at carrier’s Omaha terminal. It was $19,000. to package found contain was then resealed and allowed to continue to its in on destination New York. The county money of second shipment ordered return issuance; however, days search warrant within 10 it was 30,1986,11 May returned until weeks after issuance. 14, 1986,
On March the monitored conversation revealed suspected that Hinton’s New York source intended to personally supply days deliver Hinton a of cocaine a few later. However, police intercepted on March 17 the a telephone girlfriend conversation which Hinton’s live-in warned this suspected delay source to On trip. the basis of this surreptitious information and the results observation of Hinton, attorney, 20, 1986, county requested on March tap from district court an extension authorization to number, telephone Hinton’s new and that order extension, issue, require every should one “interim reports ten days (10) 20,1986].” from [March court, finding objectives
The district that the of the initial applications yet fully and amended were be orders met police investigative and that “normal have methods been failed, attempted reasonably appear [likely] to fail future,” granted succeed the extension on March 1986, to continue the new tap telephone number issuance, county from the date of and ordered the attorney every reports days through to file interim period.
On monitoring March officers suspected overheard a conversation between Hinton and his effect three packages shipped source had been *5 following shortly. The arrive and should carrier via the
Hinton package that a verified police the day, March used New York addresses the from one of Hinton to addressed Omaha at the carrier’s had arrived suspected source the morning, officers 9:30 approximately At terminal. him overheard Hinton’s conversations monitoring terminal, verify the arrival carrier’s Omaha call the Gallion, Hinton a known if one John inquire package, and behalf; the Hinton’s on confederate, up package the might pick acceptable. would be Hinton this assured officials carrier’s the Federal thereafter, agents of police and Shortly the Hinton’s and Gallion leave Investigation saw Bureau of automobile, drive to the Gallion’s enter apartment, the Gallion enter then observed The officers terminal. carrier’s in the automobile. remained while Hinton terminal carrier’s later, carrying 2 minutes to 3 to the automobile Gallion returned by 3 12inches measuring 18inches approximately package they Although had drove off. and Gallion then inches. Hinton agents followed and warrant, and FBI police arrest no under arrest. and Gallion placed both Hinton through open “reached in... police officer At this time a from between the front package door and took driver’s Police to the Omaha package carried the The officer seats.” Station, possession in his until a keeping it Central Division warrant and and affidavit for a search application combined executed, issued, all of which prepared, warrant were county court day Hinton’s arrest. The during the occurred warrant package search return of this automobile ordered issuance; was instead returned the warrant within 10 of its May nearly 10 weeks after county on package contained indicated that Field tests issuance. laboratory analysis Subsequent substances. narcotic pounds package contained 2V4 determined 99-percent-pure cocaine. filed a combined day of Hinton’s arrest the also
On county court for a warrant application and affidavit with document recited information Hinton’s residence. This search register, wiretaps, of the two gleaned from the searches York, the money shipped to New Hinton had packages Hinton, surreptitious observation of and confidential informants, tending support all stated belief that affiant’s conducted, if a no-knock search of residence was illegal drug evidence transactions would be found. This granted by county sought, application day was court on the day. and the warrant issued and executed was same search pursuant conducted residence search warrant produced drug dozen paraphernalia several items of powder suspected contaminated with white to have residue *6 been laboratory cocaine. The results of the tests conducted on county the by residue are not reflected the The record. days
ordered return of this residence search warrant within 10 issuance; however, fashion, of typically slipshod its 29, 1986, May warrant was not 10 returned until almost weeks after its issuance. 26, 1986, court, finding
On March the district the objectives of wiretaps the had met and that been the had stopped intercepting telephone p.m. conversations as of on 9:54 21, 1986, existing wiretap March ordered the Five terminated. later, 20,1986, county August attorney officially months the by notified Hinton placement taps. letter of the The letter August postmarked August was dated 20 and 22.
The prosecution failed to reports submit interim intercepted telephone every days, conversations as had been by court; ordered the district in one report instance an interim apparently late, was submitted several a final interim report covering period March through the last intercepted call on March 21 was never filed. The record does reports; contain February three interim one dated (covering period February through 1986), one dated 7,1986 February March (covering period 24 through March 1986), and period one dated March (covering through March 6 16,1986), respectively.
ANALYSIS Intercepted Communications Statutes analysis begin We our applied law to Hinton’s assignments by reviewing provisions error the relevant statutes, intercepted Nebraska’s communications Rev. Neb. through (Reissue Stat. 86-701 86-712 1981 & Cum. Supp. §§ to, among other it unlawful general, make 1986). In statutes through attempt intercept, to deliberately intercept or things, “electronic, any means, through use of any including device,” wire oral mechanical, any or or other communications, interceptor previously has unless party interception or is permitting a court order obtained communication, to the parties or one to the interception. to previously has consented communication apply permits prosecutors (Reissue 1981). act 86-702 § authority intercept wire or oral the district courts for “may provide or has interception when such communications “dealing of, things, provided among other evidence” 1981). drugs.” (Reissue 86-703 dangerous or narcotic other electronic, 86-701(4) Supp. 1986) defines (Cum. Section mechanical, as: or other device intercept
any or which can be used to apparatus device (a) any telephone wire communication other than or oral instrument, facility, any or telegraph equipment, or or thereof, or user component (i) furnished the subscriber by ordinary in the communications common carrier being by its used the subscriber or course of business business; ordinary (ii) being its user in the course of or common carrier in the used a communications business, investigative ordinary its an or course of *7 ordinary the course of his or law enforcement officer in duties; hearing being or similar device (b) her or a aid used hearing to correct subnormal to not better than normal. are: Other relevant definitions found 86-701 § (1) any Wire mean communication shall part through communication made in whole or in the use of facilities for the of communications transmission wire, cable, or like aid of other connection between origin point reception of point of and furnished or operated by any engaged carrier in person as a common providing operating for the transmission such facilities communications; of any
(2) Oral communication shall mean oral exhibiting person a communication uttered an subject expectation is not that such communication [795] interception justifying under circumstances such expectation;
(3) Intercept acquisition shall mean aural through any contents of wire or oral communication electronic, mechanical, any use of or other device. virtually
These definitions are
identical to those found in title
1968,
III of Omnibus Crime Control
Safe Streets
of
Act
seq.
18 U.S.C.
2510 et
While
(1982).
this court has not
§§
specifically,
treated these definition sections
it has observed that
(Reissue 1981), dealing
requisites
86-705
with the
§
obtaining authority
intercept
wire or oral communications
authority,
and with
granting
contents
orders
such
and 18
“ ‘are,
ways
U.S.C.
2518
wording,
all substantive
and in
”
virtually
Kessler,
. .’
identical. .
State v. DiMauro and
205
74,
Kolosseus,
Neb.
287 N.W.2d
(1980);
76
State v.
404,
198 Neb.
(1977). Consequently,
Kessler, Kolosseus, supra; State v. supra.
Pen Register Recognizing Supreme U.S. Court has concluded search required prior that a warrant is not to installation of a register, Co., pen States Telephone United v. New York 434 159, 364, U.S. 98 S. Ct. 54 L. 376 (1977), Ed. 2d and Smith v. Maryland, 442 U.S. S. 2d 99 Ct. 61 L. Ed.
(1979), Hinton
us that the
tells
use
a
“[warrantless
register
People
violates State Constitutions” and refers us to
Sporleder,
(Colo.
Beauford,
1983),
P.2d
Com. v.
Super.
(1984).
Appellant
327 Pa.
N.W.2d 239 This court will not hunt language might arguably in an effort to find which constitution support challenger’s position, develop conceive and arguments specific which and identified constitutional
796 validity may suggest, judgment in and then sit
provisions arguments. of those validity with the
Accordingly, we not concern ourselves do warrant, warrant have such a pen register search should required. been
Interceptions
error,
brings
assignment of
which
This
to the second
then
us
telephone
intercepted
conversations
claims that evidence of
probable
State
suppressed
been
because the
lacked
should have
other
telephone, had not exhausted
tap
cause
Hinton’s
to
timely
reports,
make
interim
investigative procedures, failed to
inventory
interceptions.
timely
provide
and failed to
a
Probable Cause
permitting
interception of
application
An
an order
telephone
purpose
similar to that served
conversations serves
warrant,
is,
present
by an
that
application for
search
judicial
sufficient to enable a detached and neutral
information
order
cause exists
issue an
probable
officer to find
Garcia,
1986),
Cir.
(8th
F.2d 214
warrant. United States v.
785
Ed. 2d 342.
106
90 L.
cert. denied 475
S. Ct.
U.S.
U.S.C.
under 18
wiretap
test for issuance of a
warrant
2518 whether the sworn information before the
is of
is
reliability
justify
judicial
apparent
a neutral
officer
sufficient
that an offense
finding
probable
that there is
cause
believe
Abramson,
being
committed. United States v.
has been or
(8th
1977),
In the the affidavit first recitation, 30-page application contained a factual through investigation employed which derived 6-month informants, of Hinton and his confidential surveillance residence, buys of narcotic substances undercover controlled officers, register, and the use of the examination of bills, strongly all of which indicated that significant supplier to Omaha area. Hinton was a of cocaine opinion, document in this reproducing Without apparent sufficiently was detailed and of sufficient affidavit *9 reliability finding judge a neutral that there was warrant probable to believe that an offense both had been and was cause being committed. Investigative
Other Procedures 86-705(1) provides part: application shall Section “Each following complete the . full (c) include information: . . A investigative other procedures statement as to whether or not why they reasonably been appear have tried and failed or to be unlikely if be dangerous.” to succeed tried or to too argues:
It is clear from the evidence at introduced suppression hearing August investigatory procedures employed by the Police Omaha Department Douglas County Department Sheriff’s and, therefore, had wiretap succeeded order was not they needed. The State’s witnesses testified that had grounds issuing sufficient for a search warrant for the apartment Larry prior February of J. Hinton .. . to [the] 19, 1986, wiretap being order issued. other Since investigatory procedures were successful the State has comply failed to with Neb. Rev. Stat. 86-705(C) (Reissue 1981).
Brief for Appellant argument at 12. Hinton’s assumes that his objective investigation arrest was the sole of of which these wiretap part. However, were paragraph warrants of 62 applications indicates, wiretaps clearly State’s for such was not case. appears police identity While it knew the one of of sources, police learn, Hinton’s wanted to among also other things, sources, there whether were other of extent others, used, involvement and the manner in which Hinton concealed, “laundered,” moneys disposed or otherwise produced by illegal narcotics transactions which he was thought engaged. to be suggest
The record does that the knew the answers questions, to those additional all legitimate of which were investigation, of aspects at the time Indeed, applications. that these facts had not been determined increasingly investigation after 6 months intensive strongly supports Hinton’s affairs the conclusion that 798 was an conversations
intercepting may investigators not use Although step to take. appropriate in a narcotics step the first eavesdropping devices as wiretaps or only as a last devices be used neither must such investigation, request resort; supporting a must an affidavit nor away possible eavesdrop explain all wiretap and permission Whitmore, 221 investigation. techniques State v. alternative Golter, Neb. 216 (1985); State Neb. 378 N.W.2d Beardslee, (1983); State v. Holmes N.W.2d 650 Garcia, 785 United States v. (1981); 302 N.W.2d Neb. Ct. 106 S. U.S. 1986), cert. denied 475 (8th Cir. F.2d 1797, 90L. Ed. 2d 342. Reports
Untimely Interim *10 86-705(7)provides: Section entered authorizing interception is
Whenever an order
86-707,
may
the order
86-701 to
pursuant
to sections
judge
made
who issued
require reports to be
been made toward
showing
progress has
order
what
objective and the need for
of the authorized
achievement
made at such
interception.
reports
Such
shall be
continued
may
judge
require.
intervals as the
record,
State,
by
chose to
disclosed
The
for reasons not
intervals,
10-day
advising
reports
it file
at
ignore the orders that
number and nature of the calls
court of the
the district
earlier,
report
no
was filed for the last
intercepted. As noted
existed,
remaining 26
reports
for the
days
wiretap
Nonetheless,
the record reveal nor
neither does
days were late.
by the
actually prejudiced
he
State’s
Hinton claim that was
does
reporting requirements of the
strictly comply with the
failure to
rule
jurisdiction
committed to the
wiretap orders. This
is
strict,
substantial,
governing
compliance with
statutes
is,
required;
interception
telephonic communications
of
as not to
be conducted in such a manner
interceptions must
Brennen,
rights.
v.
218 Neb.
State
party’s
violate a
substantive
Wolk,
States v.
466 F.2d
(1984);
United
356 N.W.2d
Moreover,
Kohout,
1972).
as observed State
(8th Cir.
interim
(1977),
requiring
since
Untimely Inventory with the compliance The that substantial and not strict fact of Hinton’s required disposes as well relevant statutes is not, days after the termination complaint that he was within 90 inventory by 86-705(9), provided an of required order as § order, interception, and the fact that periods the authorized earlier, for reasons intercepted. conversations were As noted record, by comply was made to not disclosed no effort interceptions stopped. were this order until 5 months after the reflect, however, that an information was The record does arrest; 2, 1986, his against April filed Hinton on after arraigned guilty April on plea that he was and entered a of not on which date the court ordered mutual and discovery reciprocal pursuant to Neb. Rev. Stat. 29-1912 § July Hinton filed (Reissue 1985); and that pointed suppress numerous detailed motions to evidence. As General, Attorney obviously had actual out existence, substance, wiretaps notice of the as well as the 90-day statutory period expired. Under the before the notice prejudice circumstances Hinton suffered no the State’s strictly complied requirements failure to have with the 86-705(9).
Searches error, remaining assignments two the failure to suppress the evidence result obtained searches *11 warrants, package incident to the automobile and residence are they together. so interwoven that are discussed although It must be noted at the that these last two outset only assignments package of error address the automobile warrants, argument goes residence as well to the 14,1986. money shipment warrants ofMarch4and argues probable Hinton first that there was no cause to issue However, any argument is resolved of those warrants. adversely dispositions our earlier of his first two to Hinton error; assignments of once it is determined that there was no register infirmity wiretaps, in the use of the there was probable in more than sufficient cause to issue the warrants question. pursuant next contends that the evidence seized to all suppressed they
four of the warrants should be because were Again, not returned within 10 respective after their dates. however, showing we have said that in the absence of a clear prejudice, comply strictly postservice the failure to statutory requirements will not invalidate search conducted pursuant and, further, to an otherwise valid warrant that a returning failure in the filing ministerial act of a search McCown, warrant does not void the warrant. State v. Neb. 495, 203 (1973). N.W.2d 445
DECISION being error, There assignments no merit to Hinton’s judgment of the district court is affirmed.
CAVEAT application principle this case of the that in the prejudice absence of demonstrated to a criminal defendant’s rights, substantive compliance substantial with certain provisions intercepted communications statutes will suffice should not be read as a condonation this court of the prosecutor’s apparent indifference to the letter of the law. carefully While limited and eavesdropping by controlled government regrettably necessary stage history, at this in our practice particularly is nonetheless a rebarbative intrusion privacy into the society of a members free are entitled to expect. It be interceptions must remembered that suspected criminal conversations result as well in at least some interception minimal Thus, of innocent simple conversations. professional pride should scrupulous dictate observance of the steps designed protect privacy of the citizens of this sovereign Additionally, state. it is inevitable repeated efforts, prosecutory lackadaisical whether related to intercepted communications, warrants, return or other aspects investigations, of criminal will in some future case prejudice rights a defendant’s thereby substantive succeed destroying an otherwise valid conviction.
Affirmed. *12 801 Shanahan, J., dissenting. reason, good and,
With there is detectable uneasiness perhaps, apocalyptic apprehension majority’s in opinion. Brennen, 454, 356 Since State v. 218 Neb. (1984), N.W.2d 861 in adopted which this court the doctrine of “substantial compliance” to wiretap despite police departure validate a from requirements specified statutes, wiretap in the State has prevailed every in appeal to this court on the issue of noncompliance statutory requirements for a batting average 1.000, which would be an —a outstanding feat in major leagues hardly but commendable indication of protecting obedience to laws privacy of Nebraska citizens.
INDEPENDENT DETERMINATION
majority
has
question
pen
circumvented the
whether a
register, in
warrant,
the absence of authorization
a valid
protection
violates a citizen’s
available under the Nebraska
Constitution. While a court should not be asked to “hunt
through a
language
constitution in an effort
find
which
”
might arguably support
challenger’sposition,
location of the
particular
provision applicable
constitutional
in this case does
require
some
through
tiresome trek
the Nebraska
Constitution,
I,
(a person’s
from article
rights
inalienable
§
government
and a
from
governed),
the consent of the
to article
XVII,
(Nebraska
deposited
Constitution enrolled and
§
Secretary
office).
of State’s
The federal cases mentioned
majority, namely,
Co.,
United States
Telephone
v. New York
364,
434 U.S.
98 S. Ct.
54 L. Ed. 2d
(1977),
and Smith
Maryland,
v.
442 U.S.
99 S. Ct.
case is found at Neb. art. 7: “The houses, persons, papers, against to be secure in their and effects *13 violated; unreasonable searches and seizures shall not be and no ..,” upon probable warrant shall issue but cause . which the is protection exact constitutional examined in the above-indicated cases, Therefore, federal and state. result Hinton’s Const, unquestionable I, 7, reference to Neb. art. this court register should have resolved the pen issue about the which produced information effective in Hinton’s conviction. question, may impose higher
Without
a state
standards
governing police
law,
practices
may
on the basis of state
guard
rights, including
individual
right
to be free from
seizures,
unreasonable
fervently
searches and
more
than the
Supreme
U.S.
Court does under the federal Constitution. Mills
Rogers,
291, 102
2442, 73
v.
457 U.S.
S. Ct.
L. Ed. 2d
(1982);
Oregon Hass,
714,
1215,
420 U.S.
95 S. Ct.
PEN REGISTER In United States v. Caplan, Supp. 255 F. (E.D. Mich. 1966), pen register was characterized or described as given usually line at a telephone to a a device attached A of the dial on the line telephone pulsation central office. paper pen register which is attached records on a dialed. The tape equal dashes in number to the number permanent complete paper tape then becomes a outgoing particular on the line. record of numbers called calls, incoming pen register records With reference to only ring a dash for each but does not identify incoming the number from which the call originated. pen register after the number is cuts off outgoing ringing is concluded dialed on calls and after the determining incoming calls without whether the call is completed or the receiver is answered. There is neither recording monitoring nor of the conversation. Maryland,
In Smith v. 442 U.S. S. Ct. 61 L. (1979), Supreme Ed. 2d 220 a divided U.S. Court held that a register by telephone company does not constitute a search, and the customer or subscriber assumed risk of *14 eliminating expectation company’s police, disclosure to necessary privacy protection. for fourth amendment Criticizing majority Maryland, opinion in Smith v. supra, following LaFave makes the observation: Smith, may any police
Under without cause they purpose whatsoever and for whatever choose impunity merely private relationships uncover might under some telephone company because the purposes circumstances for make a record certain limited Indeed, relationships company’s of such for the own use. telephone enough majority it is for the in Smith that the company capacity to make a record of such has good relationships, though company has had the even by making keeping sense not to offend its subscribers or those records for no reason. say
. . . that the makes no sense [I]t occupant) is or hotel (any subscriber more than the tenant merely scrutiny because game police fair for unrestrained limited privacy for a degree he has surrendered some of his doing business. As purpose to whom he is those with 804 it, ordinary
Professor Amsterdam put fact that our “[t]he intercourse, social by government, imposes uncontrolled upon hardly certain government risks us means that constitutionally adding unconstrained in to those risks.” [Amsterdam, Perspectives Amendment, on the Fourth 58 349, 406 Minn. (1974).] L. Rev. LaFave,
1 W. 2.7(b) Search and Seizure (2d at 507-08 ed. 1987).
In Beauford, 783, Com. v. Super. Pa. 475 A.2d Pennsylvania (1984), Superior Court commented: any could, If law enforcement officer with or without probable cause or even suspicion, reasonable use a register on authority every his own to record number by any dialed citizen Pennsylvania residential, from a business, government phone, pen register clearly could powerful become a weapon threatening invasion only privacy, individual’s intimate but also his political liberty, including associate, rights his express views, his and even to think in freedom. courts,
Several state construing respective their state constitutions, have concluded that right a citizen ahas to be free from unreasonable search and seizure in the form police pen register, installation or use of a obtained without a warrant probable cause, issued on to record telephone numbers dialed privacy. See, Beauford, Com. v. supra; People Sporleder, v. 666 P.2d (Colo. Blair, 1983);People v. 25 Cal. 3d P.2d Rptr. Hunt, 159Cal. 818 (1979); State 91 N. J. 450 A.2d (1982) (applied billing to toll records). In view of the vital role of telephonic private communication in the lives of citizens, Nebraska this court should have considered the question constitutional about pen register use of a obtain information beyond otherwise the control police, required should have a warrant probable issued on cause as *15 a condition precedent acquisition of such register information.
WIRETAP
The notion that the
imposed by
standards
may
state law
be
more restrictive
standards,
than
may
federal
exceed federal
constitutional
mínimums,
mandates or
applies
also
requirements
See,
wiretap
for a
authorized under state law.
Golter,
Carr,
State v.
216 Neb.
(1983);
The case now before court further illustrates how the compliance” encouraged, “substantial doctrine has and will encourage, continue to police noncompliance wiretap statutes and by court orders for electronic surveillance law personnel. case, police routinely enforcement In Hinton’s filed tardy or, interim reports yet, all, worse filed none at notwithstanding the court order reports every for interim days after wiretap; installation of the persisted in the sloppy practice warrants; of late returns on search and filed the statutorily required inventory wiretap some months after the 90-day period specified by statute. See Neb. Rev. Stat. 86-705(9)(Reissue 1981). § majority that, of this court feels inasmuch as interim
progress reports wiretap required on a are by wiretap statute, progress reports, failure to file by ordered the court which wiretap, may authorized the be excused as a form of discretionary afterthought part on the authorizing of the court. Although 86-705(7) provides may that a require progress reports, that statute also mandatory contains a directive: reports “Such shall be made at such intervals as the judge may require.” (Emphasis supplied.) If a court decides progress reports necessary are judicially determine whether wiretap’s objective achieved, has thereby been minimizing the wiretap, intrusive nature of a and then orders progress reports such police, from the progress rendition of reports mandatory. progress is Interim reports, when ordered court, by a and wiretap inventory by were intended Legislature to be parts substantial wiretap the Nebraska law. statutes, wiretap In the legislated requirements for a valid wiretap, nothing indicates a formula or factors which one statutory component significance greater accorded and value any part statutory than other scheme wiretaps. On may what basis and what pick method a court and choose among parts several scheme to evaluate and part characterize one as more or less substantial than another *16 and, compliance” remains consequently, arrive at “substantial 562, Chavez, 416 U.S. 94 S. unexplained. See United States v. J., 1849, dissenting in (1974) (Douglas, 2d 380 Ct. 40 L. Ed. part). majority presence believes that or absence
While this court’s
evaluating
in
prejudice to Hinton is
consideration
of actual
progress reports,
paramount
police failure to file interim
monitoring
in
judicial
police
in
conduct
consideration is the
role
Golter, supra: “The
wiretap.
expressed
As we
in State v.
stringent judicial monitoring
wiretap
bedrock of our
law is
agencies seeking
using
electronic
law enforcement
to use
investigative technique highly
upon
surveillance—an
intrusive
citizenry.”
privacy
White, J., joins in this dissent.
Anthony Christy Grindle, appellee, Grindle, R.
appellant.
Margene appellant. for Case, Slattery Slattery, P.C., E. Michael Reinsch & appellee. C.J.,
Hastings, White, Boslaugh, Caporale, Shanahan, JJ., J., Grant, Colwell, and D. Retired.
Per Curiam. appeal This an from a marriage decree dissolution of County, entered the district court for Otoe Nebraska. The legal custody district court retained children of two parties placed physical custody of the children with the assigns appeals husband. The wife as error the district