Opinion
No. 44096.
Filed March 26, 1982.
1. Wiretaps: Affidavits. Affidavits in support of an application for a wiretap order must contain 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. Neb. Rev. Stat. § 86-705(1)(c) (Reissue 1976). 2. Wiretaps. While neither specific nor all possible investigative techniques must be tried before orders for wiretaps can be issued, nor is the government required to use a wiretap only as a last resort, nevertheless, wiretap procedures cannot be routinely employed as an initial step in criminal investigation. 3. ___. This is true 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. 4. ___. A showing must be made that the requested wiretap is not being routinely employed as an initial step in criminal investigation. 5. Wiretaps: Affidavits: Conspiracy. 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. 6. Wiretaps: Affidavits. The showing made in support of an application for a wiretap order must be reviewed in a practical and commonsense fashion. 7. Wiretaps. The validity of an application for a wiretap order, and the order, cannot be established by the exercise of hindsight. Such an application and the order 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.
Appeal from the District Court for Kimball County: ROBERT O. HIPPE, Judge. Reversed and remanded.
Winner, Nichols, Meister, Douglas Kelly, for appellant.
Paul L. Douglas, Attorney General, and Patrick T. O'Brien, for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant, Joy Lane, was convicted of distributing cocaine and conspiracy to solicit the sale or distribution of cocaine. She appeals from concurrent sentences to imprisonment for 3 to 5 years on each count.
This case is a companion case to State v. Lozano, 209 Neb. 772, 311 N.W.2d 529 (1981). Both this case and State v. Richter, post p. 63, 317 N.W.2d 759 (1982), decided today, arose out of an investigation conducted in Scotts Bluff County, Nebraska, in December 1979 and January and February 1980.
On January 29, 1980, the State obtained authority to place a wiretap on the telephone of Delma Lozano. As a result of conversations intercepted through that wiretap, information was obtained which indicated the defendant Lane was involved in the distribution of controlled substances. On February 10, 1980, the State obtained authority to place wiretaps on the residence telephone of the defendant and her husband and on the telephone of the "Auction House" which was owned and operated by the defendant and her husband. Conversations intercepted and recorded as a result of these wiretaps were received in evidence at the trial as a part of the evidence against the defendant.
Motions filed by the defendant to suppress the evidence derived from the February 10, 1980, wiretaps were overruled. Although the defendant has assigned numerous errors, the principal issue upon the appeal is whether the evidence obtained through the wiretaps should have been suppressed.
The application for the wiretaps on the Lane telephones was supported by an affidavit of Robert B. Kinsey, a detective in the Scottsbluff Police Department, dated February 10, 1980; an affidavit of J. G. Robinson, an investigator for the Nebraska State Patrol, dated January 29, 1980; the affidavit of James R. Livingston, chief of police of Scottsbluff, Nebraska, dated January 29, 1980; an affidavit of Robert B. Kinsey, dated January 29, 1980; and an affidavit of Nadine Hopper, dated January 21, 1980. The affidavits dated January 29 and January 21, 1980, were the basis for the original January 29, 1980, wiretap order. The defendant Lane's name was not mentioned in any of these latter affidavits.
The defendant attacks the affidavits on the ground that they did not contain "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," as required by Neb. Rev. Stat. § 86-705(1)(c) (Reissue 1976). Subsection (1)(c) 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. United States v. Atkins, 618 F.2d 366 (5th Cir. 1980). The issue is whether the February 10, 1980, application for authority to tap the Lane telephones, supported by the accompanying affidavits, adequately demonstrated the necessity of using a tap on the Lane telephones to investigate her involvement in drug distribution.
The Kinsey affidavit dated February 10, 1980, summarizes numerous intercepted conversations to which the defendant was a party, or in which others who referred to the defendant were parties, and analyzes these conversations, coming to the conclusion that the conversations contained "drug jargon." The affidavit does not set out any information from which the court could find that alternative investigative techniques would be unlikely to succeed if tried with respect to the defendant Lane.
The affidavit of State Patrol Investigator Robinson concerned itself mainly with a showing of probable cause as to the four original suspects at whom the January 29, 1980, application was directed. On the issue of necessity, Robinson's affidavit stated only that, based on his 6 years' experience as a State Patrol drug investigator, "it has been [my] experience that drug dealers regularly use the telephone in the normal course of their illegal dealings." No mention of the defendant Lane was made in Robinson's affidavit.
The affidavit of Scottsbluff Police Chief Livingston first noted that "during the past twelve years, conventional and traditional law enforcement tactics and techniques directed against violations of Nebraska statutes and city ordinances allegedly occurring in a small section of Scottsbluff commonly known as East Ninth Street have been unsuccessful." Livingston's affidavit then detailed the nature of these violations, which included drug sales and possession, and stated that this information had been gleaned from "reliable and confidential sources of information," including not only paid police informers but neighbors and other noncriminal citizens, and also from surveillance. Livingston also noted: "Officers . . . are handicapped in conducting investigations due to instant recognition of personnel and equipment by the residents in the East Ninth Street area." Finally, he stated "that a variety of investigative techniques have been used and exhausted in an effort to penetrate the groups. It has been revealed, according to affiant, that for the most part, victims of the crimes of drug sales, prostitution and gambling and occasionally robbery by prostitutes are generally reluctant to report these activities and when information is received which is of value, the sources demand that they remain anonymous . . . . [M]any covert and undercover operations have been attempted in order to gather evidence sufficient for prosecution and conviction of the individuals involved. Of the many operations attempted, only a few have been successful because of the tremendous amount of suspicion generated towards individuals not known to the permanent residents who are engaged in the illegal activities."
The Kinsey affidavit of January 29, 1980, detailed the history of the investigation of the "East 9th Street" area of Scottsbluff, with a description of other investigative tactics and techniques in the 9th Street area, including surveillance and attempts to infiltrate the criminal group working out of that area. Kinsey noted that detectives from Wyoming attempted "to infiltrate the criminal activities that are believed to occur at Bruces Tavern [in] Scottsbluff. The two Detectives were unsuccessful because it appeared that the people at Bruces Tavern `made' them as police officers." Kinsey further stated that successful infiltration of this group "appears unlikely . . . because these people are not generally known to be involved in drug transactions with people that are not specifically known to them. The suspects are Black or Hispanic and there are presently no Mexican-American or Black officers available as undercover officers in the State of Nebraska for use by the Scottsbluff Police Department."
Kinsey also noted the reluctance of victims of crimes perpetrated in this area to discuss them with police "because they would be making admissions that they took part in illegal activities." Finally, Kinsey stated: "The relationships between Dorothy Jones, Yvonne Sabala, Delma Lozano and Bruce Matlock Jr. spans many years and generations. It is unlikely that an undercover agent could ever be introduced into this group, because of these close and long relationships. It is your affiants opinion that one would most likely have to be a member of one of the families involved or a prostitute working for them in order to be accepted into the group." Defendant Lane's name was not mentioned anywhere in these four affidavits.
The Nadine Hopper affidavit detailed various criminal transactions involving the four suspects which the January 29, 1980, affidavit related to, but contained no information relating to the defendant in this case.
We have stated: "While . . . neither specific nor all possible investigative techniques must be tried before orders for wiretaps can be issued nor is the government required to use a wiretap only as a last resort; nevertheless, the wiretap procedures cannot be routinely employed as an initial step in criminal investigation." State v. DiMauro and Kessler, 205 Neb. 275, 282, 287 N.W.2d 74, 77-78 (1980). This is true 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. In the DiMauro case, Omaha police first sought and obtained an order to tap the telephone of Rose Trader. We held that the application and showing upon which the order to tap the Trader telephone was based demonstrated the necessity of a wiretap sufficiently. State v. Trader, 205 Neb. 282, 287 N.W.2d 78 (1980). The tap on Trader's phone led officials to DiMauro, and they immediately sought a tap on DiMauro's phone, without considering further investigative procedures against DiMauro. "[T]he State's witness conceded that no other investigative procedure was attempted and all the police sought to do was obtain the wiretap." State v. DiMauro and Kessler, supra at 277, 287 N.W.2d at 75. In DiMauro we found that the affidavit filed with regard to the necessity of a tap on DiMauro's telephone was insufficient to make the necessary showing: "The affidavit filed by the State in this case upon which the DiMauro wiretap was authorized recited in part that `while normal police investigative procedures might provide enough evidence to arrest Ross J. Diamauro [sic] for illegal gambling, normal investigative procedures have been attempted in the past by members of the Omaha . . . Police Division . . . to obtain enough evidence to apprehand [sic] or at least identify the other parties involved in this illegal gambling operation being conducted by Ross J. DiMauro, and these methods have failed and are most likely to fail in the future.'" Id. at 277, 287 N.W.2d at 75.
In the present case, the contents of the affidavits with regard to alternative investigative procedures which had been tried and failed or were likely to fail if tried were more detailed than the showing disapproved in DiMauro, but a sufficient showing was not made as to the futility of alternative investigative procedures as to the defendant Lane. While the showing which must be made has been described as "insignificant and the burden . . . impose[d on the government] de minimus [sic]," Carr, The Law of Electronic Surveillance 4.05[4] at 179 (1977), still the showing must be made that the requested wiretap is not being "`"routinely employed as the initial step in criminal investigation."'" State v. DiMauro and Kessler, supra at 279, 287 N.W.2d at 76 (1980); United States v. Baker, 589 F.2d 1008 (9th Cir. 1979); United States v. Santora, 583 F.2d 453 (9th Cir. 1978). In United States v. Scibelli, 549 F.2d 222 (1st Cir. 1977), the U.S. Court of Appeals for the First Circuit has noted that, as to an application for a second wiretap based in part on information gleaned from a first tap: "[I]ncorporation of the [first] affidavit . . . in the latter two applications went a long way towards meeting the requirement [of a showing of necessity]." 549 F.2d at 228. However, the court went on to state that "each of the two subsequent applications alleges sufficient additional facts showing the continuing failure of normal investigative procedures." (Emphasis supplied). Id. at 228. In Scibelli, the second application applied for taps on four phones other than those applied for in the first application. With regard to the standard for determining the propriety of the district court's authorization of the tap, the First Circuit noted: "An appeals court's role is not to make a de novo determination of sufficiency as if it were a district judge, but to decide if the facts set forth in the application were minimally adequate to support the determination that was made." Id. at 226.
In the present case, the February 10, 1980, application and affidavit of Kinsey stated no "additional facts showing the continuing failure of normal investigative procedures." All the facts dealing with the failure of normal investigative procedures were incorporated verbatim from the January 29, 1980, affidavits. In United States v. Baker, supra at 1012, the court noted: "[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."
The courts agree that the necessity-showing requirement "must be reviewed in a `practical and common sense fashion.'" United States v. Armocida, 515 F.2d 29, 37 (3d Cir. 1975), cert. denied 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84; United States v. Atkins, 618 F.2d 366 (5th Cir. 1980); United States v. Feldman, 535 F.2d 1175 (9th Cir. 1976); United States v. Jackson, 549 F.2d 517 (8th Cir. 1977). However, "the validity of the application for the wiretap authorization and for the order of the authorizing judge cannot be established through the exercise of hindsight. The application and the order 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." United States v. Curreri, 388 F. Supp. 607, 621 (D. Md. 1974).
The January 29, 1980, affidavits did not establish the futility of alternative investigative procedures as to the defendant Lane. The showing of necessity in the January 29, 1980, affidavits focused on the inability of investigators to infiltrate and do business with the "East 9th Street" group because of their suspicion of those not known to the group for a long time. Part of the reason for the lack of success in infiltration revolved around the fact that "the suspects are Black or Hispanic and there are presently no Mexican-American or Black officers available as undercover officers in the State of Nebraska for use by the Scottsbluff Police Department." This was one of the elements cited in State v. Lozano, 209 Neb. 772, 311 N.W.2d 529 (1981), as strengthening the showing of necessity there. The defendant Lane is Caucasian.
The January 29, 1980, affidavits demonstrated the futility of physical surveillance of the suspects' homes, since "[o]fficers . . . are handicapped in conducting investigations due to instant recognition of personnel and equipment by the residents in the East Ninth Street area." The defendant Lane did not live on East 9th Street in Scottsbluff, nor did she live in Scottsbluff at all. Her home and business were both in the neighboring community of Gering. The futility of physical surveillance of the defendant Lane's residence or business was not established by incorporation of the January 29, 1980, affidavits' references to unsuccessful physical surveillance.
The transcripts of the telephone calls intercepted through the Lozano tap, and the analysis of these calls in the February 10, 1980, affidavit of Kinsey, did tend to demonstrate that defendant Lane's part in the drug trading was at a slightly higher level than that of the four persons named in the January 29, 1980, order. But there was nothing in the incorporated affidavits, or in Kinsey's February 10, 1980, affidavit, which would indicate to the trial court that this difference in the part played by Lane would not respond to investigative techniques other than a wiretap. While certain statements with reference to the defendant Lane's family and her position in the community of Gering did appear in an addendum to the application of February 13, 1980, to tap the defendant Richter's telephone, see State v. Richter, post p. 63, 317 N.W.2d 759 (1982), which statements could have strengthened the showing of necessity as to the defendant Lane, these statements did not appear in the February 10, 1980, application or affidavits.
The trial court must make its finding of necessity "on the basis of the facts submitted by the applicant." 86-705(3). The officers who intercepted the conversations set out in the February 10, 1980, Kinsey affidavit all admitted that they had considered no other investigative techniques with regard to the defendant Lane, but upon discovering her involvement immediately applied for a tap on her telephone.
We conclude that the showing made in support of the February 10, 1980, application failed to satisfy the statutory requirement of necessity for the wiretap on the Lane telephones. The failure to sustain the motions to suppress was prejudicial error which requires that the judgment be reversed.
It is unnecessary to consider the other assignments of error.
The judgment of the District Court is reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
BRODKEY, J., not participating in decision.
CAPORALE, J., participating on briefs.