State v. Golter
State v. Golter
Opinion of the Court
Paul Karl Goiter was charged with conspiracy to deliver a controlled substance. Neb. Rev. Stat. §28-202(1)(a) and (b) (Reissue 1979); § 28-416(2) (a) (Cum. Supp. 1982); §28-405 sch. 11(a)(4) (Cum. Supp. 1982); § 28-401(16) (a) and (c) (Cum. Supp. 1982). Goiter’s motion to suppress evidence obtained by the State of Nebraska as a result of a wiretap of Goiter’s residential telephone was overruled.
On November 11, 1981, the county attorney of Antelope County, Nebraska, applied to the district court for an order authorizing a wiretap of the residential telephone of Paul Karl Goiter of Antelope County, Nebraska. Attached to the county attorney’s application was an affidavit of Manuel S. Gallardo, a drug investigator for the Nebraska State Patrol. That affidavit was also dated November 11, 1981. Gallardo’s affidavit contained several allegations in support of the application for the wiretap. A criminal investigator for the State Patrol attempted to purchase y2 ounce of cocaine from Goiter on December 6, 1980. In the investigator’s car parked outside a tavern, Goiter delivered y2 ounce of cocaine to the investigator, who paid Goiter $1,125 for the delivery. At this meeting Goiter mentioned he could deliver two kinds of cocaine. In the car Goiter produced a vial of cocaine and proceeded to “snort” some. Goiter then handed the vial of cocaine to the investigator, who simulated “snorting the cocaine.” The investigator’s refusal to “snort the cocaine” bothered Goiter. Goiter gave the $1,125 back to the investigator, who later returned the cocaine to Goiter. After several contacts the investigator failed to make arrangements for a “deal” with Goiter. The investigator’s subsequent attempts to contact Goiter were unsuccessful because Goiter did not return the investigator’s telephone calls. A second undercover purchase would create suspicion, according to the affidavit. The affidavit continued by reciting that Alan Goiter,.a relative of Paul Goiter, was the subject of an investigation from October 7 to October 10, 1981, regarding the sale of marijuana, but there is no reference to participation by Paul Goiter. Alan Goiter, on October 8, 1981, detected an aerial surveillance by the State Patrol. (The exact site under aerial surveillance is not specified in the affidavit.)
Relying solely on the preceding affidavit of Gallardo, on November 11, 1981, the district court authorized a wiretap of Goiter’s telephone for a period of 30 days. Pursuant to the order of November 11, there was a wiretap of Goiter’s telephone. On December 11, 1981, an application for an extension of the Goiter wiretap was filed. A copy of Gallardo’s affidavit of November 11 was attached to the application of December 11. The application of December 11 incorporated by reference the contents of Gallardo’s affidavit dated November 11, 1981. On December 11 the trial court authorized an extension of the Goiter wiretap for an additional 30 days.
Goiter questioned the validity of the court’s order authorizing the wiretap and filed a motion to suppress information obtained by the wiretap. At the hearing on the motion to suppress, Vernon Hickson, sheriff of Antelope County for 15 years, testified that he could conduct a visual surveillance of Goiter’s property and that there would not have been any problem regarding such visual surveillance. Hick-
The validity of the order authorizing a wiretap of Goiter’s telephone rests upon Neb. Rev. Stat. § 86-705(1) (c) (Reissue 1981), namely, that the application for the wiretap “shall include the following information: . . . (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”; and, further, upon the determination by the district court that a wiretap was necessary under the circumstances, in accordance with § 86-705(3)(c).
In State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977), we set out the background of Neb. Rev. Stat. §§ 86-701 et seq. (Reissue 1981), the Nebraska “wiretap” law, and its federal counterpart, 18 U.S.C. §§2510 et seq. (1976). In reference to the federal “wiretap” law, the U.S. Supreme Court in United States v. Giordano, 416 U.S. 505, 527, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974), stated: “The words ‘unlawfully intercepted’ are themselves not limited to constitutional violations, and we think Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” We make similar observations about the Nebraska
In State v. Kolosseus, supra, we held that § 86-705(1) (c) “does not require the exhaustion of all other possible or reasonable avenues of investigation. It does not, in fact, require that other methods even be tried if the application demonstrates other procedures are unlikely to succeed or are too dangerous. The requirements are alternative, that is, other methods must have been tried and failed ‘or’ the second alternative must be demonstrated. . . . ‘Investigators are not obliged to try all theoretically possible approaches. It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation. The government must, however, fully explain to the authorizing judge the basis for such a conclusion.’ . . . We conclude that what is required under the first alternative is that the application make 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 tap is authorized.” (Emphasis supplied.) Id. at 414-15,
Section 86-705(1)(c) does contain a “necessity” requirement in order to limit the use of wiretaps with their intrusive nature and to assure that wiretapping is not utilized in situations where traditional investigative techniques would suffice to expose the crime. See, United States v. Kahn, 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974); United States v. Bailey, 607 F.2d 237 (9th Cir. 1979). The purpose of the necessity requirement, i.e., the “full and complete statement,” is not to foreclose a wiretap until every conceivable investigative technique has been exhausted. Rather, the full and complete statement informs a court of the nature and progress of the investigation, explains the difficulties involved in normal investigative techniques, and assures that a wiretap is not obtained where conventional investigative techniques would be sufficient to expose a crime. United States v. Lanza, 341 F. Supp. 405 (1972); United States v. Fury, 554 F.2d 522 (2d Cir. 1977). Law enforcement agencies must provide the court with sufficient information by which the court can exercise the independent judicial determination required under the Nebraska wiretap law. See United States v. Fury, supra. The full and complete statement must include a factual basis “as to why normal investigative procedures are not being used.” (Emphasis supplied.) United States v. Bobo, 477 F.2d 974, 981 (4th Cir. 1973). Affidavits in support of an application for a wiretap must contain a statement demonstrating (1) that other investigative procedures have been tried but have failed or (2) that other investigative procedures reasonably appear to be unlikely to succeed, if tried, or reasonably appear to be too dangerous. State v. Lane, 211 Neb. 46, 317 N.W.2d 750 (1982).
The “statement” required by § 86-705(1) (c) is a statement of fact. A recital regarding the difficulties of gathering usable evidence is not a sufficient
The affidavit in the present case states there can be no visual surveillance from automobiles driven along the road near Goiter’s residence. Beyond such reference to visual surveillance from automobiles, the affidavit contains no facts describing the existence, failure, or perils of visual surveillance of the Goiter residence. See State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977). In essence, the balance of the affidavit regarding visual surveillance recites hypothesis and not history. It is reasonably inferable from the affidavit that visual surveillance is possible and practical under the circumstances. However, the affiant predicts that the quantity or quality of information obtainable through visual surveillance probably would not establish the elements of the crime alleged. Such investigative augury hardly reaches the stature of a statement of fact demonstrating exhaustion or unavailability of normal or conventional investigative techniques.
For the reasons stated the trial court did not have sufficient factual information with the application, as prescribed by § 86-705(1) (c), for an informed decision required under § 86-705(3) (c). The wiretap was therefore improperly authorized and the communications sought to be suppressed by the motion were “unlawfully intercepted” within the meaning of § 86-705(11). The motion to suppress should have been sustained.
Concerning Goiter’s claim of error regarding the sufficiency of evidence of a conspiracy, our holding in this case makes it unnecessary to consider such assignment of error.
All evidence gathered through electronic surveillance pursuant to the order of November 11, 1981, and its extension of December 11, 1981, shall not be admitted in subsequent proceedings. In view of the admission of evidence at trial, that is, evidence obtained in violation of § 86-705, the conviction of Paul Karl Goiter is set aside, the judgment of the district court in these proceedings is reversed, and the cause
Reversed and remanded for a new TRIAL WITH DIRECTIONS.
Dissenting Opinion
dissenting.
The affidavit which the majority holds to be insufficient to support a wiretap order contains two important groups of facts.
First, it is apparent that as a result of subpoenas served on the telephone company, a record of long-distance calls charged to the defendant’s number from September 1, 1980, to August 15, 1981, revealed that a number of highly suspicious calls were placed.
Six calls were made to a party in California who had a criminal record consisting of carrying a concealed weapon and trespassing; 5 calls to an O’Neill number, whose subscriber purchased $600 worth of cocaine from a go-between of the defendant, and who also was an associate of a pimp and drug dealer in South Dakota; 5 calls to a Brunswick, Nebraska, number, whose subscriber was involved in dealing in 80-pound marijuana sales, hashish, and cocaine amounting to $100,000 in a 2^-month period; 1 call to a Creighton, Nebraska, number to a subscriber who had been engaged in illicit drug operations; 42 calls to an Osmond, Nebraska, number, the subscriber of which, according to a reliable informant, was involved in the distribution of narcotics with the defendant; 12 calls to 5 South Dakota numbers, the subscribers of which, according to a reliable informant, were involved in the distribution of narcotics with the defendant, or were involved in narcotics in South Dakota, or owned a particular airplane which was observed by an ordinary citizen landing on a nearby airstrip and regularly met with the defendant; and 4 calls to a Yankton, South Dakota, number listed to a person who was a pilot of the airplane mentioned above, which was observed
Additionally, 17 calls were made to a Baldwin Park, California, number to a subscriber who was an associate of the defendant and was suspected of being involved in drug dealings with the defendant; 1 call to a Plainview, Nebraska, number to a subscriber who the same informer previously mentioned said sold drugs obtained from the defendant; 13 various calls to 4 numbers in Texas, California, and Nebraska to subscribers, all of whom had records involving drugs and drug distribution.
The facts recited in the affidavit mentioned in the majority opinion are that the defendant’s residence is located in a rural area near Orchard, Nebraska; that such residence has no public access roads that the affiant can get close to; that there is very little traffic, and what there is is of a local nature known to the defendant and his friends. It is true that the affiant then concludes that, because of those facts, ground surveillance of the defendant’s residence would not be possible.
Even throwing out the affiant’s conclusion, which we must, it seems apparent that there are facts from which a magistrate could reach the conclusion that the affiant did. Even though a local sheriff testified to the contrary, it was a factual issue which had evidence to support either conclusion. The applicable standard of review is that the findings of fact made by the district court will not be set aside on appeal to this court unless they are clearly erroneous. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).
Finally, it is extremely doubtful that surveillance would disclose any pertinent facts other than those
I would affirm the judgment of the trial court in overruling the motion to suppress.
Reference
- Full Case Name
- State of Nebraska, Appellee, v. Paul Karl Golter, Appellant
- Cited By
- 12 cases
- Status
- Published