Submitted: October 19, 2018
from United States District Court for the Northern District
of Iowa - Ft. Dodge
WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
D. Terrell pled guilty to conspiracy to distribute
methamphetamine and possession with intent to distribute meth
and "a mixture or substance containing a detectable
amount of cocaine" in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), § 841(b)(1)(C),
846, and 851. The district court denied the motion to
suppress evidence from the wiretaps. He appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
2014, Nebraska law enforcement began investigating a series
of gang-related robberies. Terrell, an alleged member of the
NIKE gang, was a "target suspect." In 2015, the
county attorney for Douglas County, Nebraska submitted a
wiretap application-not "signed and sworn"-to the
Nebraska Attorney General. The application sought to tap the
phones of two members of the NIKE gang (not Terrell). It
included extensive information about felony firearms
violations, drug use and trafficking, robberies, and gang
activity. The Attorney General recommended granting it. The
next day, the state court ordered the wiretap. It later
August 2015, after the first wiretap ended, the county
attorney applied for a wiretap on Terrell's phones. The
county attorney submitted another wiretap application-again
not "signed and sworn"-to the Nebraska Attorney
General, who recommended granting it. Four days later, the
state court ordered the wiretap. It also was extended.
second wiretap ended September 15. Terrell learned about the
wiretaps for the first time on October 26 during a proffer
interview with law enforcement. He received written notice of
the wiretaps in January 2016.
contends the district court erred in denying his motion to
suppress. This court reviews the district court's factual
findings for clear error, and its legal conclusions de novo.
United States v. Lomeli, 676 F.3d 734, 738 (8th Cir.
believes the wiretaps and extensions were invalid because
they were not preauthorized by the Nebraska Attorney General.
The federal wiretap statute requires that a federal
prosecutor, before applying to a federal court for a wiretap,
receive authorization from the United States Attorney General
(or a designee). See 18 U.S.C. § 2516(1).
Terrell argues this requirement applies to Nebraska's
state wiretap statute. It does not.
"wiretap order issued by a state court must comply with
state as well as federal law." United States v.
Moore, 41 F.3d 370, 373 n.1 (8th Cir. 1994). When sought
by a state prosecuting attorney, the federal statute requires
that state-issued wiretaps comply with "applicable State
statute." See 18 U.S.C. § 2516(2). Under
the Nebraska wiretap statute, the Attorney General is
required to give a recommendation, not pre-authorization, to
the district court. See Neb. Rev. Stat. §
86-291 ("Within twenty-four hours of receipt by the
office of the Attorney General of the application from the
county attorney, the Attorney General or his or her
designated deputy or assistant, as the case may be, shall
state to the district court where the order is sought his or
her recommendation as to whether the order should be
granted."). The district court did not err in granting
the wiretap applications without preauthorization from the
Nebraska Attorney General.
argues the wiretap applications were improper because they
were not sworn under oath before submission to the Attorney
General and were submitted by a deputy county attorney rather
than the ...