State v. Hinton

Decision Date06 November 1987
Docket NumberNo. 87-123,87-123
Citation226 Neb. 787,415 N.W.2d 138
PartiesSTATE of Nebraska, Appellee, v. Larry J. HINTON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Wiretaps: Appeal and Error. The Nebraska Supreme Court looks to federal law in interpreting the provisions of Nebraska's intercepted communications statutes, Neb.Rev.Stat. §§ 86-701 through 86-712 (Reissue 1981 & Cum.Supp.1986).

2. Constitutional Law: Appeal and Error. The Nebraska Supreme Court will not consider a constitutional challenge in the absence of a specification of the constitutional provision which is claimed to be violated.

3. Wiretaps: Probable Cause. An application for an order permitting the interception of telephone conversations serves a purpose similar to that served by an application for a search warrant, that is, to present information sufficient to enable a detached and neutral judicial officer to find that probable cause exists to issue an order or warrant.

4. Wiretaps: Probable Cause. The test for issuance of a wiretap order under the provisions of Nebraska's intercepted communications statutes, Neb.Rev.Stat. §§ 86-701 through 86-712 (Reissue 1981 & Cum.Supp.1986), is whether the sworn information before the court is of sufficient apparent reliability to justify a finding that there is probable cause to believe that an offense cognizable under said statutes has been or is being committed.

5. Wiretaps: Controlled Substances: Affidavits. Although investigators may not use wiretaps or eavesdropping devices as the first step in a narcotics investigation, neither must such devices be used only as a last resort; nor must an affidavit supporting a request for permission to wiretap and eavesdrop explain away all possible alternative techniques of investigation.

6. Wiretaps. Substantial, not strict, compliance with the statutes governing interception of telephonic communications is required; that is, the interceptions must be 7. Search and Seizure: Search Warrants. In the absence of a clear showing of prejudice, the failure to comply strictly with postservice statutory requirements will not invalidate a search conducted pursuant to an otherwise valid warrant.

conducted in such a manner as not to violate a party's substantive rights.

8. Search and Seizure: Search Warrants. A failure in the ministerial act of returning and filing a search warrant does not void the warrant.

Thomas M. Kenney, Douglas County Public Defender, and Cathy K. Bashner, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Lynne Fritz, Lincoln, for appellee.


CAPORALE, Justice.

Following a bench trial, defendant, Larry J. Hinton, was adjudged guilty of possessing cocaine, a controlled substance, with the intent to deliver same, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1985). The district court subsequently determined that the offense constituted a Class II felony under the provisions of § 28-416(2) and Neb.Rev.Stat. § 28-405 (Reissue 1985), and sentenced Hinton to imprisonment for a period of 10 to 15 years. Hinton appeals and assigns as errors the district court's failure to suppress the evidence obtained as the result of (1) attaching a pen register on his residence telephone, (2) intercepting his telephone communications, (3) searching a package found in his vehicle, and (4) searching his residence. We affirm.


Based on information derived from a narcotics purchase made by an undercover police officer, and corroborating information received from a confidential source, officers of the Omaha Police Division, on September 20, 1985, filed a combined application and affidavit in the county court for Douglas County seeking a search warrant which would permit the installation of a pen register on the telephone serving Hinton's residence. A pen register is a device which prints the numbers dialed from the telephone line on which it is installed, and further reflects that incoming calls were received, but does not reveal the sources of the incoming calls. The requested warrant was issued as ordered by the county court on September 20, 1985, and a pen register installed on September 23, 1985. This pen register warrant was returned within 10 days of its issuance. The application did not seek to limit the time within which the pen register might be used, and the warrant imposed no such time limit.

The pen register recorded the telephone numbers called from Hinton's residence from the day it was installed until Hinton's arrest on March 21, 1986, a total of almost 6 months. No amended search warrant covering use of this pen register was requested or issued when Hinton changed his home telephone number on or about February 24, 1986; the register simply continued to operate on the new number.

On February 5, 1986, based in part upon information gathered from the pen register and in larger part upon extensive additional investigation, the Douglas County attorney filed a 37-page combined application and affidavit in the district court for Douglas County, seeking permission to intercept conversations conducted over Hinton's residence telephone which would reveal, according to paragraph 62 of the aforesaid document, the following information concerning the illegal distribution of controlled substances:

A. The identity of individuals as yet unknown who are involved in these offenses and the extent of their involvement.

B. The details of carrying out the offenses listed below:

1. The times when these illegal transactions will occur or have occurred.

2. The location of specific illegal narcotics.

3. The identity of the source or sources of supply of the illegal narcotics and the extent of the source(s) [sic] involvement.

4. The manner in which monies derived from the illegal narcotics transactions were utilized, concealed, "laundered", or otherwise disposed.

5. The arrangement and verification of meetings between individuals involved in the aforementioned offenses.

The district court, finding that "normal police investigative methods have been attempted and failed and reasonably appear [likely] to fail to succeed in the future," granted the application on February 19, 1986, and ordered

intercept[ion of] the wire or oral communications of Larry Hinton ... over [Hinton's then residence telephone number] ... for a period of thirty (30) days from the date of the actual physical hook-up, and shall not automatically terminate when the described communications have first been obtained, but will terminate upon attainment of the authorized objectives as outlined in paragraph 62 of the application and affidavit.

The court further ordered "interim reports every ten (10) days from the date of the actual physical hook-up, setting forth the number of calls intercepted ... and the nature of the calls."

Hinton's telephone was tapped, pursuant to this order, on February 19, 1986. Conversations monitored on February 20 and 21, 1986, revealed, among other things, that Hinton intended to change his telephone number; consequently, the county attorney filed an amended combined application and affidavit with the district court. This document repeated the assertions of the first application and affidavit in that court, added assertions informing the district court of the pending change in Hinton's telephone number, and requested authorization to intercept conversations carried over the new number. The district court, again finding that "normal police investigative methods have been attempted and failed and reasonably appear [likely] to fail to succeed in the future," granted the relief sought in the amended application on February 24, 1986, and authorized the interception of conversations over Hinton's new telephone number for 25 days, again ordering the filing of interim reports every 10 days while the tap continued.

Conversations monitored pursuant to these two wiretap orders suggested that Hinton was using his telephone to arrange the shipment of substantial amounts of cocaine via a commercial package carrier from a New York address to the Omaha area, and was paying for the cocaine by shipping cash to New York via the same carrier. On March 3, 1986, the police officers monitoring the conversations overheard Hinton tell his suspected New York cocaine source that Hinton would ship out a quantity of money the following day. On this basis the officers, on March 4, 1986, requested a warrant to search a package Hinton had delivered to the carrier for shipment. An order of the county court granting this money shipment search warrant was issued on March 4. The package was searched pursuant to this warrant at the carrier's Omaha terminal on March 4 and found to contain $22,500. The package was then resealed and allowed to continue on to its destination in New York. The county court had ordered return of this money shipment search warrant within 10 days of issuance; however, it was not returned until May 30, 1986, more than 12 weeks after issuance.

Subsequently, another telephone call between Hinton and the suspected New York source was monitored by the police on March 14, 1986; this conversation also indicated that Hinton would be shipping a quantity of cash to the suspected source, via the carrier, in prepayment for a drug shipment. A search warrant for this second shipment of money was requested from the county court, and an order granting the request was issued on March 14, 1986. This second money shipment search warrant was executed the same day it was issued, and the package was searched at the carrier's Omaha terminal. It was found to contain $19,000. The package was then resealed and allowed to continue On March 14, 1986, the monitored conversation revealed that Hinton's suspected New York source intended to personally deliver Hinton a supply of cocaine a few days later. However, on March 17 the police intercepted a telephone...

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14 cases
  • State v. Strohl
    • United States
    • Nebraska Supreme Court
    • January 8, 1999
    ...were intercepted in violation of the Nebraska intercepted communications statutes, § 86-701 et seq. In State v. Hinton, 226 Neb. 787, 794, 415 N.W.2d 138, 143 (1987), we stated that the Nebraska intercepted communications statutes it unlawful to ... deliberately intercept ... through the us......
  • State v. Quinn
    • United States
    • Minnesota Supreme Court
    • January 31, 1989
    ...of citizens. See, e.g. United States v. Chavez, 416 U.S. 562, 580, 94 S.Ct. 1849, 1858, 40 L.Ed.2d 380 (1974); State v. Hinton, 226 Neb. 787, 415 N.W.2d 138, 147 (1987).16 As an aside to, but not a part of this ruling, the trial court omnibus hearing judge did opine certain hypothetical cir......
  • U.S. v. Covos
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 1, 1988
    ...We note in passing, however, that the Nebraska Supreme Court recently declined to consider this question, see State v. Hinton, 226 Neb. 787, 415 N.W.2d 138, 144 (1987), because the appellant did not specify the constitutional provision allegedly violated by use of the pen register. Id.6 Cov......
  • United States v. Terrell
    • United States
    • U.S. District Court — Northern District of Iowa
    • July 18, 2016
    ...under Nebraska law and is, therefore, not controlling precedent on the issue before me. Moreover, Terrell's reliance on State v. Hinton, 415 N.W. 2d 138 (Neb 1987) is misplaced. As Judge Williams cogently noted in his Report and Recommendation:defendant attempts to stretch the application o......
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