State v. Kolosseus

• Decision Date: 27 April 1977
• Docket Number: No. 40983,40983
• Citation: 253 N.W.2d 157,198 Neb. 404
• Parties: STATE of Nebraska, Appellee, v. Thomas J. KOLOSSEUS, Appellant.
• Court: Nebraska Supreme Court

Page 157

253 N.W.2d 157

198 Neb. 404

STATE of Nebraska, Appellee, v. Thomas J. KOLOSSEUS, Appellant.

No. 40983.

Supreme Court of Nebraska.

April 27, 1977.

Syllabus by the Court

1. Judicial notice is taken of the status of public officers and their official positions within the jurisdiction of the court.

2. The phrase "punishable by imprisonment for more than one year" as used in the statute permitting interception of communications when such interception may provide evidence of commission of, among other things, murder or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than 1 year, modifies only the catch-all category of "all other crimes"; thus, enumerated offenses such as gambling need not be felonies before wiretapping may be authorized; the statute was not simply aimed at major crimes.

3. A prosecution for gambling in violation of a city ordinance which is punishable by imprisonment is a criminal prosecution both in form and in substance and is one of the crimes for which wiretap may be authorized if the requirements of the pertinent statutes are met.

4. The statutes require suppression of the contents of any wiretap interception and any evidence derived therefrom if the communication was unlawfully intercepted.

5. In a wiretap application, allegations under subsection (1)(c) of section 2518, Title 18 U.S.C.A., play a "substantial role" in judicial authorization and if the allegations are insufficient to meet these statutory requirements, the interception is unlawful.

6. Congress did not attempt to require "specific" or "all possible" investigative techniques be tried before orders for wiretaps could be issued.

7. Wiretap procedures cannot be routinely employed as an initial step in criminal investigation, but neither is government required to use a wiretap only as a last resort.

J. William Gallup, Omaha, for appellant.

Herbert M. Fitle, City Atty., Gary P. Bucchino, City Pros., George A. Sutera, Asst. City Pros., Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

CLINTON, Justice.

The defendant was charged in the municipal court of the city of Omaha with 34 counts of gambling in violation of sections 25.77.010 and 25.77.020 of the ordinances of the city of Omaha. He was found guilty on all counts and fined the sum of $100 on each count. On appeal to the District Court the judgments were affirmed. The evidence on which the convictions were founded was obtained by means of a wiretap interception of oral communications over the defendant's telephone lines, such wiretap having been authorized by an order of the District Court for Douglas County, Nebraska, pursuant to an application filed by the county attorney of Douglas County under the provisions of sections 86-701 through 86-707, R.R.S.1943. On appeal to this court the issues raised by the defendant are: (1) Whether the defendant's motion to suppress the evidence obtained by means of the wiretap was improperly denied because the wiretap was unlawful. (2) Whether the penalties imposed were excessive and so constituted an abuse of discretion by the court. We affirm.

The pertinent portions of the municipal ordinances are as follows: "For the purposes of this Chapter gamble shall mean to enter into an agreement with another person whereby a person risks the loss of money or property to realize a profit in any game; to make use of any mechanical device or instrument in which the element of chance is the controlling factor to realize a profit; or to enter into a wager wherein the risk of the loss of money or property to realize a profit is dependent upon the outcome of any future happening." § 25.77.010, Ordinance 24314, s. 1, City of Omaha.

"It shall be unlawful for any person purposely or knowingly to gamble, offer to gamble, or provide facilities for gambling; provided, however, the provisions of this Section shall not make unlawful any act permitted by state law." § 25.77.020, Ordinance 24314, s. 1, City of Omaha.

The application for the wiretap was executed by Donald L. Knowles as county attorney of Douglas County, Nebraska. The cases were prosecuted by Gary Bucchino, city prosecutor of the city of Omaha.

The defendant's contention that the interceptions were illegal is founded upon the following: (1) Gary Bucchino, as city prosecutor, had no power to prosecute in a case where evidence is obtained by wiretap. (2) Title 18 U.S.C.A., section 2516, authorizes a state prosecutor to apply for a wiretap insofar as the crime of gambling is concerned only where the interception will provide evidence of a felony offense and gambling in Nebraska is not punishable as a felony. (3) A prosecution for violation of a city ordinance is a civil action and evidence obtained by wiretap interception under the above statute is inadmissible in such civil action. (4) The application is insufficient under the pertinent statutes because it does not adequately state that other investigative procedures have been tried and failed, or why other investigative methods reasonably appear to be unlikely to succeed if tried. Title 18 U.S.C.A., § 2518; § 86-705(1)(c), R.R.S.1943.

Even if we assume arguendo that the status of the prosecutor who conducts the trial is relevant to the issue of the validity of the wiretap authorization, the defendant's first point regarding the alleged lack of standing of Gary Bucchino is not well taken. Section 29-104, R.R.S.1943, provides as follows: "The term prosecuting attorney shall mean any county attorney. Such term shall also mean any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction." Judicial notice is taken of the status of public officers and their official positions within the jurisdiction of the court. Rhodes v. Crites, 173 Neb. 501, 113 N.W.2d 611; § 27-201, R.R.S.1943. We also take judicial notice of the fact that Gary Bucchino is by appointment a deputy county attorney of the County of Douglas. He therefore had authority to prosecute misdemeanors in a court of competent jurisdiction.

The defendant's second point involves the construction and application of Title 18 U.S.C.A., section 2516(2), and section 86-703, R.R.S.1943. Federal law preempts the field in the area of interception of oral or wire communications and prohibits the use of such intercepted communications or any evidence derived therefrom, if the disclosure is in violation of Title 18 U.S.C.A. Federal law authorizes such interceptions and use of such evidence if a state statute permits it and the authorizing state statute meets the minimum requirements of the pertinent provisions of the federal statute. Title 18 U.S.C.A., § 2516. See, also, Senate Report No. 1097, 90th Congress, 2d Session, 1968, U.S.Code Cong. & Admin.News, pp. 2112, 2187.

Title 18 U.S.C.A., section 2516(2), provides that the principal prosecuting attorney of any state or the principal prosecuting attorney of any subdivision thereof, if authorized by statute of the state, may make application to a state judge for an order authorizing interception or wiretap and the judge may grant, in conformity with Title 18 U.S.C.A., section 2518, "and with the applicable State statute," an order authorizing an interception in the investigation of certain specific offenses, i. e.,: " . . . when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception." Section 86-703, R.R.S.1943, provides in part: " . . . or any county attorney may make application to any district court of this state for an order authorizing or approving the interception of wire or oral communications, and such court may grant, subject to the provisions of sections 86-701 to 86-707, an order authorizing or approving the interception of wire or oral communications by law enforcement officers having responsibility for the investigation of the offense as to which application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, robbery, bribery, extortion, dealing in narcotic or other dangerous drugs, gambling, or any conspiracy to commit any of the foregoing offenses."

Since federal law governs, it is apparent that the more strict provision, whether federal or state, must be followed. Defendant argues that the federal statute authorizes an interception in the case of specified crimes, in this instance, gambling, and only if that offense is a felony under state law punishable by imprisonment for more than 1 year. This argument is founded upon the position that the phrase in Title 18 U.S.C.A., section 2516(2), "and punishable by imprisonment for more than one year," modifies all the previously listed offenses. On the other hand, the State argues that logically and grammatically the above phrase modifies only the first immediately preceding antecedent, to wit, "or other crime dangerous to life, limb, or property."

The vast majority of state and federal courts which have had occasion to consider the proposition have resolved the issue contrary to the defendant's contention. People v. DiFiglia, 50 App.Div.2d 709, 374 N.Y.S.2d 891; United States v. Carubia, D.C., 377 F.Supp. 1099; United States v. Curreri, D.C., 388 F.Supp. 607. We recognize that the last two cited opinions are those of a trial court, but we have examined their reasoning and found it sound. Our examination of the federal statute leads us to conclude that the State's position is clearly the correct one.

Title 18 U.S.C.A., section 2516(2),...