Applications to intercept wire, oral, or electronic communications under 18 U.S.C.
§ 2518, and related requests are subject to this rule.
(a) Assignment of Judge; General Procedures.
An application for authorization to intercept wire, oral, or electronic
communications under 18 U.S.C. § 2518 and related requests must be
submitted to the chief judge. If the chief judge is unavailable, an application
and related requests may be submitted to the active district judge next
senior in service who is available. A judge is not considered "unavailable"
merely because the judge presides in Lincoln or Omaha and the
government's attorney or the affiant resides or works in another city. Unless
the judge waives the requirement, all applications, supporting affidavits,
proposed orders, and other documents must be provided in draft form for
review by the judge at least 24 hours before the time set for consideration
of the documents. Unless the judge waives the requirement, the
government's attorney and the law enforcement officer who serves as the
affiant must personally appear before the judge at all proceedings related
to the interception. Since consideration of interception applications and
related matters are often conducted in chambers without a deputy clerk, the
government's attorney is responsible for ensuring that all interception
applications, orders, and other related documents and recordings are
properly filed with, or submitted to, the clerk after being presented to or
issued by the judge. Unless otherwise ordered, all interception applications,
orders, and other related documents and recordings presented to or issued
by the judge must be sealed.
(b) Handling of Recordings Upon Expiration of Order.
Unless the issuing judge directs otherwise, recordings of the contents of
any wire, oral, or electronic communication that have been intercepted must
be made available to the issuing judge immediately after the interception
Effective December 1, 2025 Nebraska Criminal Rules
order expires, and the procedures stated below must be followed.
(1) Delivery.
The recordings must be delivered personally to the issuing judge and
the clerk. Thereafter, the clerk must maintain custody of the
recordings. In the presence of the issuing judge and the clerk, the
recordings must be placed in a box or other container, and the box
or other container must be sealed with tape or other sealant. The
clerk must initial the tape or sealant and include the date and
approximate time the box or other container was sealed. In addition,
the clerk must prepare a receipt reflecting the evidence received, and
the receipt must be signed by the clerk receiving the evidence and
the agent delivering the evidence.
(2) Sealing.
While in the clerk's custody, the recordings must be kept in a secure
facility in a manner that protects the recordings from editing or other
alterations.
(c) Disclosure.
(1) In General.
Without relieving the government of its initial responsibility as
described in Nebraska Criminal Rule 41.2(c)(2), the existence and
contents of intercepted communications may be referred to and
discussed in a party's motions and briefs, exhibits offered and
received in evidence, and in judicial opinions.
(2) Government's Initial Responsibility.
If the government intends to disclose the substance of intercepted
communications in briefs, exhibits, motions, or otherwise, it must
comply with Title III of the Omnibus Crime Control and Safe Street
Act of 1968, 18 U.S.C. §§ 2510-2522, particularly 18 U.S.C. § 2517
and 18 U.S.C. § 2518(8)(b), or, in the case of conversations
intercepted under a state court order, the Nebraska equivalent of the
provisions of Title III. Applications for disclosure in a federal
proceeding must be addressed to a federal judge even if the
interception was authorized under state law. If federal and state law
conflict, federal law governs federal court proceedings.
Effective December 1, 2025 Nebraska Criminal Rules
(d) Use at Trial.
Because the use of intercepted communications at trial presents special
problems, the government's attorney must try to stipulate with the opposing
attorney at least 60 days before trial regarding the use of interceptions at
trial. If a stipulation is reached, it must promptly be given to a judge for
review. The judge may approve or reject all or part of the stipulation and
enter appropriate orders. If a stipulation is not reached, then the
government's attorney must file, no later than 50 days before trial, a motion
requesting an order instructing the parties regarding the use of intercepted
communications at trial.
