§ 29-822 — Motion to suppress; filing; time; failure to file; effect; exception

Nebraska § 29-822

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

Any person aggrieved by an unlawful search and seizure may move for return of the property so seized and to suppress its use as evidence. The motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. Where the charge is other than a felony, the motion shall be filed in the court where the complaint is pending, and must be filed at least ten days before trial or at the time of the plea to the complaint, whichever is the later, unless otherwise permitted by the court for good cause shown. Unless claims of unlawful search and seizure are raised by motion before trial as herein provided, all objections to use of the property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived; Provided, that the court may entertain such motions to suppress after the commencement of trial where the defendant is surprised by the possession of such evidence by the state, and also may in its discretion then entertain the motion where the defendant was not aware of the grounds for the motion before commencement of the trial. In the event that the trial court entertains any such motion after the commencement of trial, the defendant shall be deemed to have waived any jeopardy which may have attached.

Legislative History

Source: Laws 1963, c. 155, § 1, p. 553. Annotations: 1. Waiver 2. Procedure 1. Waiver The intention of this section is that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018). The ten-day rule of this section is valid and operable; it prevails over inconsistent, local court rules. State v. Vaughan, 227 Neb. 753, 419 N.W.2d 876 (1988). Objection to illegally seized evidence is waived if objection is not made at least 10 days prior to trial. State v. Madsen, 226 Neb. 722, 414 N.W.2d 280 (1987). Failure to make timely motion to suppress is a waiver of such right where evidence not a surprise. State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977). Error claimed because of defendant's absence was held waived for reasons stated. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975). A waiver of objections to evidence on the ground that it was seized in an unreasonable search occurs when no objection is made at least ten days before trial and where the exceptions herein have no application. State v. Stowell, 190 Neb. 615, 211 N.W.2d 130 (1973). Failure to move for suppression of evidence seized unlawfully waives the objection. State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972). 2. Procedure Absent an exception, a failure to move for the suppression of evidence seized unlawfully waives the objection. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018). After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in this section excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003). The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. A motion to suppress, with certain exceptions, must be made in writing. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999). There is no statutory requirement to file a second motion to suppress after the granting of a new trial where the new motion to suppress would be identical to the original motion. State v. Schoonmaker, 249 Neb. 330, 543 N.W.2d 194 (1996). The validity of a search of a defendant's property depends upon whether the defendant's consent to do so was given voluntarily. State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992). The intention embodied in this section is that unless a motion to suppress falls within one of the statutorily specified exceptions, such a motion is to be ruled upon and finally determined before trial. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990). It is clearly the intention of this section that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989). A person against whom a search is directed and whose property is seized in a search has standing to challenge the validity of the search where the case against him depends upon the defendant's possession of the goods. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975). Where defendant fails to timely move to suppress hereunder, he cannot secure the results of an order of suppression by a late motion to suppress testimony or to limit interrogation of his own witnesses on relevant and material matters. State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975). Unless within exceptions herein, motions to suppress evidence should be finally determined before trial, but the trial court may correct errors at the trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974). An exception to the exclusionary rules of search and seizure is the rule of harmless error beyond a reasonable doubt. State v. Reed, 188 Neb. 815, 199 N.W.2d 707 (1972). Trial court's action in permitting filing and hearing of defendant's motion to suppress evidence after time provided herein approved, but overruling of motion sustained on other grounds. State v. Huggins, 186 Neb. 704, 185 N.W.2d 849 (1971). Section intends that motions to suppress evidence be determined before trial, but trial court be not precluded from correcting errors at trial. State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969).