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State v. Kanarick7/23/1999
t erred in affirming the county court's judgment which denied Kanarick's motion to suppress and concluded that § 60-6,197(10) is not unconstitutional.
STANDARD OF REVIEW
" Whether a statute is constitutional is a question of law, with respect to which an appellate court has an obligation to reach a Conclusion independent of that of the trial court." State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999).
ANALYSIS
"[2,3] In the proceedings at trial in county court and again on appeal in district court, through the vehicle of his motion to suppress, Kanarick sought both to exclude his statements to the trooper and to have § 60-6,197(10) declared unconstitutional. A challenge to a statute, asserting that no valid application of the statute exists because it is unconstitutional on its face, is a facial challenge." State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998).
This court has repeatedly held that in order to bring a constitutional challenge to the facial validity of a statute, the proper procedure is to file a motion to quash or a demurrer. See, e.g., id.; State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980). See, also, Neb. Rev. Stat. §§ 29-1808, 29-1810, and 29-1812 (Reissue 1995).
We have further stated:
"All defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue." State v. Roucka, 253 Neb. at 889, 573 N.W.2d at 421.
Indeed, once a defendant has entered a plea, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash. Id. In the instant case, Kanarick did not file a motion to quash or a demurrer, he entered a plea of not guilty on December 3, 1997, and he did not subsequent thereto seek leave to withdraw his plea.
" In this case, Kanarick purported to challenge the constitutionality of § 60-6,197(10) in the context of his motion to suppress. A motion to suppress, which merely seeks the exclusion of certain evidence, may not be used as a substitute for a motion to quash, which has as its objective the dismissal of the entire proceedings."
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.
The statutes so provide. Pursuant to § 29-1808,
" motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged."
Pursuant to Neb. Rev. Stat. § 29-1807 (Reissue 1995),
" he accused may except to an indictment by (1) a motion to quash, (2) a plea in abatement, or (3) a demurrer."
Under the cases cited above and the statutes, the failure to properly challenge the proceedings and the entry of a plea result in a waiver of the purported defect.
Specifically, we note that under § 29-1812, " he accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue."
In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. See Neb. Rev. Stat. §§ 29-115 (Cum. Supp. 1998) and 29-822 (Reissue 1995). In this regard, we have observed
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