“A suppression hearing is preparatory, because it relates to auxiliary issues not immediately relevant to the question of guilt and is held in anticipation of certain evidence being introduced at a forthcoming trial.” A motion in limine is not a substitute. By not filing a motion to suppress, defendant waived it. State v. Cotton, 299 Neb. 650, 2018 Neb. LEXIS 74 (Apr. 21, 2018):
A suppression hearing is preparatory, because it relates to auxiliary issues not immediately relevant to the question of guilt and is held in anticipation of certain evidence being introduced at a forthcoming trial. It is the intention of § 29-822 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. Accordingly, absent an exception, a failure to move for the suppression of evidence seized unlawfully waives the objection.
As the State argues, Cotton’s motion to suppress did not make any mention of the methamphetamine or other drugs and drug paraphernalia seized during the search of Labno’s apartment. While Cotton would have had cause to file a new motion to suppress or amend his previous motion less than 10 days prior to trial, as a response to the State’s amended information, he did not do so. Instead, he filed a motion in limine to exclude methamphetamine evidence on the basis of evidence rules 104, 402, 403, and 404—not Fourth Amendment grounds. While he did make a Fourth Amendment objection to the evidence at trial, he did not make a motion to suppress and the court would have had no basis to apply the statutory exception for surprise when the objection concerned the exact evidence which was the subject of Cotton’s motion in limine.
We conclude that Cotton waived his right to object to the seizure’s lawfulness by failing to move for the suppression of the evidence. Thus, this assignment of error is without merit.