Using Motions to Dismiss Your Case

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Using Motions to Dismiss Your Case: The Importance of Thorough Legal Research

The phrase "criminal defense lawyer" is somewhat misleading because offense is truly the best defense. One way to go on the offense in a criminal case is filing motions to dismiss. Filing these motions is important because, at best, they can get your case dismissed, and at the least, can pose a big enough threat to the government's case to encourage them to make a fair settlement offer.

A motion is a written document that asks the court to do something. A well-written motion is based on legal research into the appropriate laws, cases, and rules and tells the court why it should take a proposed course of action. If a motion is successful, the court issues a "Court Order" dismissing the case without you having to go through the risk of a trial. Motions can ask the court to do any number of things limited only by the law and the criminal lawyer's imagination and willingness to research. Three of the more common and powerful examples are Motions to Dismiss for Violating Constitutional Rights, Motions to Dismiss for no Probable Cause in a Drug Prosecution, and Motions Attacking Search Warrants.

Example: Motion to Dismiss Disorderly Conduct for Violating First Amendment Freedom of Speech Rights

For example, in one case, I represented a young Chicago man who got into a heated argument with a stranger. There was shouting and curses, but never any physical attack. Local police responded and the young man verbally disputed their authority to punish him for protecting his wife. The cops took his words personally and chose to arrest and charge him with disorderly conduct punishable by jail time.

In court, I filed a Motion to Dismiss for Violating First Amendment Free Speech Rights. I argued that under the First Amendment to the United States Constitution protecting Freedom of Speech, Americans enjoy the right to express themselves verbally. According to Supreme Court precedent in Brandenburg v. Ohio, in order for pure speech in this context to be punishable by law, it had to (a) produce "imminent lawless action" and (b) be "likely to incite or produce such action." The motion was successful and the case was dismissed.

Example: Motion to Dismiss for no Probable Cause in a Drug Prosecution

Another example of the power of motions in probing for those lurking weaknesses in the government's case involves a client arrested for drug possession. The client was parked in his car in a park district minding his own business. Cook County police approached him and blocked him in with their squad cars so that the man was not free to leave. They issued him a parking ticket for illegal parking and then, using the illegal parking as justification to search, proceeded to search the client and his car. The search turned up what was allegedly a narcotic and the client was charged with drug possession.

I entered the case and immediately filed a Motion for Discovery in order to obtain the audio recordings of the communication between the arresting officer's patrol car and the police dispatcher. I listened to the audio CD and determined that, at the time the arresting officer blocked in the client's car, he thought that the client was illegally parked in a park district, when in fact, the law only prohibited such parking in a business district.

I drafted and filed a Motion to Dismiss based on the fact that, at the time the arresting officer blocked in the client's car, he had no cause to believe the client was doing anything illegal and it was therefore unconstitutional to search him and his car. The case was dismissed.

Example: Motion Attacking a Search Warrant Based on Lack of Probable Cause

In another case, my client was charged with cocaine delivery charges punishable by up to 30 years in jail. Local police got a warrant from a judge after allegedly finding drugs near, but outside of, the defendant's home. They executed the warrant, searched the client and his home, and charged him with cocaine possession, marijuana possession, and intent to deliver cocaine, a class X felony.

I entered the case and, after extensive research and legal writing, filed a motion to suppress the warrant for lacking probable cause. Basing the motion on the Illinois case of Illinois v. Beck, I argued that the judge improperly authorized the search warrant because there was not enough of a "nexus" or connection between the criminal offense (drugs found outside of the home) and the defendant or his home.

The motion alerted the government to the strong possibility that the case would be dismissed. They stopped seeking jail time and made my client an offer of 410 probation which he happily accepted.

Other Strategies for Challenging Search Warrants

If you can successfully suppress a search warrant, the court will prohibit the government from using any evidence the warrant has produced, which usually means the case against you falls apart. Illinois and Federal Courts are constantly adding new methods and doctrines for suppressing search warrants. Although most challenges to search warrants strike at the warrant's requirement of probable cause, here are three of the many other available strategies:

  • Successive Search Warrants are Highly Suspect. Were two warrants issued to arrest you or search your home within a short amount of time or by the same judge? The repetitive nature of a warrant is a red flag to many judges,

  • Staleness: Courts may suppress a warrant, thereby prohibiting the prosecution from using any evidence gained through the warrant, if the underlying facts supporting the warrant have become stale. For example, suppose a snitch tells police about a drug buy he made from someone six weeks ago. Police then obtain a warrant from a judge to search the defendant's home based on the snitch's allegation that he bought drugs their six weeks ago. This warrant is based on stale information and should therefore be suppressed,

  • Technical Form Requirements. The Constitution requires that a search warrant be sufficiently particular. A warrant that does not provide explicit authorization to search a residence, give a specific address to be searched, or does not contain a statement in the command section of the warrant as to whether the defendant himself, in addition to his home, can be searched, violates the Fourth Amendment's particularity requirements.

Other Grounds to Dismiss in Chicago and Illinois Criminal Cases

Although the above examples of motions are the most common ways to get a case dismissed by motions, Illinois law provides several other statutory grounds for case dismissal including:

  • Failure to place the defendant on trial in compliance with the speedy trial statute,
  • Double Jeopardy violation,
  • Expiration of the statute of limitations,
  • Immunity,
  • Failure to timely indict or conduct a preliminary examination,
  • Lack of jurisdiction,
  • Indictment by a defective grand jury,
  • Improper venue, and
  • Failure of the charging instrument to state an offense.

Call for a Free Confidential Consultation

While I hope this page has answered some of your questions, the only way to get precise answers tailored for the unique facts of your case is a conversation with an expert. I have helped hundreds facing felony and misdemeanor accusations either defeat the charges or at least control the damage they can cause. If there is a way to beat your case, I will find it. If there is a way to settle your case quickly while keeping your record clean, I will find it. On the way, your phone calls and email will be answered promptly and you will have direct access to me personally.

For a free confidential consultation, call me at 312.789.8050 or contact me online. A lawyer is available 24 hours a day every day of the year.