The Fourth Amendment to the U.S. Constitution requires police to have probable cause before they can obtain a search warrant or a warrant for your arrest. If the information contained in the warrant is insufficient to show probable cause, the search or arrest is invalid, and you can have the charges against you dismissed. To challenge probable cause, you must request a probable cause hearing at arraignment and hire an attorney to file a motion to dismiss.
Consider asking for a continuance. A continuance postpones your arraignment to a later date, usually a week or two out. If you aren't currently incarcerated, asking for a continuance can give you time to gather your resources and find your own attorney.
The court usually schedules an arraignment within 48 hours of your arrest, but it may be longer if the courts are not in session, such as if you were arrested on a Friday afternoon.
You have the right to be represented by an attorney at your arraignment. If you can't afford an attorney, the judge will appoint a public defender to represent you and may postpone the arraignment anyway to give you a chance to discuss the charges with them.
If you want to challenge probable cause, hiring a private criminal defense attorney may be a better option for you.
Respond to the charges. You will be given a written summary of the charges against you, which typically also will be read aloud, and asked how you plead. If you want to challenge probable cause, you must plead "not guilty."
The judge will ask you questions to make sure you understand the charges against you and are generally competent to enter a plea. Answer these questions honestly.
If you have any questions or concerns about the charges and the potential penalties, you can ask the judge at this time. The judge must make sure you understand the charges before he or she can accept your plea.
Ask the judge to review your bail status. Even if you've already had a bail hearing, you can ask the arraignment judge to review that status and reduce or eliminate your bail. If bail hasn't been set yet, the arraignment judge will set it.
The prosecutor will be at your arraignment, and may argue that newly discovered information justifies an increase in bail, even if you've already posted bail.
The judge will review all the circumstances related to bail and determine whether bail should be increased or decreased. Factors involved in this decision include the severity of the charges against you and how much of a flight risk you represent.
The judge also may impose conditions of your release, such as requiring you to stay in the state or even in the county, or forbidding you from drinking alcohol. These conditions typically vary depending on the charges against you.
Request a probable cause hearing. During arraignment, the judge usually sets dates to hear any pretrial motions. Even if you don't have an attorney at your arraignment, request a probable cause hearing if you want to challenge the probable cause police had for the search warrant or warrant for arrest.
The court typically will schedule the probable cause hearing no more than two or three weeks after the date of your arraignment.
If you don't have an attorney at arraignment, the attorney you hire may request a continuance of this hearing. However, it's still important to request one and get the issue on the court's docket.
There may be a form for you to fill out and request a probable cause hearing. The form requires basic information about you and the charges against you.
Seek referrals from family or friends. Often the best attorney recommendations come from people you know and trust. Similarly, if you've used an attorney for a different matter, they might know a criminal defense attorney they can recommend.
If you know somebody who recently had criminal charges dismissed, you might ask what attorney they used and whether they would recommend him or her.
Attorneys can be great sources of recommendations, even if they practice in another field of law. Through law school as well as various professional functions, attorneys tend to know other attorneys who practice in different fields than they do.
However, keep in mind that just because you get a recommendation doesn't mean that attorney will automatically be your best choice. You still need to make sure that attorney handles cases like yours.
For example, an attorney who specializes in DUIs may not necessarily be the best person to handle burglary charges.
Search lawyer directories. The website of your state or local bar association typically has a searchable directory of attorneys licensed to practice law in your area. You can use this directory to find a criminal defense attorney with experience challenging probable cause in cases similar to yours.
Once you have the names of a few attorneys from the directory, see if they have their own websites that you can visit. There, you can learn more about each attorney's background and the focus of their practice.
Check each attorney's reputation by searching online for client reviews. Your state or local bar association also typically has information regarding whether the attorney has been subject to discipline for violations of professional rules.
Interview at least three attorneys. If time and circumstances permit, try to talk to several attorneys before you choose one, so you can compare and contrast to find the best attorney to meet your needs and budget.
Typically attorneys will give a free initial consultation. Make sure you provide any requested information to the attorneys you're meeting before the consultation.
Prepare a list of questions to ask the attorney regarding your case. Since you want to challenge probable cause, ask each attorney about their experience filing motions to dismiss for lack of probable cause, as well as their success rate.
If you have financial concerns regarding your ability to pay attorney's fees, bring this up during the initial consultation. Criminal defense attorneys are accustomed to clients with limited funds, and they may be willing to work with you regarding payment arrangements, but they need to know about financial issues up front.
Make your final choice. Once you've talked to a few attorneys, you're ready to choose the one you think will be your strongest defender and advocate. While it's important to choose an attorney with experience, don't be afraid to go with your gut if there's one attorney you feel good about.
Take fees into consideration, but try to avoid making your decision based solely on financial issues. While a private criminal defense attorney can be costly, time in jail potentially would have a greater negative impact on your life.
Meet with your chosen attorney as soon as possible to get a retainer agreement in writing. Your attorney typically will go over the agreement with you to make sure you understand it before you sign it.
Once you've retained your attorney, he or she will discuss defense strategy with you and plan the next steps you'll be taking to file a motion to dismiss the charges.
Investigate the circumstances of the warrant. While the Fourth Amendment doesn't specifically define probable cause, the circumstances set forth in the warrant must show that the information is reliable enough to constitute a search or arrest.
Keep in mind that the information used to justify a warrant does not have to prove beyond a reasonable doubt that a crime has taken place.
The standard for probable cause is quite a bit lower than that, requiring only that the police officer have an objectively reasonable suspicion of criminal activity.
The information to justify a warrant doesn't even have to be admissible at trial. The magistrate or judge who approves a warrant can rely on hearsay or other evidence that could never be admitted in court to prove your guilt.
However, the information must seem reliable, and must be based on named sources that would have some reason to know what they told the officer.
Draft your motion. To challenge probable cause, your attorney must draft a motion to dismiss the case, which asks the judge to dismiss the charges the prosecutor has brought against you because your Fourth Amendment rights were violated during the process of search or arrest.
The motion includes basic reasons you believe the warrant was not supported by sufficient probable cause.
For example, if a warrant is based on an affidavit from a police officer stating that the officer believes you are using a shed in your backyard to produce methamphetamine, but does not name any source for that information, your motion to dismiss would argue that the information was too vague to constitute probable cause.
File your motion. After the motion to dismiss is complete, it must be filed with the court and delivered to the prosecuting attorney, who typically will file a response to the motion before the pretrial hearing on the motion is scheduled.
When your motion is filed, the court will schedule the hearing. Generally the hearing must be scheduled within a couple of weeks, so there isn't much time for extensive preparation.
If you are still in custody and the prosecutor requests more time or the court can't schedule the hearing within a couple of weeks, your attorney may move to have the court release you pending the outcome of the probable cause hearing.
Attend the pretrial hearing. The judge will hold a pretrial hearing on the motion, which essentially screens the charges for validity before a trial is scheduled. You are allowed to present evidence at this hearing to support your arguments.
At the hearing, the court will determine whether probable cause existed to believe the charged offense was committed and whether probable cause existed to believe you committed the offense.
The standard rules for the introduction of evidence apply, which means some of the evidence on which the officer relied in the affidavit supporting the warrant may not be allowed.
You will have the opportunity to have witnesses testify on your behalf, and to introduce evidence that supports your argument that the warrant was based on insufficient probable cause.
However, in most cases neither you nor other witnesses will be called to testify at a probable cause hearing, particularly if your attorney believes testimony could harm your chances at trial.
The prosecutor also will call witnesses, typically the police officer and possibly any informants upon whom the officer relied when requesting the warrant.
You (through your attorney) have the right to cross-examine any witnesses called by the prosecution by asking them questions related to their knowledge and the facts to which they testified.
Wait for the judge's ruling. If the judge rules in your favor that the warrant was not supported by probable cause, the charges against you will be dismissed. The prosecutor cannot appeal this ruling. However, they typically can refile charges against you after establishing probable cause.
If the judge denies your motion, there typically isn't an option for you to appeal that ruling. Your case will proceed to trial, and the issue may come up at trial or in subsequent post-conviction appeals.
If you were charged with a misdemeanor offense, the judge typically will go ahead and set your case for trial if your motion to dismiss is denied.
Typically the judge will review your bail and pretrial release conditions if he or she has denied your motion to dismiss. For example, if your attorney got you released on your own recognizance pending the outcome of the probable cause hearing, the judge may order you to post bail for continued release.
Keep in mind that judges do not often dismiss criminal charges for lack of probable cause. However, the probable cause hearing gives you and your attorney a chance to learn more about the prosecution's case against you and expose possible weaknesses that can be exploited at trial.
How serious is it if a prosecutor files a statement of facts that was later proven to be unverified?
When a prosecutor knowingly represents an incorrect statement to support his client, the competency of the prosecutor can be challenged.
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