In building a state or federal case is a violation of the constitutional or Miranda rights a means or grounds of dismissal

Asked about 2 years ago - Davenport, IA

for example them throwing the case out because the house was raided 2 within 24 hours is that enough ground for them to through the case out

Attorney answers (3)

  1. Joshua Sabert Lowther

    Pro

    Contributor Level 17

    Answered . The fact that a house was raided twice in one day may or may not provide a basis for dismissal of charges, depending upon the basis of each raid. However, if a person is in custody, and makes an incriminating statement to a law enforcement agent without the agent's having advised the person of his or he Miranda warnings (and having obtained a waiver of the person's right to remain silent), any incriminating statement may be excluded from evidence. The result is the same if the statement was not freely and voluntarily given, regardless of whether the person was "Mirandized." The exclusion of a statement does not result in the dismissal of a case automatically; the Government may or may not have enough other "untainted" evidence to proceed with the prosecution.

    Joshua Sabert Lowther, Esq.
    NATIONAL FEDERAL DEFENSE GROUP
    jlowther@nationalfderaldefense.com
    http://www.NationalFederalDefense.com
    866.380.1782

  2. Joshua Sachs

    Contributor Level 19

    Answered . A Miranda violation is not grounds for dismissal. In a case where the prosecution has no proof without the defendant's confession, a successful motion to suppress the confession for failure to comply with Miranda might lead to a decision by the prosecutor not to pursue the case.

    I do not understand your question about the raids. It is difficult to think why two raids in twenty-four hours would be grounds for dismissal, but if either raid was for some reason improper there would be a question of what evidence would have to be suppressed. If the case for the prosecution was heavily dependent on suppressed evidence then, again, the prosecutor might be unable to pursue the case.

  3. Robert David Richman

    Contributor Level 16

    Answered . Constitutional violations that occur during the investigation may give rise to grounds to exclude the evidence that was collected as a result. Thus, if the search was illegal, the evidence seized during the search could be excluded. If the defendant was questioned while in custody without Miranda warnings, the statement could be excluded. Either way, that would only lead to dismissal if the prosecutor decided there was insufficient evidence to prosecute without that evidence. The decision whether to dismiss is up to the prosecutor. There is nothing wrong per se with doing two searches on the same day, depending on the circumstances. In addition, there is no requirement that Miranda warnings be given unless the defendant is questioned in custody. You should discuss these issues with your attorney.

    This answer is provided for educational purposes only and is not intended as the practice of law in any... more

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