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MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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what elements would I have to prove to be reasonally successful at wining a motion to dismiss for police misconduct?

Hello and thank you for your question.

The motion to dismiss would be based on the Florida constitution guarantee of due process. So that I can provide you with the most useful and relevant response to your question, please let me know the specific police misconduct that is at issue.

Thank you.
Customer: replied 3 years ago.

we found out that detectives have left many things out of discovary and lieing on the police reports to make it seem that this vic identified me threw video at store and description, and tag number to get a warrant....none of this was true and came to light during depos and discovary....they even left out the detectives who first responded to the call because the police gave her my name she was able to look me up on police website BEFORE she picked me out of a line up.....and she admitted this at depos....not to mention this person didn't even report the robbery until 4 weeks later

In order to prevail on a motion to dismiss based on the police misconduct that you describe, you would need to show that the conduct violates the sense of justice and fairness in court proceedings and that the appropriate remedy to deter the outrageous law enforcement conduct is to bar the defendant's prosecution.

There are no set of factors or elements to prove, but rather the due process argument is based on a general principle of law. In State v. Williams, 623 So.2d. 462 (Fla. 1993), the Florida Supreme Court stated:

Due process of law is a summarized constitutional guarantee of respect for personal rights which are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Due process of law imposes upon a court the responsibility to conduct "an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice." Malinski v. New York, 324 U.S. 401, 416-417 (1945). Defining the limits of due process is difficult because "`due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951)(Frankfurter, J., concurring). Rather, due process is a general principle of law that prohibits the government from obtaining convictions "brought about by methods that offend `a sense of justice.'" Rochin v. California, 342 U.S. 165, 173 (1952).

You may want to read the case of State v. Williams, 623 So.2d. 462 (Fla. 1993) to get an idea of the concept of due process as it applies in this context. The case can be found here,10

In State v. Glosson, 462 So.2d 1082 (Fla. 1985), the Supreme Court of Florida developed its own due process analysis in the context of police misconduct based on article I, section 9 of the Florida Constitution. That case and the case of State v. Williams, 623 So.2d 462 (Fla. 1993) describe how the state constitutional guarantee of due process can be used to overturn criminal convictions as a check against outrageous police conduct.

In State v. Williams, the Florida Supreme Court cited two cases from other states to illustrate when dismissal is appropriate for violation of due process based on police misconduct. State v. Hohensee, 650 S.W.2d 268 (Mo. Ct. App. 1982)(reversing a predisposed defendant's conviction for burglary because the police violated state due process rights in sponsoring and operating a burglary in which the defendant acted as a lookout); People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714 (1978)(reversing a predisposed defendant's conviction for drug sales because police misconduct and trickery violated state due process rights). The Florida Supreme Court in Glosson, at 1085, agreed that "governmental misconduct which violates the constitutional due process right of a defendant, regardless of that defendant's predisposition, requires the dismissal of criminal charges." And in the Williams case, the court granted relief where the police manufactured the crack cocaine which they sold in a sting operation.

Please feel free to ask any follow up questions.
Customer: replied 3 years ago.

in your experences as a lawyer are there a lot of cases where you can actually prove the police manufacture evidence and they aren't accountable and only get a pat on the back,,,,, I only ask cuz if the cops can lie and not get introuble im prob fighting a loose battle

In my experience there aren't alot of cases where it has been proved that police lied or manufactured evidence. However, in those cases where there is such evidence, the police misconduct has been taken very seriously. There have been instances where police have lied to obtain a search warrant and, as a result, evidence suppressed even though contraband was found.

You seem to have a valid argument for dismissal in your case where the police did not follow procedure, then lied about it, and back-dated reports and the like. However, as mentioned in the cases above, alot depends on the particular facts and the totality of the circumstances of the case, so it's difficult to estimate your chances of success. Dismissal of a case based on police misconduct is still considered an extraordinary remedy and the judge may impose a lesser sanction if there is one available that would have the same deterrant effect.

Also, often an attorney might file a Motion to Dismiss such as this to use as leverage in getting the prosecutor to dismiss the charges or offer a better plea deal.

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