Kang

ORDER DENYING DEFENDANT KANG’S MOTION TO DISMISS

On May 30, 2007, FBI agents arrested Edward Kang without a warrant on a charge of conspiring to commit bank robbery. On May 31, FBI Special Agent Brian Guy swore out a criminal complaint before Magistrate Judge Laporte, who found probable cause for the arrest. At his initial appearance that day, Judge La-porte scheduled a hearing on the government’s motion to detain Mr. Kang before the magistrate judge presiding over the criminal calendar on June 7, 2007. Mr. Kang then noticed a motion to dismiss the complaint for lack of probable cause for that same date.

After reviewing the motion, I asked counsel for both parties to submit authority on the issue of whether defendant may pursue such a motion prior to preliminary hearing. Defendant relied only on Federal Rule of Criminal Procedure 12(b)(3)(A), which authorizes pretrial motions concerning “defect[s] in instituting the prosecution,” and U.S. v. Fernandez-Guzman, 577 F.2d 1093 (7th Cir.1978). Neither side produced any authority directly on point, and my own research disclosed only one case arguably on point.

Having considered the matter and heard argument, I conclude for a number…