William & Mary Bill of Rights Journal


Katie Carroll


When the government decides to stop prosecuting a case, it files a nolle prosequi with the court. Nolle prosequis are slightly different from motions to dismiss. Unlike a motion to dismiss with prejudice, a prosecutor may later reindict a defendant with the same crime without a double jeopardy issue arising after dropping the same case through nolle prosequi. Furthermore, many states do not require judicial approval for a nolle prosequi. Therefore, prosecutors can gain a number of advantages by using nolle prosequi, like avoiding speedy trial deadlines or having a second chance to win important evidentiary hearings.

The advantages of nolle prosequi, however, can also extend to the police. Because police will need to rearrest the defendant following a reindictment, they can conduct a new search of the defendant at the time of the arrest. Since the defendant is being rearrested, the police have an arrest warrant. This makes any search substantially more likely to be found constitutional because the arrest warrant gives the police probable cause for any search incident to arrest; the police therefore do not need a reasonable suspicion to search the defendant normally required for a traditional stop-and-frisk search. Furthermore, searches incident to arrest are substantially more invasive than stop-and-frisk searches.

Allowing prosecutors to file motions for nolle prosequi can create an evidentiary loophole where a defendant is charged with a separate crime that was only discovered through the second arrest, that the defendant could never be convicted of initially. For example, a defendant could initially be arrested for a crime that is only supported by inadmissible evidence. After the defendant wins a motion to suppress that inadmissible evidence, the prosecutor drops the case, and later recharges the defendant with the same crime. When the police go to rearrest the defendant, they find evidence of a new, separate crime while searching through his possessions. The defendant can now be charged with two crimes. Although the initial crime, which the defendant was rearrested for, remains solely supported by inadmissible evidence, the new crime is not. Because the evidence supporting the second crime was found through a search following a valid arrest warrant, the search is also valid. Therefore, the evidence supporting the second crime was legally obtained and can be used to prosecute the defendant. Furthermore, since the defendant is substantially likely to be convicted of the second crime, the prosecutor can now drop the original case because the evidence supporting the first crime is likely to be suppressed again.

It is difficult to determine how frequently this loophole is being used. These types of searches are not typically appealed because there is no legal argument to support an appeal. However, reindictments are used frequently by the criminal justice system.

Although nolle prosequi creates a plethora of prosecutorial advantages, as well as granting police another search via rearrest, little has been done to restrict it. Most jurisdictions have created a rule requiring the prosecutor to get judicial approval to drop a case via nolle prosequi; however, this addresses the problem at the wrong stage. Courts are less likely to be critical of prosecutors when charges are being dropped because the government does not violate a defendant’s rights by dropping charges and dropping charges lightens the burden of a busy docket. Instead, the courts should be more critical of rearresting a defendant.

This Note examines the problems inherent in the current nolle prosequi standards. First, it explains why nolle prosequi was created, as well as its advantages and disadvantages. Next, it considers the scope of police searches and how they are expanded through searches incident to arrest. This Note then examines the current safeguards put in place to limit prosecutorial misconduct and why they fail. Finally, it proposes some possible solutions to correct the inherent problems within nolle prosequi.