Written by attorney Garry Lee Potts

Anatomy of a Florida Arrest - Insufficient Probable Cause

What Happens If They Don't Have Enough Evidence to Arrest Me?

Assuming that the police have conducted their investigation and they still don't believe they have probable cause to arrest anyone, they can follow one of the following procedures. One, they can close their file and forget about it. Or, they can leave the file open hoping to collect more evidence later. Finally, they can refer the case to the prosecutor by scheduling what is called in Pinellas and Pasco Counties a "non-arrest investigation".

It's a Little Like the Game of 'Hot Potato"

A non-arrest investigation simply means that the police are punting the case to the State Attorney's Office for them to decide if there is enough evidence to warrant an arrest and prosecution. The prosecutors will examine the evidence, often speaking to witnesses themselves, and eventually decide whether to drop the case or to proceed by obtaining an arrest warrant. This is a crucial point in any criminal investigation where a good experienced criminal defense attorney can help greatly. The time period during a State Attorney investigation, before the prosecution has made up their minds on whether to charge the crime or not is the easiest time to attempt to convince them to drop the case. Once the prosecution has decided to proceed with filing a charge with the court, it becomes their decision and they often feel bound to stick with it rather than admit that they made an error. Once the prosecutor files the charge, the train has left the station and its much harder to stop it.

Communication is a Good Thing - But Don't Give Up Your Right to Remain Silent

Prosecutors tend to be a little more objective about the facts of a criminal case than police often are. This is true for two reasons; first, prosecutors are trained attorneys and usually (not always!) understand the laws, the rules and our Constitutional protections better than non-attorney law enforcement officers. Mainly, though, it is because the prosecutor is the one who ultimately gets left holding the bag if a weak case is charged. It is the prosecutor who must go to court and argue the case and most prosecutors really don't like to lose in court. In many cases the prosecutor's office will simply drop, or "no-file" the case and move on to bigger and better things.

So, during a non-arrest investigation an attorney who is familiar with the local prosecutor's office and its practices can be very effective by speaking to the prosecutor handling your case and relaying any defenses, information, even excuses which you may have in an attempt to convince the prosecutor to either drop the case or at least file a lesser criminal charge than was referred by the police.

You should not attempt to speak to the prosecutor yourself. Most prosecutors are reluctant to speak to suspects outside of court and off the record. Even if the prosecutor is willing to speak with you, you must assume that you are being recorded or listened to by others on speaker phone and remember that everything you say can and will be used against you in court some day.

It Ain't Over 'Til Its Over

Whether the police or the prosecutor's office decides to drop your case, remember that if you have not been arrested yet your case can be re-opened at anytime before the Statute of Limitations run out. Statutes of Limitation vary in Florida depending upon the type of crime; some crimes may have very long limitations periods or may never expire. The shortest Statute of Limitation in Florida is for a second degree misdemeanor and is for a period of one year.

However, if the prosecutor decides that they have enough evidence to allow a jury or judge to convict, they will often choose to file an Information (called an Indictment in Grand Jury cases) and proceed with prosecution. Next article will discuss what happens then.

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