3.7 Consequences of Illegal Arrest

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.7 CONSEQUENCES OF ILLEGAL ARREST

3.701 In General. Standing alone, an illegal arrest (for example, an arrest upon less than probable cause) does not invalidate a criminal conviction. ¹²¹ The Supreme Court has long held that the power of a court to try a person for a crime is not impaired by the fact that he or she has been brought within the court's jurisdiction by a "forcible abduction." ¹²² An illegally arrested

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defendant is not a suppressible "fruit" and the fact that he or she was illegally arrested cannot deprive the government of the opportunity to prove his or her guilt through evidence unrelated to any illegal detention. ¹²³

3.702 Derivative Evidence (Fruit of the Poisonous Tree).

A. In General. An illegal arrest may, however, serve as the predicate for the discovery of incriminating evidence. The evidence obtained as a result of the illegal arrest may be tangible or intangible, including confessions or eyewitness identification testimony, and the admissibility of the evidence is determined by the application of the familiar "fruit-of-the-poisonous-tree" doctrine.

The most common "derivative" (or "fruit-of-the-poisonous-tree") evidence problem arises in the context of search incident to arrest. If the arrest itself is illegal, any evidence discovered in the course of a search incident to arrest should be suppressed. ¹²⁴ The derivative evidence principle, however, applies only when the arrest is constitutionally invalid. An arrest in violation of a statutory provision does not require suppression of evidence. ¹²⁵ However, if counsel believes an arrest for driving under the influence is not valid, it would be proper to move the court to suppress any evidence of the defendant's refusal to submit to a breath test. ¹²⁶

Most commonly, the question of whether the arrest was lawful turns on whether the police had lawful probable cause for the arrest. However, the legality of an arrest also may turn on whether an arrest warrant was obtained ¹²⁷ or on whether the officer making the arrest otherwise possessed lawful authority. In one case, however, the Supreme Court held that evidence seized pursuant to a search incident to an arrest upon probable cause for a presumptively valid local ordinance should not be suppressed when the ordinance is later held unconstitutional. ¹²⁸ Similarly, the Court has held that a seizure by an officer based on a reasonable mistake of law, such

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as an officer's reasonable misunderstanding of a local ordinance, does not invalidate the seizure or warrant suppression of evidence obtained as a result of it. ¹²⁹

If an individual does not challenge the offense for which he is charged (such as intoxicated in public) or forfeits collateral, he cannot contend that the same facts amounted to less than probable cause to arrest him in a subsequent charge arising out of that arrest. ¹³⁰

B. Eyewitness Identification. The Supreme Court has refused to suppress the in-court eyewitness testimony of a robbery victim that arguably was the product, at least in part, of an illegal arrest of the accused. ¹³¹ The victim had given the police a full description of her assailant. Several days later, the accused, who matched the description, was taken...