3.7 CONSEQUENCES OF ILLEGAL ARREST

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 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. ⁴⁹⁶ 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." ⁴⁹⁷ An illegally arrested 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. ⁴⁹⁸

3.702 Derivative Evidence (Fruit of the Poisonous Tree).

A. In General.

An illegal arrest may 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. ⁴⁹⁹ 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. ⁵⁰⁰ 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. ⁵⁰¹

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 ⁵⁰² 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. ⁵⁰³ Similarly, the Court has held that a seizure by an officer based on a reasonable mistake of law, such 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. ⁵⁰⁴ But where a statute is clear and not a recent change in law, an officer's ignorance of the law is unreasonable, and an unlawful seizure arising from such a mistake of law will result in suppression. ⁵⁰⁵

If an individual does not challenge the offense for which he or she is charged (such as intoxicated in public) or forfeits collateral, that individual cannot contend that the same facts amounted to less than probable cause to arrest him or her in a subsequent charge arising out of that arrest. ⁵⁰⁶

B. Eyewitness Identification.

The United States 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. ⁵⁰⁷ The victim had given the police a full description of her assailant. Several days later, the accused, who matched the description, was taken into custody illegally (there was no probable cause), photographed, and released. The victim identified the accused's photograph, and he was again taken into custody. A lineup was held, and the victim again identified the accused. The trial court suppressed the pretrial photo and lineup identifications as the "fruit" of the defendant's initial illegal arrest but did allow the witness to make an in-court identification. The Supreme Court affirmed on the ground that the victim's presence in the courtroom was not the product of the defendant's illegal arrest, and the victim's ability to make the in-court identification was not tainted by any police misconduct. The Court also noted that the accused's presence at trial, a necessary condition for the in-court identification, was not a suppressible fruit of the police misconduct since an illegal arrest, without more, has never been viewed as a bar to subsequent prosecution. Finally, an apparent majority of the Court rejected the contention that a defendant's face or likeness at trial could ever be the subject of a suppression motion following an illegal arrest.

On the other hand, the Virginia Supreme Court has held that when the police learn the identity of the suspect as the result of an illegal detention and the suspect's identity is essential to the prosecution (such as when the suspect is driving on a revoked driver's permit), the illegal detention requires suppression of all evidence gained. ⁵⁰⁸ In Zimmerman v. Commonwealth, ⁵⁰⁹ the defendant had been illegally stopped, resulting in the officer's identifying her as a habitual offender. The court distinguished Crews on the grounds that the illegal seizure in Zimmerman not only allowed the officer to identify the defendant but also her connection to illegal activity (by running a warrant check)...