Evidence obtained as a result of an unlawful arrest is generally not admissible at trial. If evidence was obtained as a result of a defendant’s arrest, and there is reason to challenge the legality of that arrest, this is an issue which should be determined by the trial court before the trial of the case. For an arrest to be legal, there must exist, at the time of the arrest, probable cause to believe the defendant has committed a crime for which a person may be arrested. In the recent case of State v. Kennedy, M2012-00755-R10-CD (Tenn.Crim.App. 6-28-13), a trial court had excluded evidence obtained as a result of the defendant’s arrest for second offense driving under the influence (DUI). However, on an interlocutory appeal by the state, the Tennessee Court of Criminal Appeals reversed the trial court ruling due to the trial court applying an incorrect legal standard, and remanded for reconsideration of whether there was probable cause for arrest.

In the Kennedy case, the defendant had been stopped for speeding. The defendant admitted having visited a number of bars and consuming three to five beers. The defendant performed some field sobriety tests and was arrested. At an evidentiary suppression hearing, the trial court heard the testimony of the police officers involved in the arrest, and watched video of the defendant performing the field sobriety tests. After the hearing, the trial court filed an order suggesting that the trial court was considering the “severe consequences” of a second offense DUI and did not feel the evidence was strong enough to support the charge. The trial court did conclude there was reasonable suspicion for the initial stop due to speeding.

The Court of Criminal Appeals determined that the trial court incorrectly considered the consequences of the offense in determining whether there was probable cause. The consequences or seriousness of an offense is not a factor in determining whether there is probable cause for arrest.

It is unclear from the appellate opinion what specific evidence the defendant claimed was obtained as a result of the arrest. The defendant’s statements regarding bar hopping and consumption of three to five beers were obtained before the arrest. The field sobriety tests were performed before the arrest. As the defendant was charged with violation of implied consent, there was likely no blood alcohol content test done after arrest. So it is not clear from review of the opinion what incriminating evidence is subject to exclusion, even if the arrest is determined to be unlawful.

For more information on exclusion of evidence as a result of an unlawful arrest, contact The Lanzon Firm.