{"id":5070,"date":"2011-01-09T21:32:35","date_gmt":"2011-01-10T00:32:11","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-01-09T21:32:11","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5070","title":{"rendered":"OH2: Arrest without warrant where PC developed two months earlier led to suppression of search incident and subsequent search warrant for house"},"content":{"rendered":"

The controlled buy from the defendant two months earlier was probable cause and there was no excuse for not having obtained an arrest warrant for his arrest. Therefore, the search incident to his arrest was void, and the exclusionary rule applied. The product of the search incident was used to get a search warrant, and that too was void as derivative evidence. State v. Anderson<\/a>, 2011 Ohio 22, 2011 Ohio App. LEXIS 14 (2d Dist. January 7, 2011):<\/p>\n

[*P22] The State bears the burden of proving that it was impracticable to obtain an arrest warrant prior to the defendant\u2019s arrest. VanNoy, at P25, citing Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218. In this case, the State offered no explanation for the lapse of two months from the time of the second controlled buy until Anderson\u2019s arrest. Nor did the State prove that it was impracticable to have obtained an arrest warrant during that time. Therefore, Anderson\u2019s warrantless arrest was not lawful. Anderson\u2019s warrantless arrest not having been lawful, any evidence obtained as a result of that unlawful arrest was tainted and should have been suppressed as \u201cfruit of the poisonous tree.\u201d Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.<\/p>\n

. . .<\/p>\n

[*P24] The narcotics found in Anderson\u2019s pocket should have been suppressed because they were found as a direct result of his unlawful arrest. Similarly, the incriminating statements regarding the presence of additional narcotics in his home were made as a direct result of the unlawful arrest and should have been suppressed. See, e.g., State v. Cooper, Montgomery App. No. 20845, 2005 Ohio 5781, P28, citing New York v. Harris (1990), 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13. Finally, the search warrant for Anderson\u2019s home having been issued primarily based upon the illegally seized narcotics from Anderson\u2019s pocket and his incriminating statements resulting therefrom, the narcotics found in his home also should have been suppressed.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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