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If My Arrest Is Illegal, Can I Run?

By Christopher Coble, Esq. on July 28, 2015 | Last updated on March 21, 2019

[DISCLAIMER: This article is not legal advice. For your safety, if you are being detained by police, you should follow all officer instructions.]

An interesting legal quirk came to our attention the other day from this legal summary: "It's not a criminal attempt to escape where the arrest was unlawful." So, if an officer's reason for arresting you is invalid or illegal, you can't be charged with trying to flee that arrest.

Given the current climate of police shootings, especially against those fleeing from police, this seems like dangerous advice. So let's take a closer look at where this rule comes from and what it means for criminal suspects and defendants.

Gestewitz Gets Away (Eventually)

The note comes from a Florida case, Gestewitz v. State, where police responded to an altercation between a bartender and a patron, Gestewitz. One officer detained Gestewitz outside the bar while the other was inside writing up a trespass warning. During the detention, the officer noticed a plastic baggie in Gestewitz's pocket, which he admitted was a "Xanax bar." The officer attempted to arrest Gestewitz; he fled but was quickly caught.

Gestewitz appealed his conviction for attempted escape, and the court ruled that officers didn't need to detain Gestewitz. And because his initial detention was unlawful, everything that followed, including his arrest, was unlawful, too: "It necessarily follows that because the discovery of the Xanax bar led to the arrest, which was unlawful, there could be no escape, as it stemmed from that unlawful arrest." All of his convictions, including attempt to escape, were reversed.

Why You Still Shouldn't Run From the Cops

Gestewitz's case is based on a little-known legal theory called "Fruit of the Poisonous Tree," under which illegally obtained evidence can't be used at trial. 

Here's the problem for those wondering if they should run from the cops: whether the arrest is lawful is a legal determination made by judges later down the line. There's almost no way for a person under arrest to know whether the arrest is unlawful at the time.

To clarify, the court wasn't saying that Gestewitz was allowed to run from officers that night, but that he couldn't be charged with or convicted of a crime for doing so. Even though he ended up getting off, it was a bad idea for Gestewitz to flee from the police. His charges would likely have been dismissed anyway, and he risked serious injury. 

In the end, it wasn't his attempted escape that set him free, but an experienced criminal defense attorney that helped his case.

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