A Volusia County public defender says the man accused of murdering missing mother, Yessenia Toledo, should never have been arrested on the domestic violence charges in the first place.
Public defender for the Seventh Judicial Court James Purdy said Lake Mary Police did not have the right to arrest Luis Toledo.
Purdy said it’s a mistake that could now have an effect on evidence admitted in court.
"This is an amazing faux paux. I mean when I look at it, I scratch my head as soon as I saw it,” said Purdy.
Purdy said he saw the problem in Toledo's arrest report on Oct. 24 at Yessenia Suarez's Deltona home.
He said Volusia County Sheriff's Office deputies detained Toledo after he allegedly slapped Suarez at her Lake Mary office the previous day.
They waited for Lake Mary Police to arrive, make the arrest and transfer him to the Volusia County jail.
But it was illegal, Purdy said, because Lake Mary Police have no jurisdiction in Volusia County, and the only authority they had at that time would have been to make the arrest was as private citizens.
"Under Florida law, which follows the common law, a private citizen can only make an arrest for a misdemeanor if it occurs in their presence. So the arrest itself was an illegal arrest," he said.
According to Purdy, Toledo's detention was also illegal because the arrest was illegal.
Toledo confessed to killing Suarez, investigators said, and told them he believed the children were dead, implicating another unidentified person.
But all of that information could have possibly been illegally obtained.
Purdy said the Public Defender's Office will file a motion to suppress evidence.
However, he admits Toledo will not be freed because he was re-arrested and charged with second-degree murder in the death of Suarez.
Suarez's stepfather, Ruben Perez, knows about the presumed illegal arrest, but is confident Toledo will remain behind bars.
"No, I can't see that. As you guys know he's confessed to murdering my daughter. So how can you release something like that?” he said.
Toledo tried killing himself while he was being questioned on Saturday, Oct. 26.
Purdy said that also happened when he was being illegally detained.
The Volusia County Sheriff's Office said they are focused on their investigation and trying to recover the bodies and any legal issues would be "resolved by the courts."
Requests for comments from the Lake Mary Police Department and State Attorney's Office have not yet been returned.
Toledo is being held without bond. He is scheduled for arraignment for the murder charge on Nov. 21.
The search for Suarez and her two children continued Sunday with teams looking through a landfill in Port Orange.