The Idaho Constitution prohibits a police officer from making a warrantless arrest for a misdemeanor which did not happen in the officer’s presence. That is the recent opinion of the Idaho Supreme Court in State v. Clarke.

Peter O’Donald Clarke was arrested and convicted for a misdemeanor battery charge, even though the battery occurred outside an officer’s presence. Idaho law allowed the arrest, but the Court determined that the Idaho Constitution did not. Relying on common law in other states prior to the Idaho Constitutional Convention, the Court found that because the offense occurred outside of the presence of an officer, the warrantless arrest for a misdemeanor was unconstitutional.

Sean Coletti

Sean Coletti

The Court recognized the significance of its decision: “Domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community.” Idaho law permitted officers with probable cause to intervene in domestic violence situations with an arrest “even though they had not personally observed the commission of a crime, thereby diffusing potentially violent circumstances.” Nevertheless, the Court held that “the extremely powerful policy considerations which support [Idaho Code] must yield to the requirements of the Idaho Constitution.” The decision has left Idaho law enforcement in a difficult situation.

But just for the sake of argument, Clarke didn’t need to end this way.

As the Court noted, common law (upon which the Court heavily relied) may help inform an interpretation of the Idaho Constitution but it should not be elevated to constitutional status. Article I, section 17 is practically identical to the Fourth Amendment to the U.S. Constitution. It states, “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit…” The plain language of this provision doesn’t prohibit warrantless arrests for misdemeanors committed out of the presence of an officer.

With no prohibition in its language, virtually no difference between the Idaho and federal constitutional provisions, and no debate from its drafters in the Idaho Constitutional Convention — is it unreasonable to believe that the Idaho Legislature intended for Article I, section 17 to have the same interpretation as the Fourth Amendment to the U.S. Constitution?

This question is important because the U.S. Supreme Court has refused to find an “in the presence” requirement in the Fourth Amendment. The overwhelming consensus of the federal circuit courts has likewise determined that the Fourth Amendment does not require that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest.

It may also be helpful to consider the reason for the “in the presence” rule. This rule represented an early 19th century “social balance” which largely does not exist today. Appalling conditions in police departments and jails — and the resulting need to protect the individual from mistaken or arbitrary arrest — outweighed the harm to society arising from most misdemeanors. That social balance has shifted in the 20th and 21st centuries as these conditions have improved.

If the Idaho Supreme Court in Clarke had given greater weight to interpretation of the same provision in the U.S. Constitution, as opposed to common law, and had also considered the historical, now outdated reasons for the common law “in the presence” rule of misdemeanor arrest, the outcome may have been different.

Our peace officers need the tools to deal with misdemeanor domestic battery, which is usually committed outside of the officer’s presence. Whether the Constitution must now be amended to bring back this tool is a question worth asking.

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