Idaho Supreme Court Decision Limits Misdemeanor Arrests Without a Warrant

Police in Idaho can no longer arrest people for misdemeanor offenses which they did they did not witness unless they obtain an arrest warrant. This change upended standard operating procedure for law enforcement agencies throughout Idaho. Why did this change happen? The Idaho Supreme Court issued a decision in State v. Clarke[1] in June 2019, in which the court held that Article l, Section 17 of the Idaho Constitution prohibits the police from arresting a person for a completed misdemeanor without taking some additional steps. What is a completed misdemeanor? This simply means that the alleged criminal act ended before police arrived on scene, so the police did not personally witness any criminal act. This prohibition applies even if the police have enough evidence from other sources to establish probable cause to arrest a person.

What are the real-world implications of the Clarke decision? It has been asserted that people driving under the influence or people who are perpetrating acts of domestic violence will simply be released by police and thereby pose a danger to the community. This is not the case. There are procedures already in place that allow police to obtain search warrants telephonically from a magistrate judge and a prosecutor who are on-call. The standardized procedure to obtain telephonic warrants came be commonplace after the United States Supreme Court addressed the issue of a warrantless blood draw in the context of a driving under the influence investigation.[2] Post-Clarke, this means an officer simply has to pick up the phone and make a call to the on-duty judge and prosecutor. The officer relays the information the officer has and requests that the judge issue an arrest warrant. If the judge determines there is probable cause to arrest a person, then the judge can issue an arrest warrant. That warrant can be transmitted to law enforcement virtually simultaneously.

Law enforcement agencies often have pro-arrest policies that require an arrest be made when a person is accused of domestic violence or driving under the influence. If an officer didn’t witness the conduct personally, it is important to have a judge determine if there really is probable cause to arrest the person accused of the crime. In my experience, almost without exception, more than one officer ends up on scene. One officer could make the phone call to the magistrate and prosecutor while the investigation continues.

Many law enforcement agencies have pro-arrest policies with respect to domestic violence and driving under the influence. Certainly, driving under the influence or acts of domestic violence should be investigated by law enforcement; however, there are instances when the criminal judicial system is utilized as a sword rather than a shield. For example, one person may accuse their significant other/parent of a child of horrific conduct in a divorce or custody dispute. Officers are not often present for the conduct which one person is alleging the other committed. Police are tasked with enforcing the individual policies of their agencies. As a result of the Clarke decision, judicial oversight is an important factor that could prevent innocent people from being arrested or charged with a crime.

The final outcome of the Clarke decision is still unknown. The Idaho Legislature is addressing the Clarke decision during the 2020 legislative session. House Bill 467[3], sponsored by Representative Bryan Zollinger (R- Idaho Falls), proposes that certain portions of Idaho Code § 19-603 be removed to comport with the Idaho Supreme Court’s decision in Clarke. However, Senate Joint Resolution No. 103[4] seeks to amend Article I, § 17 of the Idaho Constitution to allow police to arrest a person without a warrant when officers have probable cause, even if the offense was not committed in the officer’s presence.

[1] 165 Idaho 393, 446 P.3d 451 (2019). A copy of the Idaho Supreme Court’s decision can be accessed at https://isc.idaho.gov/files/45062.pdf.

[2] Missouri v. McNeely, 569 U.S. 141 (2013).

[3] Full bill text  can be accessed at https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/H0467.pdf.

[4] Full text of the proposed Senate Joint Resolution can be accessed at https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/SJR103.pdf.