This summer the Idaho Supreme Court considered the circumstances in which a law enforcement officer may make an arrest for a misdemeanor not committed in his or her presence. State v. Clarke involved an arrest for misdemeanor battery reported by a woman in a park. She claimed Clarke had harassed her and grabbed her rear-end. Clarke admitted he had touched her but claimed it was consensual.

Under Idaho law, a misdemeanor usually requires the act to be witnessed by the officer making a warrantless arrest. There are certain misdemeanors (as described below) which state law permits a warrantless arrest even when not committed in the officer’s presence. Battery is one of those offenses.

The issue then before the Court was whether a warrantless arrest for a misdemeanor not committed in the presence of the officer violates constitutional protection against unreasonable seizures. An arrest is the seizure of a person.

Officers arrested Clarke based on the battery complaint and his confirmation that the act occurred. Then they searched his backpack “incident to arrest” and discovered illegal drugs and paraphernalia. The misdemeanor battery was suddenly the least of Clarke’s problems as he faced felony charges and potential prison time.

Clarke filed a motion to suppress (or exclude) the drugs and argued he had been unlawfully arrested under both federal and state constitutions. The District Court denied the motion to suppress and he was found guilty of felony and misdemeanor drug offenses at trial. The misdemeanor battery charge (which was the reason for the arrest and the search) was dismissed by the prosecutor before trial because there was not enough evidence to convict.

Idaho Constitution Article 1 Section 17 mimics the Fourth Amendment of the United States against unreasonable searches and seizures:

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, particularly describing the place to be searched and the person or thing to be seized.

The Court reasoned that this section has historically been interpreted with the statutory provisions for warrantless arrests under Idaho Code § 19-603, which allows an officer to make an arrest for a “public offense committed or attempted in his presence.”

In 1979, the Idaho legislature added a section to § 19-603 that allows an officer to make a warrantless arrest in certain circumstances. Specifically, Idaho law permits an arrest for misdemeanor assault, battery, domestic violence, and other violent and dangerous acts regardless of whether the officer had witnessed the conduct.

When courts interpret constitutions and statutes, they look at the intent of the framers and the common law practices and statutes existing at the time the constitution was written. Idaho’s Constitutional Convention took place in 1889. Idaho’s practice in 1889, like most other states in the Union, prohibited the warrantless arrest for misdemeanor conduct that occurred outside of the officer’s presence.

Clarke was correct, the officers had violated state and federal constitutional protections when he was arrested without a warrant, even though Idaho law seemingly permitted officers to do so.

Bad arrest means the drugs found in the backpack can’t be admitted at trial and the felony conviction goes away. The case was great for Clarke, but I don’t think it will likely change many outcomes in the long run. An officer can still detain you if someone says you committed a misdemeanor and then get an arrest warrant based on probable cause. How will he get probable cause? While detained you have the right to remain silent. Most folks though cannot actually remain silent. That interview can provide facts establishing probable cause and then it is just one call to that Magistrate Judge and the arrest warrant is on the way.

Or, an officer can simply give you a citation, summoning you to appear in court on the misdemeanor charge. By doing that, however, there is no search “incident to arrest.” Clarke may have avoided felony drug charges if officers had simply let him go without searching his backpack. I bet that before an officer offers to give you that citation, he (or she) first asks you to consent to a search of your person and property. If you refuse to consent, they will likely detain you and wait for the warrant.

Will the decision impose a greater burden on the police to thoroughly investigate before arresting? Maybe. But what kind of investigation would they have done in Clarke after he admitted touching the complaining party? He said “consensual.” She claimed harassment. There was not much else to investigate. I suspect that the real lesson in Clarke is not lost on the police – take your time and get the warrant. For defendants, make sure that if there is evidence obtained by a search, that search was lawful.

Deadly force.

The subject is frequently in the news and often becomes the subject of even local conversation. When a law enforcement officer uses deadly force against someone it amounts to a seizure of that person, and the Constitution prohibits unreasonable seizures. So the simple question posed in such a case is whether deadly force was reasonable under the circumstances of the case.

The Supreme Court in its 1989 Graham v. Conner decision said that whether the use of deadly force is reasonable “is not capable of precise definition or mechanical application.” The facts and circumstances of each case decide whether the use of force was reasonable.  So what is the basic rule for when an officer may use deadly force?

At common-law (the law that followed our forefathers from England), and the law in most of the states until Tennessee v. Garner was decided by the Supreme Court in 1985, an officer could kill a fleeing felon. Any fleeing felon. In Garner the Court limited the law, finding that “where a suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In that case, a police officer shot an unarmed burglar in the back of the head as he climbed a fence to escape. Reasonable? Not so said the Supremes.

I remember reading a news article about an officer who had shot and killed a man at the scene of a domestic violence call. He would not be charged with any crime, meaning that his actions were deemed reasonable by the prosecutor. The officer’s body camera video shows the exchange. The deceased was carrying a weapon that the officer saw, and then ordered him to drop. He did not drop the gun. Shots were fired and there was shouting and it seemed impossible to determine without more exactly what happened.

“And it was dark” (as my pal JD would say). Darkness adds to the confusion in such cases. The officer was trained in the use of his weapon and it may be too easy to second guess his or her actions, but in the video, the deceased had a gun. That gun represents the ultimate threat to the officer’s safety as it would to yours or mine. In the dark, when ordered to drop his weapon he refused and the officer must have then believed that he would fire that gun. That seems like a reasonable conclusion to me and a jury would probably find that the policeman acted reasonably to protect himself and others from the man with the gun.

Look – wouldn’t we all want a cop to protect us from a man with a gun who refused to put it down?

The Garner decision focuses our attention on whether suspects pose an ongoing danger, regardless of whether they are threatening anyone in a specific way. Consider what the Court said:

“When the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”


In rural Idaho, officers killed Jack Yantis, a rancher who had been called to put down a bull that had been struck by a car. You have likely heard the story and know that close relatives who witnessed the event have called it murder. After Jack was shot and killed, his wife and nephew were arrested, put on the ground and handcuffed. Each of these folks was “seized” for purposes of the constitution. Were the actions of the officers reasonable? Each case is different and each may result in a different conclusion. The state and feds investigated the situation but no criminal charges were ever filed. The use of deadly force by officers, whether in Washington DC or rural Idaho remains murky ground. The civil case which followed the “non-action” by the Attorney General’s Office resulted in a settlement of the matter, but that was just money. Neither officer was required to account for his actions in shooting Jack.

It’s not that officers are never held to account criminally for their conduct when they use deadly force, but it doesn’t happen very often. Maybe it shouldn’t. After all, the job law enforcement officers do on a daily basis seems more and more dangerous. We want and need to trust their instincts for the most part.

You may recall a news report in which officers used a Taser against a man twenty times in less than a minute. Think 50,000 volts against a man who did NOT have a weapon and had been told by officers that they were taking him to the emergency room for treatment. He was high on cocaine and highly irrational. On arrival at the ER, he kicked out a window in the patrol car. As he tried to escape (did I mention he was handcuffed?), they unleashed their electronic warfare and in the end, he died. And that was not even deadly force. The Taser is not intended to kill, but rather to immobilize. Even when the force used is not intended to be deadly, the question of whether officers acted reasonably will determine whether their actions can be the basis for some criminal or civil case.

I can’t forget that kid yelling “Don’t taze me dude!”

And there is the problem for each of us. We need to trust that law enforcement officers start with the correct mindset: protect, serve, lead. Hopefully they never have to use a weapon to protect themselves or anyone else, but if they do use deadly force, it has to be reasonable under the circumstances. Any force used has to be reasonable. Not reckless and certainly not unnecessary.

Murky stuff here.

A while back (what’s a couple months between friends) I wrote a post about inherent bias and prejudice, the premise of which was that it is difficult for the defendant to win any criminal case because jurors – the decision makers – start with a bias in favor of the prosecution. They prejudge the defendant because he is charged with a crime and often because he (or she) “looks guilty,” whatever that means! They tend to believe the justice system sorts out innocent people before they get to trial. So, getting to “not guilty” is always a crap shoot.

In April I tried a case in which a Mountain Home Airman was charged with rape and aggravated assault with a deadly weapon in State court. The Air Force had administratively discharged him for the same allegations, but there the standard of proof was “by a preponderance” not “beyond a reasonable doubt.” The Air Force board was asked to decide whether my client should be fired based on the evidence – or should he be permitted to stay on active duty.

The criminal trial for rape and aggravated assault carried a potential life sentence, so the stakes were far higher for our client in State court than at the Air Force board.

At the discharge board hearing, the inherent bias of the Air Force officer decision makers in favor of good order and discipline, as well as protecting the Air Force reputation within the local community played in favor of terminating my client’s service. The “prosecutor” for the board argued as much. The allegations and criminal charges had been in the news, subjecting the base to critical review by the community. So the five officer board members were likely prejudiced (inherently, not purposefully) against my client and supportive of upholding the reputation of the Air Force and the base. That bias in favor of the Air Force almost certainly and predictably played in favor of discharge.

In the criminal trial the bias in favor of the victim’s story and prejudice against my client were reversed as the trial progressed. My guy looked like the all American Airman caught in the claims of a young woman who said she had not consented to sex, but admitted she was so drunk she could not really recall even going home with him. She did not look or sound like a victim and importantly she had told her friend, “I think I had sex…”

I understand that a victim might truly not be certain whether or not she had been assaulted, but if you claim not to have consented, that type of uncertainty can only work against you in court. The result – not guilty of rape and the aggravated assault charges.

When the case was over a juror told me that our client “looked not guilty.” He showed up for court in a blue suit and white shirt and never over-reacted to the testimony, even when it was graphic and accusatory. He had told his story to the police – and that story had its own warts – but he met the jurors’ expectations as to what a person would say to a detective when confronted with such an allegation.

The jury was out for nearly four hours. Why? Because getting 12 people to agree that there was not proof beyond a reasonable doubt involved a lot of consideration, and a lot of going back and forth.

A friend of mine (Psychologist) once told me jurors are like any group asked to make a decision. He says they go through three stages – forming, storming and norming. They “form” into subgroups based on their initial perception of the facts and their own bias and prejudice. They ”storm” over what actually happened, or in a jury setting what the evidence proves beyond a reasonable doubt. And they “norm” or decide based on all of that plus the give and take of any group decision. Their decision literally represents the “norm” of the group. BTW – credit Bruce Tuckman’s stages of group decision-making.

Kind of like what used to happen in Congress. They make a decision (the jury, not Congress). That decision is the performance of the group/jury.

We give jurors instructions on what “reasonable doubt” means, but the instructions seldom answer their questions. How much doubt is enough? What is reasonable? When can I go home! I try to deal with these issues throughout each trial, but still, getting to 12 votes for the defense is a challenge.

So pay attention to the details. Answer the tough questions that you know the jurors will ask, and focus your case on reasonable doubt. By doing so you focus the jurors on the problems with the prosecution, and not the problems with your case. And try to convince your client to show up looking like an innocent person – dressed conservatively and as jurors think they would show up if their life was on the line.

Impartiality is a myth. So the idea that you will start with an impartial jury or fact finder (maybe a Judge) misses the mark. We all have inherent bias and prejudice that colors our decision making. All of us.

Let’s start with a simple example involving cars. I have a bias (or preference) in favor of Westfalia vans and Porsche 911s. The two are polar opposites – sexy German sports car and utilitarian German fun wagon. If I had both in my garage I would be a happy camper. Over time I have had both but modern automobiles have taken my eyes away from each. So too the two grandkids I cart around daily.

Continue Reading Start with Bias and Prejudice – your story must deal with these or you lose!

Slate Magazine has done a great job recounting what happened at Ruby Ridge in its Podcast Standoff. Listening now and remembering how life can turn in an instant. Want the inside story? Ron Howen, Gerry Spence and others tell the story from their viewpoint. Episode 4 tells how the FBI held back the most important evidence in the case, Lon Horiuchi’s drawing of what he saw when he fired the shot that killed Vicki Weaver. I spent a couple hours being interviewed last summer and it brought back so many memories. You can start the series here, and hear my story in Episode 4. The picture below was taken when David Nevin and I went to Ruby Ridge after the trial Sam Donaldson from ABC.

Boise State University Professor Dr. Greg Hampikian is a  Biologist whose work has identified persons wrongly accused and convicted of crimes. He is regarded as one of the foremost forensic DNA experts in the United States and beyond. He is the founder of the Idaho Innocence Project, which, along with other state Innocence Projects, has helped to clear hundreds of persons wrongly convicted. Those convictions have often been based on faulty science and false confessions. So when he tells us that DNA testing at crime labs is suspect and results may be misleading, we should pay attention.

Dr. Hampikian’s op-ed in the New York Times yesterday should sound a bell for any person who faces criminal charges supported by DNA test results. Dr. Hampikian reports that in a recent reliability study, 74 out of 108 crime laboratories implicated an innocent person in a hypothetical bank robbery.

Continue Reading There’s A Problem With DNA Testing At Crime Labs – They Often Get It Wrong.

Yesterday I posted about Idaho’s tough marijuana laws.  Is Idaho any closer to legalizing marijuana-based products? How about cannabidiol (CBD) oil? I don’t think so.

It seems like every week I receive an email solicitation offering to sell me CBD oil, ordered online and delivered by mail to my home or office.  Each such offering indicates that CBD oil is a lawful product in all states, including Idaho. I am not so certain.

Continue Reading There’s a problem if you buy CBD oil in Idaho – it may be a crime.

Idaho’s Marijuana Laws Are Tough – Maybe Even Unfair!

I spent time yesterday driving to and from a rural courthouse in Western Idaho for a hearing on a marijuana case. The charge – felony possession of marijuana – arises out of a car having been stopped near the Oregon border during early morning hours for traveling too slowly. That’s right, too slowly. Officers claim they smelled marijuana, and the Oregon driver admitted the illegal weed was on board. As the amount exceeded 3 ounces, the client faced a felony, with the possibility of five years in prison and a $10,000 fine.

Continue Reading Idaho’s Marijuana Laws Are Tough!

In 2016 the Ninth Circuit Court of Appeals ruled in Wilson v. Lynch (9th Cir. Case No. 14-15799) that medical marijuana cardholders are prohibited from purchasing firearms based on federal regulations.  The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an Open Letter to gun dealers in 2011 stating that, “If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person.”

Continue Reading That Medical Marijuana Card Can Prevent You From Buying A Gun!