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.