An Idaho Supreme Court opinion negated decades of common practice and now requires officers to witness a misdemeanor in order to arrest a suspect.

In a case where a northern Idaho man was arrested for allegedly touching a woman’s backside without her consent, he won an appeal, claiming he was arrested without a warrant and it violated his right to warrantless search and seizure. The Supreme Court vacated the man’s conviction Wednesday and enacted statewide change in a pen stroke.

The man, Peter Clarke, was arrested after the woman reported the incident to a Kootenai County Sheriff’s Office, which relied on her witness statements to make an arrest.

The unanimous opinion agreed with Clarke and upset years of precedent that allowed officers to arrest a suspect who committed a misdemeanor offense outside of an officer’s sight. Now officers have to witness the offense or have a person who saw it sign a citizen’s arrest citation or have judges review and sign warrants for misdemeanor offenses. A statutory amendment was made in 1979 that allowed domestic violence crimes to have warrantless misdemeanor arrests but is now obsolete.

The Supreme Court reviewed the intent of the original framers of Idaho’s constitution and relied on laws adopted in 1890 that bar warrantless misdemeanor arrest, according to the opinion.

The Legislature previously made changes to Idaho Code that allowed officers to arrest a suspect without a warrant — particular in domestic violence situations — so the offender was detained and couldn’t repeat the violence after police contact. Now victims of domestic violence would have to act as witnesses and sign citizen’s arrest citations in order for officers to arrest an alleged abuser.

Nez Perce County Prosecutor Justin Coleman said he has been working with local officers to try to suss out how to proceed with misdemeanor offenses in the wake of the decision her called “shocking.”

The opinion also alters how officers investigate other misdemeanor crimes. Coleman said his interpretation of the opinion means officers must witness all misdemeanors offenses before they can initiate an arrest. For example, an officer has to witness a DUI crash in order for the driver to be arrested. Simply coming upon a crash and performing a normal DUI investigation would not be sufficient for an arrest, Coleman said.

In a strongly worded statement, Coleman said, he is obligated to follow the laws as written and will continue to do so, but that he disagrees with the court’s opinion.

“It restricts officers’ ability to protect victims of domestic violence and sexual batteries,” Coleman wrote in a statement. “Unless they witness it, officers will no longer be able to arrest individuals who have committed these offenses and remove them from dangerous situations. We will continue to stand by victims throughout the process and remain focused on community safety. This change by the Idaho Supreme Court undermines public safety and places victims of domestic violence in increased danger.”

In the court’s opinion, the justices noted how influential this change is but argued that the original intent of the framers supersedes any changes the Legislature made allowing officers to make warrantless arrests.

“We are fully mindful of the significance of this conclusion,” the opinion states. “(Idaho Code) permits peace officers to use their arrest powers to intervene in domestic violence situations, even though they have not personally observed the commission of a crime, and to thereby defuse potentially violent circumstances. Nevertheless, the extremely powerful policy considerations which support upholding (previous laws) must yield to the requirements of the Idaho constitution.”

Many other misdemeanors required a warrant for an arrest, but this change to domestic violence does pull a powerful tool away from officers. Lewiston Police Lt. Jeff Klone said his officers have been advised to handle it on a case-by-case basis.

“We’ll look at other options, maybe other crimes committed in our presence while we’re there if we feel that someone needs to be incarcerated,” Klone said. “If we have a victim of domestic violence and we can’t physically arrest this person, but there is a safety concern, we’ll look at what resources we have in the valley and get them somewhere.”

Domestic violence shelters are an option, but can only house so many people.

“It makes our jobs more difficult, but laws are laws, so we’re gonna follow it,” Klone said.

The highest court in the state has the last say, and trying to modify or walk back this decision could be extremely difficult. The Legislature cannot alter the constitution through legislation; rather, it would require a constitutional amendment.

Felony conduct is still an arrest-worthy offense, as originally outlined in the state’s constitution. But the ramifications of this decision will be felt immediately and could hamper officers from making arrests in other cases, Coleman said.

He said he is working with local judges to try to streamline the warrant-signing process when it comes to misdemeanors. Coleman said this decision should in no way deter people from calling 911 in a domestic violence situation.

The Idaho Coalition Against Sexual and Domestic Violence issued a statement that this decision removes officers’ ability to de-escalate a situation.

“Now, while officers may still ask a suspected perpetrator of domestic violence to leave, they will not be able to arrest that person unless they believe the violence constitutes felony domestic violence,” the statement reads. “We are also already exploring policy solutions that address the challenges this ruling creates. We are seeking solutions that provide flexibility, individual and community safety, and recognize survivor autonomy.”

Tom Holm may be contacted at (208) 848-2275 or Follow him on Twitter @TomHolm4.

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