By Melissa Davlin, Idaho Reports
The Idaho Supreme Court has ruled that officers cannot arrest suspects for misdemeanor offenses without warrants if they have not observed the alleged crime, a decision which justices acknowledged will impact officers’ ability to respond to domestic violence calls.
In the unanimous opinion for State v Clarke, authored by now-retired Justice Joel Horton, the court overturned a conviction for Peter O’Donald Clarke for possession of methamphetamine, marijuana, and paraphanelia, all of which were found during a search of Clarke as he was being arrested for misdemeanor battery.
Clarke had been accused of harassing and groping a woman on a Coeur d’Alene beach, touching her without her consent and following her and her son when they tried to leave. Clarke argued that because the responding officer had not witnessed the alleged harassment, the arrest violated both the Idaho and United States constitutions.
That has big implications for officers’ ability to respond to misdemeanor domestic violence situations, said Dr. Lisa Growette Bostaph of Boise State University’s Criminal Justice department.
The justices acknowledged the impact of the opinion, noting that Idaho Code allows officers to intervene in domestic violence situations, even if they have not witnessed the alleged incident.
“We are fully mindful of the significance of this conclusion,’ Horton wrote, noting that “domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community.”
“Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution,” the opinion says.
In other words, it doesn’t matter how well-intentioned the statute is if it violates the constitution, and a change to the constitution is likely the only potential remedy.
In the meantime, this ruling will make it significantly harder for officers to respond to alleged domestic violence.
“Unless officers, when they respond, believe a felony has been committed, or unless they witness the actual domestic violence themselves, they will not be able to arrest on-site. They will have to get a warrant and come back,” Bostaph said. “They will not have the legal means when they respond to remove the offending party from their home. They can ask them to leave, but they cannot force them to leave.”
The same will apply to reports of misdemeanor protection order violations and other crimes. If the alleged crime isn’t happening while the officer responds, and the officer doesn’t witness it, they will have to obtain a warrant if they don’t believe a felony has occurred.
Bostaph said she didn’t want to speculate on how this will affect domestic violence victims and families.
“It’s going to be an unfortunate experiment,” she said. “But to say that I’m nervous, to say that I’m anxious, is not an overstatement.”