Bill description: SJR 104 would amend the Idaho State Constitution to allow for warrantless arrests for offenses not committed in an officer's presence.

Rating: -3

Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

SJR 104 would amend Section 17, Article I, of the Idaho State Constitution, Unreasonable Searches and Seizures, by the addition of the following provision:

"No warrantless arrest based on probable cause to believe the person committed an offense shall be deemed an unreasonable seizure solely because the offense in question was not committed in a peace officer's presence. Nothing in this section shall limit the legislature's authority to statutorily limit the authority to arrest."

SJR 104 is similar to SJR 103, introduced earlier this year, but the earlier version lacked the final sentence related to the legislature's authority.

The use of "probable cause" as a pretext for depriving people of their liberty creates a significant imbalance in the application of the law because it is not based on concrete or definitive evidence. By removing the requirement that an officer actually observe the offense for which someone is arrested, guesswork and even personal prejudice are introduced into the process.

Furthermore, an officer's use (or even misuse) of probable cause has been upheld by the courts under the doctrine of "qualified immunity." In District of Columbia v. Wesby, the U.S. Supreme Court overturned a lower court ruling that limited the application of both probable cause and qualified immunity.

In a decision handed down in January of 2018, the high court ruled that probable cause "is 'a fluid concept' that is 'not readily, or even usefully, reduced to a neat set of legal rules.'" It also concluded that "[p]robable cause 'requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" On qualified immunity for officers, the court reiterated that it is a "demanding standard [that] protects 'all but the plainly incompetent or those who knowingly violate the law.'"

Taken together, this amendment to the Idaho State Constitution would allow an officer to deprive people of their freedom based on the mere "probability" of an offense and would not hold the officer liable should that probability prove unfounded.

(-1)

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

Passing the constitutional amendment proposed in SJR 104 would increase the frequency with which individuals are deprived of their liberty through arrest based on supposition rather than on proof.

(-1)

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

While the constitutional amendment proposed in SJR 104 would amend the state's constitution, the Fourth Amendment protection against unreasonable searches and seizures that is found in the federal constitution would remain unchanged.

The Fourth Amendment reads as follows: "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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

An arrest is the seizure of one's person, and to seize someone based on the mere probability that the person in question may have committed an offense is an unreasonable practice, though unfortunately one that has been tolerated by the courts in recent years. It should be noted that throughout the eighteenth and nineteenth centuries, it was commonly understood that an individual could not be arrested for a misdemeanor without a warrant unless the offense was committed in an officer's presence. It was the overwhelming and unanimous evidence in support of this fact that led to the Idaho State Supreme Court ruling against such arrests in State v. Clarke last year.

The proposed amendment to Idaho's constitution would effectively nullify the protections against unreasonable searches and seizures by allowing warrantless arrests based on mere probability, even when the offense in question was not committed in an officer's presence.

(-1)