BOISE — A proposed constitutional amendment that would let police officers make arrests without a warrant, based on probable cause, for crimes committed outside their presence was introduced into the Idaho Legislature Wednesday.
After a lengthy explanation from sponsor Sen. Grant Burgoyne, D-Boise and a longer-than-usual debate for an introductory hearing, the Senate State Affairs Committee voted unanimously to introduce the proposal, clearing the way for a full hearing later. To become part of the state Constitution, the amendment would need to pass both chambers of the Legislature by a two-thirds vote and then be approved by voters in November 2020.
The amendment stems from a June 2019 Idaho Supreme Court ruling in the case State v. Clarke, where the court held that warrantless misdemeanor arrests for crimes an officer didn't witness violate Article 1, Section 17 of the Idaho Constitution. After the ruling came out, law enforcement and victims' advocates expressed concern that it could cause problems in cases of domestic violence especially.
Burgoyne gave a barfight or reckless driving as examples of other crimes where an officer might want to arrest someone who is a threat but would be limited by the ruling. He said the amendment, if it passes, would return things to how they were before the ruling, when an officer could make arrests in such cases.
“If we adopt the constitutional amendment eventually that’s in front of you we will go down a road that we've been on — erroneously according to the Supreme Court — for a very long time," he said.
Burgoyne said he had received an opinion from the state Attorney General's office that the proposal would not violate the federal constitution.
Sen. Cherie Buckner-Webb, D-Boise, said she worried expanding police arrest powers could lead to people of color or immigrants, especially, being arrested in cases of mistaken identity.
“It could be very easy to misidentify people and that’s my concern here,” she said.
Burgoyne said this could happen, talking about the history of the use of police in the U.S. to control immigrants in Northern cities and black people in the South and how that legacy is still with us.
“We give law enforcement officers power,” he said. “Whenever we give them power, we run the risk, I say the certainty, that there will be a bad apple, and it will be abused.”
However, Burgoyne said police already have the power to arrest people, and there are procedures that are supposed to hold them accountable for abusing that power. Also, he said not allowing misdemeanor arrests could lead police to charge people with a felony instead in some cases.
“That has its own ramifications, its own implications, that I think are pretty unfavorable,” Burgoyne said.