Let’s take the cuffs off and address the elephant in the room. When the Idaho Supreme Court released their decision in Clarke, that an officer could no longer make a warrantless arrest unless the officer witnessed a completed misdemeanor “in their presence,” it raised an alarm in the criminal justice community.[i] It’s no secret that the Clarke decision upset a lot of prosecutors and law enforcement officials. The fallout of the Clarke decision continues to be felt even years after the Court rendered its decision.

One of the consequences of the Clarke decision was that it unintentionally or intentionally increased the use of citizens’ arrests in misdemeanor DUI cases. Since Clarke, one of the “many misconceptions and urban myths”[ii] has been whether a citizen’s arrest is a valid exception to the Clarke warrant requirement. This is a particular problem when a citizen witnesses the “actual physical control” element on suspected misdemeanor DUI, but the officers do not witness it in his presence.[iii] Rather than abiding by the Clarke decision’s advice to seek a warrant or summons, some prosecutors and law enforcement officers have begun to solicit citizen’s arrests. This article hopes to clear up the misconceptions regarding citizen’s arrests and encourage a policy of seeking a warrant rather than advocating the libelous prospect of involving a concerned citizen to make these arrests.

The big question is whether or not a citizen may make a citizen’s arrest on a DUI (or any other offense) when they only observe actual physical control, without actual knowledge of impairment? May the citizen use the officer’s collective knowledge to establish a full offense for a DUI after the officer has done the investigation, by assenting to commit a citizen’s arrest?

It’s well known after Clarke that an officer may not make a warrantless arrest unless the completed misdemeanor is committed “in his presence.” It’s equally well-known that the officer cannot use “collective knowledge” on an element of an offense to make a warrantless misdemeanor arrest under Clarke.[iv] The arresting officer cannot use “collective knowledge” to establish a whole offense by communicating with other officers on scene to satisfy the “in the presence” requirement. So, can a citizen use the officers’ observations, which were collected outside his presence to make a citizen’s arrest on a misdemeanor? Based on Bell it stands to reason a citizen has no more arrest authority than a police officer, who cannot use “collective knowledge” gathered outside “their presence;” but there is little clarity on this issue.[v] These are questions that the Idaho Supreme Court and Court of Appeals should answer for us.  

When Can a Citizen Make an Arrest for a Misdemeanor?

            In Idaho, a citizen just like an officer, must make misdemeanor arrests for a crime committed or attempted “in their presence.” The authority for citizen’s arrests lay in I.C. § 19-604, which states, a “private person” may arrest another, “for a public offense committed or attempted in his presence.” I.C. § 19-604.[vi] Just like an officer, citizens may use their senses to ascertain whether or not the crime has been committed.[vii] And just like an officer, a citizen must have probable cause that a misdemeanor occurred before they can make an arrest for an offense completed “in their presence.”[viii] But, unlike an officer, a citizen may not stop, or detain someone, to investigate a possible crime, before making the decision to arrest. This is because the statutory authority for a citizen to make an arrest, already presumes the citizen has facts necessary to make an arrest, at the time the arrest occurs.

Of course, the probable cause issue is also subject to unique shopkeeper’s privilege and other common law circumstances. For the purpose of probable cause, generally if the citizen witnesses a crime “in their presence,” the citizen may then merely summon law enforcement to effectuate the arrest on their behalf. This assumes an officer must be summoned after the crime is committed in the citizen’s presence. It does not suggest that the officer can be summoned to investigate a possible crime the citizen believes may have been committed “in their presence.”

Misdemeanor DUIs and the Citizen’s Arrest Issue

            I regularly see the following reoccurring scenario in my practice with respect to misdemeanor DUI Clarke issues… 

It’s 1:30am and a concerned citizen reports a suspected impaired driver to 911. The citizen tells the operator the vehicle is swerving over the lines of the road and nearly colliding with other vehicles. The citizen provides a detailed description of the vehicle, complete with the plate number to 911. Law enforcement receives the call and proceeds to the registered owner’s home address. At the residence, they observe a vehicle matching the reported plate number. The vehicle is unoccupied, and the engine is not running. The officer rings the suspect’s door. The vehicle owner answers. The officer observes the odor of alcohol and even obtains a reluctant confession through the suspects slurred speech. The officer then promptly administers the sobriety tests, which the suspect inevitably fails.

Realizing this could be a possible Clarke issue, because the officer did not witness the suspect in actual physical control, he calls an exhausted on-call prosecutor. The prosecutor gives the officer two options. First the officer can seek an arrest warrant (and wake up a magistrate). Second, the officer can call back the concerned citizen, sharing the details of his observations with them, and then ask them to perform a citizen’s arrest. The officer chooses the citizen’s arrest option. The officer calls the concerned citizen, shares the details of his investigation, and then solicits the citizen to make an arrest. The citizen agrees to “press charges” and the officer then makes an arrest. The owner is then handcuffed, placed in the back of a patrol vehicle and subsequently breathalyzed.

            This is the problem, the officer never observed the actual control element in his presence; and the citizen never observed the signs of impairment in his presence; thus, there was no completed offense without the other. A citizen shouldn’t be able to use collective knowledge from law enforcement to establish probable cause for a citizen’s arrest, because the arrest should take place before law enforcement arrives. Collective knowledge has already been held to not apply in Clarke situations and even applies to what an officer learns from “concerned citizens.”[ix] It stands to reason, if actual knowledge is required, that a citizen also can’t use some sort of collective knowledge in establishing probable cause to make a citizen’s arrest. Surely the citizen does not have a greater scope in establishing probable cause than an officer. This is the issue the appellate court should address with respect to these types of citizen’s arrests, which are being used to try and circumnavigate the Clarke decision. Can the citizen use the officers’ observations to develop probable cause for an offense which occurred outside the citizen’s presence, but inside the presence of law enforcement?

Both the citizen and the officer have no knowledge without the other. The citizen obviously observed actual physical control, but at best only had a hunch on the impairment issue. On the citizen’s side they did not have the required actual knowledge of impairment, so there was no completed offense in their presence under I.C. § 18-8004. On the other hand, the officers never witnessed the actual physical control of the vehicle but investigated the impairment portion of the offense upon the citizens observations. Just like two wrongs cannot make a right, here the citizen and the officer must add their knowledge together to equal a completed misdemeanor. It’s required, on misdemeanors, that the person making the arrest must have actual knowledge of the completed misdemeanor occurring “in their presence,” at the time they make the arrest. The key takeaway is that a citizen must have knowledge of all the elements before summoning law enforcement; not after law enforcement investigates the misdemeanor DUI. Additionally, the officer must be summoned to assist in the arrest and not solicit the citizen to make one so that he can investigate a possible crime.

Encouraging Against a Citizen’s Arrest Is the Best Policy          

It’s no secret that trust in our criminal justice system may be at an all-time low. Law enforcement, prosecutors, and magistrates are in a unique position to reestablish trust in our system, but only if they choose to uphold the “in the presence” requirement, for officers and citizens alike. The cause of the distrust stems directly from a lack of transparency and accountability populating the criminal justice system. The image of the judiciary needs to be rebuilt stronger than before, but countenancing citizen’s arrests, which are potentially unlawful, is not a good way to rebuild it.

            When an officer chooses to shortcut the Clarke warrant requirement by seeking a citizen to make an arrest on a DUI, it’s a waste of resources for everyone in the court system. Time is our most valuable and precious commodity. When an officer pushes through an otherwise unlawful Clarke arrest by justifying it was a “citizen’s arrest,” it clogs an already busy calendar. In most cases, an attorney for the accused will file a Motion to Suppress, causing a notice of hearing to be drafted by the clerk, a brief to be drafted, read, and argued by the parties, and a judge to carefully decide the application of the law to the facts. Ultimately, the only benefit will be to the officer who may be getting paid double time for testifying in court.

            Magistrates are also often frustrated when the citizen’s arrest is used in DUI cases. Rather than seeking a warrant, the prosecutor bypasses the judge resulting in a possible suppression by him of a otherwise actionable offense. Officers and prosecutors often forget, magistrates are uniquely qualified to determine probable cause. Some prosecutors may fear waking up a judge in the middle of the night to obtain a warrant on a DUI case. But they shouldn’t fear anything. Using a magistrate to determine probable cause may result in a stronger case for the prosecutor since probable cause was already determined. Bypassing a magistrate’s discretion to avoid inconveniencing them, may create a problem which is then reviewed again by the magistrate on suppression.

Generally, most citizens first discover there were strings attached to their citizen’s arrest, when they receive a court ordered invitation to attend the suppression hearing. One of the most common fears of any person is public speaking. In citizen’s arrest cases, the citizen is hauled into court in front of a potentially grumpy magistrate, a nervous prosecutor, and a furled brow defense attorney, before providing testimony they may have no actual knowledge of. This unintended surprise does not inspire trust in the judiciary and it’s not anyone’s idea of a good time. Rest assured that citizen will then go and tell their family and friends about the awful experience in the courtroom. 

What Are the Specific Dangers of Enabling and Encouraging Citizen’s Arrests?

            A citizen who makes an unlawful arrest outside their presence faces potential civil litigation, as well as criminal charges themselves such as, false imprisonment, battery, assault, kidnapping, etc. Allowing a citizen to make a citizen’s arrest exposes the citizen to unwanted liability, often without informing them properly of the possible consequences if they unlawfully arrest. We know most citizens are unfamiliar with the elements of an offense, the requirements to make an arrest and specifically the “in the presence” requirement. The citizen makes a very costly gamble every time they are asked to make an arrest. Additionally, the officer could face potential liability as well for his role in encouraging or enabling the conduct. The Idaho Supreme Court warned in Sutterfield…

“We caution everyone that a citizen’s arrest should not be taking lightly. Failing to adhere to statutory requirements, using more force than is reasonably necessary, and abusing the power can subject the citizen to criminal and civil liability….”

When an officer solicits or encourages a citizen to make an arrest, the citizen pays the price when they are wrong because they assume all the risk and obligations to that arrest. If a citizen doesn’t observe the crime(s) “in their presence” and is encouraged, solicited, or scapegoated by an officer to make an arrest, the citizen maybe liable for false arrest, assault, battery, kidnapping, or false imprisonment. Unlike the officer, a citizen has no immunity. Under the Idaho Tort Claims Act, the citizen can be sued for false arrest, assault, battery, wrongful imprisonment, defamation, or intentional infliction of emotional distress.[x] Additionally, the officer himself may arguably face some liability for encouraging or soliciting a citizen to make an arrest on his behalf to investigate a crime.

When officers encourage or surrogates the citizen to make an arrest outside their presence for the purpose of investigating a crime, the officer may lose his qualified immunity. Under 42 U.S.C. § 1983 immunity can be overcome if the “state agent” under the color of law violates the constitutional rights of another. If any person acts “with the intent to assist the government in its investigatory or administrative purpose” the protections of the Fourth Amendment are triggered by that individual.[xi] A citizen could be in effect a “state agent” if their intention is to assist in the investigation of a suspect, a job traditionally carried out exclusively by law enforcement. This means immunity could arguably be taken away from the officer who solicits this arrest. A sound practice may be for prosecutors to strongly discourage police departments from participating in such arrests because it could pose potential liability for their counties.

Examples in Idaho                    

Last year, the East Idaho News reported in Bonner County, a $1.5 million-dollar law suit was filed against a county commissioner because a local citizen made “threatening emails” toward him in a public forum. The commissioner summoned the police to effectuate the arrest, only to have the arrest be held unlawful.[xii] Bonner County taxpayers were ultimately responsible for paying $200,000, all because the commission’s mistake of effectuating a “citizen’s arrest.” While that case did not involve a DUI, it illustrates the problem.

Unfortunately, I have already seen it locally here in Caldwell, Idaho. In 2021, we had (or have) a “Citizen Police Academy” put on by the Caldwell Police Department. This academy states it provides “training similar to that of an actual police officer…” and allows a “firsthand look at what rules, regulations and policies the police follow.” I don’t know if this program is disguised as a citizen’s watchdog group or if it is a very on-hands recruiting program. In my opinion this is a dangerous way to spend taxpayers’ dollars. Citizens who may be forming “watchdog” groups who are ill-equipped, untrained, but empowered may be a dangerous thing. Will programs like this help or hurt Idahoans in the long run?

My biggest fear is that we are using these DUI citizen’s arrests for short-term gains, which will inevitably lead to long-term losses. Using citizen’s arrests in such a cavalier manner will necessarily lead to an encouragement for litigation against the citizens who choose to make these arrests. Perhaps, in the future, some law firms will even specialize in personal injury suits resulting from citizen’s arrests. Meanwhile, our unwitting friends and family who participate in these arrests may ultimately pay that price.

An Easier Solution to Your Next DUI Clarke Case Involving a Citizen’s Arrest

            “If the tractor ain’t broke, don’t fix it.” The Idaho Supreme Court in Clarke already gave all of us great advice on our next DUI Clarke case. The advice is simple, safe, but effective. Get a warrant or issue a summons! Let’s not reinvent the wheel with citizen’s arrests. Speaking as a defense attorney, there’s no need to go down that road. If a warrant is issued by a neutral and detached magistrate, it’s far more difficult to win on a suppression issue. Magistrates are uniquely qualified to handle issues of probable cause, and warrants can be obtained quickly, easily, and even telephonically. In Idaho, we have a unique opportunity to be better and not make the mistakes of other jurisdictions.   Every lawyer I know wants a better and safer Idaho. I believe Idaho is a great state; but I think we all can agree, it can be ruined quickly. Idaho is still a place where well-meaning prosecutors and patient magistrates can make big differences, whatever their geographical location. I encourage magistrates and defense attorneys to confront these issues when they arise and uphold the “in the presence” requirement for both citizens and law enforcement. I hope prosecutors are able to adequately train police officers on the issues of Clarke and citizen’s arrests and discourage this practice. If we all educate ourselves on the “in the presence” requirement, I believe with growing pains we can make a better and safer Idaho for now and the future.

Travis E. Rice is the first member of his immediate family to go to college. Mr. Rice obtained a B.S. degree from Brigham Young University-Idaho, before attending and graduating from the University of Idaho’s College of Law in 2015. Upon graduation Mr. Rice volunteered for the Idaho State Bar’s Volunteer Lawyer Program to gain general experience prior to opening his own solo criminal defense practice in Caldwell, Idaho in 2017. Mr. Rice’s practice slowly evolved into a more general practice with a focus on criminal defense. Mr. Rice currently practices in Ada, Canyon, Adams, Elmore, Payette, and Owyhee counties, has been married to his lovely wife for 16 years, and has four very active boys to keep up with.

[i] State v. Clarke, 165 Idaho 393 (Idaho 2019).

[ii] See State v. Sutterfield, 168 Idaho 558 (2021).

[iii] Idaho Code § 18-8004 requires the establishment of actual physical control on any DUI charge. This is defined as “being in the driver’s position of the motor vehicle with the motor running or with the motor vehicle moving.” 

[iv] State v. Bell, 172 Idaho 451 (2023).

[v] Id.

[vi] A “public offense” includes a misdemeanor. Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387 (1960).

[vii]  See State v. Sutterfield, 168 Idaho 558 (2021); State v. Moore, 129 Idaho 776 (Idaho Ct. App. 1997) holding a citizen may use their senses to determine if an element of an offense has been committed in their presence.

[viii]  See State v. Sutterfield, 168 Idaho 558, 562, 484 P. 3d 839, 843 (2021); State v. Moore, 129 Idaho 776 (Idaho Ct. App. 1997) holding a citizen may use their senses to determine if an element of an offense has been committed in their presence.

[ix] State v. Bell, 172 Idaho 451 (2023).

[x] See Idaho Tort Claims Act, Idaho Code § 6-901-6-923

[xi] Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001)

[xii] https://www.eastidahonews.com/2024/12/an-idaho-county-apologizes-to-man-put-under-citizens-arrest-at-commission-meetings/; https://www.spokesman.com/stories/2025/jan/02/bonner-county-settles-and-apologizes-to-second-man/