Johnathan R. Baldauf

At least 30.2% of American youth will be arrested by the time they are 23.[i] For parents of boys, the numbers are worse: 23-year-old young men are 2.1 times more likely to be arrested than 23-year-old young women.[ii] Parents with three children (especially three boys) face a near-statistical certainty that one of their children will be arrested. That assertion may be shocking for many, but as Idaho’s incarceration rate (760 per 100,000 in 2021) is higher than the national average (664 per 100,000 in 2021), it is a reality that all Idahoans face.[iii]

These high numbers align with the rise in the American prison population during the last half of the 20^th Century.[iv] These arrests have consequences, even if the charges are dismissed or even expunged.[v]

There are consequences to the taxpayer for processing the case. Defendants (or their family) might have to pay bond agents as the case gets resolved or the person might even have to await resolution of the case from jail, leading to significant costs for video calls, messaging, and commissary.

Video of the event, if recorded and not exculpatory, may be shared, leading to social media outrage. Employment consequences abound.

Given that being arrested is a more common experience for Americans in general, and young people in particular, it is vital that the youth understand their rights when it comes to search and seizure. This article’s goals are two-fold: to briefly review some of the possible causes of the rise in the incarceration of Americans and to highlight specific areas that any person should know prior to an encounter.

America’s High Arrest Rates

The 30.2% arrest rate is a substantial increase since the 1960s, when the rate was at 22%.[vi] The causes of this increase are difficult to determine, especially as the crime rates have not consistently tracked with these increases.[vii] But as arrests and incarceration rates likely share similar causes, a discussion of the high incarceration rates may shed light on why those rates have gone up.

In 2014, the National Academy of the Sciences released a 465-page report on the causes of the high incarceration rates in the United States. [viii] The committee drafting the report found that “the growth in incarceration rates in the United States over the past 40 years is historically unprecedented and internationally unique.”[ix] They found that this growth could largely be attributed to an increasingly punitive political climate surrounding America’s criminal justice policy which occurred in a time of increasing crime and sudden social upheaval.[x]

These changes provided context for the policy choices made across all branches and levels of government that significantly increased sentence lengths, required prison time for minor offenses, and intensified punishment for drug crimes.[xi] These punitive incarceration policies may have had a modest effect on crime rates, but it would not have been large.[xii]

Drug laws in particular became more stringent and were similarly ineffective.[xiii]

The nation began to rely on prisons as a form of social control even though, when “[c]ompared with other areas of social policy that require similar expenditures of billions of dollars, prisons in many states are subject to relatively little oversight.”[xiv]

Worse, those policies may have had a wide range of “unwanted social costs.”[xv] Recidivism, a reduced opportunity for rehabilitation, and a substantial burden on prison medical services resulted. The stigma of being convicted, along with the instability incarceration can cause for a family meant that the costs were not solely borne by those convicted of charges.

To loosely sum up the conclusions of the report, Americans reacted to a rise in crime and substantial social change the 1970s by instituting more punitive formal controls, eventually leading to the policy choices we have today. The committee recommended that since long prison sentences had small crime prevention effects and had high costs, mandatory minimum sentences and long sentences should be reduced.[xvi]

Search and Seizure and Consent

Given the rise in these rates, it seems clear that formal social controls, that is the use of laws and rules to govern behavior, have largely supplanted informal controls, meaning the customs and norms of a culture. In Idaho, we historically had the Idaho Supreme Court’s Repository and now have the iCourt system that allows non-juvenile charges to be viewed by the public. Americans also face the fact that much of their behavior can be put on social media for all the world to see, creating another record.

As these formal controls pervade our system, it becomes much more likely that people will have an interaction with police than in the past. Therefore, understanding the rules of that encounter are vitally important. Knowing how to calmly handle a stressful, and possibly terrifying, experience can reduce the stress for everyone involved.

During any police encounter, the goals are to: remain safe, retain rights, and remember.

The best chance at being safe is remaining as cool, calm, and collected as possible and complying with orders (as opposed to requests). Requests are questions: “Can I get you to step out of the car?” Orders are statements: “Step out of the vehicle.” If in doubt, it may be best to politely and clearly ask if the supposed order was an order.

Rights are retained by asserting them. First and foremost, that means not consenting to searches and seizures. It is not uncommon for what would have been illegal search or seizure to be made legal by the consent of a citizen who should be standing on their rights.[xvii] Those rights have been memorialized and reinforced for a reason.

Additionally, if being interrogated in custody, there is a three-step process. First, you should make clear you are going to remain silent. Second, you should ask for your counsel. A good script is, “I’m going to remain silent and I’d like to speak to my attorney.” Finally, and most importantly, you must actually remain silent.

Note that in this context, “interrogated” generally means simply being asked questions or something that might illicit a similar reaction. “In custody” is a little more complicated, as it does not necessarily require the classic Hollywood scene involving an interrogation room and could also mean simply being detained at the side of the road or on a sidewalk.

These rights should be clearly invoked. An infamous Louisiana appellate case suggested that asking for a “lawyer dog” or, more likely, a “lawyer, dawg,” was ambiguous and equivocal makes clear how important it is to state clearly what you are requesting.[xviii]

By not forgetting to ask for your attorney after actively asserting your right to remain silent, the police are legally required to not re-approach you until you have had the opportunity to speak to your attorney.

The last step is to remember what occurred, both prior to and during the encounter. Given the stress of the situation, it is not uncommon to be uncertain. As soon as possible, write down your recollection to ensure that you have the greatest ability to recall the specifics of the event.

Americans, especially young Americans, face a significant risk of police interaction and arrest. They should be prepared to ensure that their safety and rights are protected in the even that risk becomes a reality.

Johnathan R. Baldauf is the owner of Baldauf Law, PLLC. He has been practicing in Idaho since 2017 and handles criminal defense as well as family law cases throughout the state. When not handling those issues, he enjoys spending time with his fiancé, Shannon, trivia, and going to the gym.

[i] Robert Brame et al., Cumulative prevalence of arrest from ages 8 to 23 in a national sample, 129 Pediatrics 21–27 (2012), Hereinafter, “Brame 1.”

[ii] Robert Brame et al., Demographic patterns of cumulative arrest prevalence by ages 18 and 23, 60 Crime & Delinquency, 471–486 (2014). Hereinafter, “Brame 2.”

[iii] Emily Widra and Tiana Herring, Prison Policy Initiative, States of incarceration: The global context 2021, Prison Policy Initiative (2021), https://www.prisonpolicy.org/global/2021.html.

[iv] Compare Brame 1 to Franklin E. Zimring, The Scale of Imprisonment in the United States: Twentieth Century Patterns and Twenty-First Century Prospects, 100 J. Crim. L. & Criminology 1225 (2010).; See also Helen Fair & Roy Walmsley, World Prison Population List (Thirteenth Edition), World Prison Brief (2021), https://www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_13th_edition.pdf.

[v] Gary Fields &; John R. Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, Wall Street Journal, August 18, 2014, https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402.

[vi] Brame 1; Christensen, Task Force Report: Science and Technology, Office of Justice Programs, https://www.ojp.gov/pdffiles1/Digitization/174NCJRS.pdf, 216-228.

[vii] See Fig. 2.

[viii] National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014).

[ix] Id. at 335.

[x] Id. at 336.

[xi] Id.

[xii] Id. at 337.

[xiii] See id. at 347-348.

[xiv] Id. at 350.

[xv] Id. at 338.

[xvi] Id. at 343.

[xvii] Consent is an exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973). Consent can also required as a condition of probation and can then only be revoked at a hearing before the sentencing court. State v. Hansen, 167 Idaho 831, 837, 477 P.3d 885, 891 (2020). Officers may rely on the consent of others, including parents, to search areas of a home if the consenting person has actual authority to consent or that authority is reasonably apparent. Inhabitants. State v. Tena, 156 Idaho 423, 426, 327 P.3d 399, 402 (Ct. App. 2014).

[xviii] State v. Demesme, 2017-0954 (La. 10/27/17), 228 So. 3d 1206, 1207.