from the District Court of the First Judicial District of the
State of Idaho, Kootenai County, John T. Mitchell, District
judgment of the district court is vacated.
Appellate Public Defender's office, Boise, for appellant.
Jenevieve C. Swinford argued.
Attorney General's office, Boise, for respondent.
Theodore Tollefson argued.
O'Donald Clarke ("Clarke") appeals from his
judgment of conviction, entered upon a jury verdict finding
him guilty of possession of methamphetamine, marijuana, and
paraphernalia. The methamphetamine, marijuana, and
paraphernalia were all found on him during a search incident
to arrest for misdemeanor battery.
appeal, Clarke argues that the district court erred when it
denied his motion to suppress. Clarke contends his arrest for
the misdemeanor was unlawful because it had been committed
outside of the officer's presence; and thus the arrest
violated the constitutions of the United States and Idaho.
Clarke also alleges prosecutorial misconduct during closing
argument. For the following reasons, we vacate Clarke's
judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
approximately 6:45 p.m. on August 1, 2016, a young woman,
Taylor Dan ("Dan"), fagged down a Kootenai County
Deputy Sheriff (Michael Hanson) near Honeysuckle Beach in
Hayden, Idaho. Dan reported that she had been harassed and
groped by a man earlier in the day while trying to enjoy the
beach with her young son. She reported she had been sitting
on the beach with her son when she was approached by a man
unknown to her. The man appeared to her to be intoxicated.
She felt uncomfortable and had to keep moving away from him.
The man made unwanted personal advances, calling her
"hot" and "fine." Despite telling the man
she was married and not interested in speaking to him, the
man persisted. He sat down next to her and eventually grabbed
her "butt." Dan told the man "don't touch
me" and "stop," but he did it a second time.
The man, who was later identified as Clarke, then asked her
to call his lost cell phone so he could locate it. Dan called
Clarke's cell phone and then left with her son. Soon
after leaving, Dan received a harassing text message from
Clarke. (Dan deleted the text message upon its receipt.)
After giving the deputy a description of Clarke,
advised the deputy she wished to press charges.
Hanson, within a short time of speaking to Dan, located
Clarke. Clarke admitted to talking to Dan and to grabbing her
butt in the way Dan had described; however, he maintained the
touching was consensual.
on Dan's complaint and Clarke's confirmation that the
described touching had occurred, Deputy Hanson arrested
Clarke for misdemeanor battery. Clarke was searched incident
to his arrest. Deputy Hanson, in conducting a search of
Clarke's backpack, uncovered syringes, a baggy containing
marijuana, and a baggy containing several small chunks of a
white crystalline substance, later identified as
methamphetamine. In addition, when Clarke was being booked
into the Kootenai County jail, a partially filled syringe
containing a white substance, later identified as
methamphetamine, was found in Clarke's right shoe.
was charged with felony possession of a controlled substance
and bound over to district court following a preliminary
hearing. Clarke moved to suppress the evidence obtained
following his warrantless arrest. Soon thereafter, Clarke was
charged by Information with felony possession of
methamphetamine, misdemeanor possession of marijuana,
misdemeanor possession of paraphernalia, and misdemeanor
battery (the latter being the charge that resulted in his
pursued his motion to suppress. He alleged there was neither
a constitutional nor a statutory basis upon which he could
have been arrested; so, as a result, his arrest had been
unlawful. If his arrest were unlawful, the contraband
obtained in the search incident to arrest would be
"fruit of the poisonous tree" and therefore subject
district court conducted a hearing on Clarke's motion.
Following testimony from Deputy Hanson and Clarke, the
district court found that probable cause existed for
Clarke's arrest. The district court also found the arrest
permissible under both of the applicable constitutional
provisions (U.S. Const. amend. IV and Idaho Const. art. 1,
§ 17) and under the applicable Idaho statute, Idaho Code
case proceeded to trial. Shortly before trial, the State
dismissed the battery charge for lack of evidence. Clarke was
tried on the remaining charges. A jury convicted him of
felony possession of a controlled substance
(methamphetamine), misdemeanor possession of a controlled
substance (marijuana), and misdemeanor possession of drug
paraphernalia. Clarke appeals, alleging the district judge
erred in denying his motion to suppress and that the deputy
prosecutor engaged in misconduct during closing argument that
resulted in an unfair trial.
appeal advances claims that his arrest for a misdemeanor
committed outside the presence of the officer was
unconstitutional under both the federal and state
constitutions and that the prosecutor's comments during
closing argument constituted prosecutorial misconduct.
Because we find Clarke's constitutional argument to be
dispositive, we do not reach his remaining arguments.