University of Idaho College of Law

Gunder, Jessica R

Last in Line: Vaccine Scarcity and the Americans with Disabilities Act

Rumel, John E.

English

Promises Made, Promises Broken: The Anatomy of Idaho’s School Funding Litigation

Irving, Patrick

Idaho Law Review 
Volume 57 Number 3 Article 2 
November 2022 
The Power of Prisontation 
Patrick Irving 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/idaho-law-review 
Recommended Citation 
Patrick Irving, The Power of Prisontation, 57 IDAHO L. REV. (2022). 
Available at: https://digitalcommons.law.uidaho.edu/idaho-law-review/vol57/iss3/2 
This Article is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for 
inclusion in Idaho Law Review by an authorized editor of Digital Commons @ UIdaho Law. For more information, 
please contact annablaine@uidaho.edu. 
THE POWER OF PRISONTATION 
PATRICK IRVING 
Once transferred to a private out-of-state prison, my inmate population’s 
concerns were dutifully ignored. With our resolution attempts blatantly 
obstructed—from insisting we pay for public records in Idaho for an understanding 
of the policies in Texas, to actually withholding the forms for filing a grievance—it 
was easy to feel that our rights were suppressed. Following months of protest and 
several disruptions, we couldn’t even get fed with utensils that had been washed 
with soap. 
Deciding to seek outside assistance, the first place I tried was my ACLU. They 
provided our DOC’s policies and public record responsibilities and stressed the 
importance of exhausting all grievances. 
Having processed several that lacked in response, I had to weigh the time and 
money needed to litigate an intervention, with a limited budget and no 
understanding of law. It made more sense to pull from my experience in network 
development and innovate a platform for coordinated reproach. 
After gathering contacts, I reached out to the media—by press-releasing a 
book drive without being asked. Because it’s hard to have apathy for the offender’s 
story, I only intimated the benefit of a library with books: without visits, rec, church, 
or programs, books were all that we had to leave better than we came—and there 
were, unfortunately, not enough to go around. 
These communications coincided with others, and the media soon requested 
interviews for coverage. Mine took place on the phone from Solitary Confinement, 
due to being disciplined for “creating a disruption” (a minor offense). But I avoided 
focusing on personal inconvenience and related the experiences affecting our 
group. 
When the story appeared, our DOC downplayed our complaints: Politicians 
described a “new-prison smell,” while insinuating our concerns were the 
manipulation of criminals. It was damage control, and easy to counter: with 
documentation of avian droppings, rodent bodies, and a basic lack of sanitary 
implements, along with toilet paper shortages, food service issues, and the bug 
infestation to which we arrived. Grievances of each found a reporter. That was how 
I voiced my retort. (Though those documents didn’t make news, they provided 
gatekeepers insight as to who were the fibbers). 
It was while rifling through my communications from Solitary Confinement 
that I realized they could be used to narrate a story. So I fashioned my Inmate 
Concern Forms, letters, and grievances into an exhibit of our ridiculous struggles. 
Taking shape as a book, it read something like this: 
Idaho prisons overcrowded…private prison contract…Mexican border…no 
toilet paper…no disciplinary due process…see how they prevent us from trying to 
grieve…these instructions in the Inmate Handbook are completely irrelevant to 
facility operations…the battle’s just begun. 
I asked my father to upload it on the searchable Web, and he procured a 
platform to showcase my materials. 
Seeking out to gather more artifacts, I initiated communications to fill in the 
blanks. Logging as much as I could on our triplicate forms, I avoided commentating 
 IDAHO LAW REVIEW VOL. 57 
 
500 
on what people should think: Red tape has a way of speaking for itself, and people 
should arrive at ideas by way of their own thought. 
Upon leaving Ad-Seg, I collected signatures and affidavits from the General 
Population, in attempt to capture our fight for the easiest fix: Wash our dishes with 
dish soap or give us the soap to wash them ourselves. 
What should have been easy predictably was not and required a slew of 
information that most people didn’t know (facility staff included). The most 
important of which, according to our facility’s compliance officer, was local 
standards set by the Texas Commission on Jail Standards. Other states use their 
DOC, a Prison Oversight Committee, or a similar monitor for private prison 
contracts. The Texas Commission on Jail Standards (TCJS) wanted $40 to send their 
Minimum Jail Standards, but my father downloaded them and mailed them for free. 
With an understanding of their protocol, I sent presentations that sought an 
intervention. But I didn’t stop with the TCJS, I wrote the local Public Health 
Department too. And when both failed to act, I went to the State Health 
Department, and the Inspector General of Health and Human Services, and 
complained how the other agencies wouldn’t respond. And then I sent that 
complaint to the Center for Disease Control and Prevention, with copies of all for 
the Department of Justice, media, and ACLUs. Closing the circle, back to the TCJS, 
where I presented copies of the letters I wrote everyone else—signatures, affidavits 
and all. 
The TCJS, now knowing they had an audience, allocated more attention than 
the rubber stamp used prior. 
As a result, we got the dish soap. And the next week they moved me to an 
Idaho Max. That’s when my project really came to life: I’ve done nothing but 
present and send letters since! 
But where costs for postage and copies add up quick, I now make copies once, 
upload them online, and with a minimum budget, send requests like this: 
Please familiarize yourself with [description of violations] at [name and 
place of facility] by viewing the documents made available at [insert link 
to profile or site]. If you are interested in contributing to our effort or 
highlighting malfeasance, we encourage you to share the link with 
someone you know. 
I write media and legislators, lawyers and advocates, friends and families and 
strangers too. I’ve continued to present for my fellows in Texas, while presenting 
the issues in Idaho as well. I now post newsletters and network requests, and I 
present my creative writing for fun. But most importantly, as a contributor to the 
historical record, I can ensure the retaliation I faced standing up for others won’t 
be forgotten anytime soon. 
So, here’s how you can utilize a platform that’s already been built: Ask 
someone to upload your scans to a social outlet, where they’ll optimize 
searchability by creating a group. Naming the group properly and tagging the scans 
will attract a network of offender families and researchers. Use these contacts to 
collect and share documents. This helps establish patterns and increases the 
potential to litigate with success. 
2021 THE POWER OF PRISONTATION  
 
 
501 
One might even find litigation unnecessary with this model, as official 
behavior changes when observed. Because when officials and their appointees 
don’t hold each other accountable, it’s likely they won’t be official for long. 
Let your efforts range from individual-minimal to outside-group-assist, and 
adjust as you go, depending on momentum. Motivation and a goal–plus letter-
writing gear with a copy of your grievance–is all that’s ever needed to start. 
I continue refining my method from the comfy confines of Solitary 
Confinement, which should tell you that this can be done from anywhere. Just be 
sure to present with a cool, calm head, if you want to rep for your peeps in the 
general pop. 
 


The Power of Prisontation

Robison, Jason

McKinney, Matthew

Vigil, Daryl

Community in the Colorado River Basin

Hammer, Dixon S.

Hydrokinetic Development within Irrigation District Canals Provide a Unique Opportunity to Lessen the Dependence on Carbon-Based Energy Sources

Montagnon, Nadège

The Recent Idaho Supreme Court Ruling on the Reserved Rights of the Coeur d’Alene Reservation: Analysis of the Consistency of the State Court Case with Federal Law on Reserved Water Rights

Cover, Aliza Plener

Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis

Mendez, Cristina

Selbin, Jeffrey

Tupper, Gus

Blood from a Turnip: Money as Punishment in Idaho

Walker, Lorenn

Kobayashi, Leslie

Lum, Jeannie

Kapilipono: A U.S. District of Hawai’i Specialty Court Pilot Project

Jones, Dee

Idaho Law Review 
Volume 57 Number 3 Article 17 
November 2022 
State v. Clarke: Down the Road 
Dee Jones 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/idaho-law-review 
Recommended Citation 
Dee Jones, State v. Clarke: Down the Road, 57 IDAHO L. REV. (2022). 
Available at: https://digitalcommons.law.uidaho.edu/idaho-law-review/vol57/iss3/17 
This Article is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for 
inclusion in Idaho Law Review by an authorized editor of Digital Commons @ UIdaho Law. For more information, 
please contact annablaine@uidaho.edu. 
STATE V. CLARKE: DOWN THE ROAD* 
DEE JONES* *  
           TABLE OF CONTENTS 
I. INTRODUCTION ................................................................................................. 869 
II. FACTS ................................................................................................................ 869 
III. PROCEDURAL HISTORY .................................................................................... 870 
IV. THE IDAHO SUPREME COURT’S DECISION ...................................................... 870 
 
I. INTRODUCTION 
The 2019 decision of State v. Clarke1 sent shockwaves through the Idaho legal 
community.2 That summer, the Idaho Supreme Court held that Idaho law 
enforcement officers may not make warrantless arrests for any misdemeanor 
occurring outside their presence — even if they have probable cause to believe the 
crime was committed.3  
II. FACTS 
On August 1, 2016, Taylor Dan reported to a Kootenai County Deputy Sheriff 
that she had been harassed and groped by a man later identified as Peter Clarke.4 
Dan alleged that earlier that day, Clarke made unwanted passes at her.5 According 
to Dan, Clarke not only vocally harassed her, but also grabbed her butt.6 After this 
encounter, Dan alerted authorities, provided a description of Clarke, and advised 
the sheriff’s deputy that she wanted to pursue charges.7 Shortly thereafter, the 
deputy apprehended Clarke.8  
 
* This article was originally written in early 2020. The Idaho Law Review published the article in 
its online Spotlight Edition in May 2021 and is republishing now in November 2021. Since the time of 
writing, other significant cases under the umbrella of Clarke have been litigated. See, e.g., Reagan v. 
Idaho Transp. Dep’t, No. 47865, at *1, 2021 WL 1096672 (Idaho Mar. 23, 2021); State v. Sutterfield, 484 
P.3d 839, 168 Idaho 558 (2021); State v. Amstutz, 492 P.3d 1103, 169 Idaho 144 (2021).  
** Dee Jones graduated from the University of Idaho College of Law in May 2021. He sincerely 
thanks everyone who helped in the editing process for this piece.  
1. State v. Clarke, 446 P.3d 451, 165 Idaho 393 (2019). 
2. Look no further than the plethora of articles analyzing the Idaho Supreme Court’s decision. See, 
e.g., Sean Coletti, State v. Clarke Didn’t Have to End This Way, POST REGISTER (July 7, 2019), 
https://www.postregister.com/opinion/guest_column/state-v-clarke-didn-t-have-to-end-this-
way/article_c88281c2-bbdc-5a64-b192-4f2307c6306a.html; Tommy Simmons & Emily Lowe, How the 
Supreme Court’s Misdemeanor Arrest Ruling Is Playing out in the Treasure Valley, IDAHO PRESS (Aug. 24, 
2019), https://www.idahopress.com/news/local/how-the-supreme-court-s-misdemeanor-arrest-
ruling-is-playing/article_bc73b5e9-44f8-5281-88cc-23eafb0aac19.html; Chuck Peterson, Arresting 
Development – That Warrantless Misdemeanor Arrest May Violate the Protections of the Constitution, 
PETERSON L. OFFS.: IDAHO CRIM. DEF. BLOG (Sept. 30, 2019), 
https://www.idahocriminaldefenselaw.com/2019/09/search-and-seizure/arresting-development-that-
warrantless-misdemeanor-arrest-may-violate-the-protections-of-the-constitution/.  
3. Clarke, 446 P.3d at 457, 165 Idaho at 399. 
4. Id. at 452, 165 Idaho at 394. 
5. Id.  
6. Id. at 453, 165 Idaho at 395. 
7. Id.  
8. Id.  
870 IDAHO LAW REVIEW VOL. 57 
 
Although Clarke admitted to interacting with Dan and grabbing her in the way 
she described, Clarke insisted the touching was consensual.9 However, because the 
deputy determined probable cause existed — based on Dan’s complaint and 
Clarke’s admission — the deputy arrested Clarke for misdemeanor battery.10 He 
then searched Clarke,11 discovering drug paraphernalia, marijuana, and 
methamphetamine.12  
III. PROCEDURAL HISTORY 
The events of August 1, 2016 prompted Clarke to seek suppression of the 
evidence obtained during the search incident to his warrantless arrest based on two 
theories: there was neither (1) a constitutional basis nor (2) any statutory ground 
to justify the police conduct.13 The district court conducted a hearing and then 
denied the motion.14 The state dismissed the battery charge due to lack of evidence, 
but a jury convicted Clarke on the drug charges.15 Clarke appealed, arguing in part16 
that, because the misdemeanor was committed outside the presence of law 
enforcement,17 arresting him without a warrant was a violation of the constitutions 
of the United States and Idaho.18  
IV. THE IDAHO SUPREME COURT’S DECISION 
On appeal, Clarke focused on the proposition that at the time the Idaho 
Constitution was adopted, all existing law prohibited warrantless arrests for 
misdemeanors committed outside the presence of a police officer.19 The Idaho 
 
9. Clarke, 446 P.3d at 453, 165 Idaho at 395. 
10. Id.  
11. Id. at 454, 165 Idaho at 396. For a deeper discussion of the search incident to arrest doctrine 
— an exception to the Fourth Amendment’s prohibition against warrantless arrests, see Terry v. Ohio, 
392 U.S. 1 (1968). See also State v. Green, 354 P.3d 446, 448–49, 158 Idaho 884, 886–87 (2015), 
abrogated by State v. Clarke, 446 P.3d 451, 165 Idaho 393 (2019) (highlighting that officers are allowed 
to search the suspect’s person and the area within the suspect’s wingspan); Peterson, supra note 2 
(opining that the real issue in this case might have been the search: “I don’t think [this case] will likely 
change many outcomes.”).  
12. Clarke, 446 P.3d at 453, 165 Idaho at 395. 
13. Id.  
14. Id.  
15. Id.  
16. Clarke advanced two claims on appeal: (1) unconstitutional arrest and (2) prosecutorial 
misconduct. Id. The Idaho Supreme Court found Clarke’s first claim to be dispositive and thus did not 
reach the second claim. Id. at 458, 165 Idaho at 400. 
17. Clarke, 446 P.3d at 454, 165 Idaho at 396 (recognizing that until 1979, in Idaho, warrantless 
arrests were permitted in only two circumstances: (1) if there was probable cause to believe a felony 
had been committed or (2) if a misdemeanor was committed in the presence of an officer); see also, 
e.g., State v. Polson, 339 P.2d 510, 513, 81 Idaho 147, 152 (1959); State v. Conant, 153 P.3d 477, 479–
80, 143 Idaho 797, 799–800 (2007).  
18. Clarke, 446 P.3d at 454, 165 Idaho at 396 (highlighting that Clarke couches his claim under 
both of the applicable constitutional provisions, U.S. CONST. amend. IV and IDAHO CONST. art. I, § 17, Idaho 
case law, and the predecessor to IDAHO CODE § 19-603(6) (2021)).  
19. Clarke proposed that State v. Green stood for the idea that Title III was incorporated into the 
Constitution and should be viewed in unison. Clarke, 446 P.3d at 454, 165 Idaho at 396 (citing Green, 
354 P.3d at 450, 158 Idaho at 888).  
2021 STATE V. CLARKE: DOWN THE ROAD 871 
 
Supreme Court ultimately sided with Clarke.20 The Court, however, dialed back a 
statement it made in a 2015 case that Idaho’s constitution incorporated the 
principles of the common and statutory law existing at the time.21 Rather, according 
to the Court, when analyzing the question of whether the law that existed at the 
Constitution’s creation was incorporated into the constitution, the foundational 
inquiry is to analyze the framers’ intent.22  
The Court reasoned that the framers were silent on Article I, section 17, which 
establishes Idaho’s arrest warrant requirement.23 Accordingly, the Court turned to 
Idaho case law.24 It then reviewed centuries of common law criminal practices and 
cases decided around 1890.25 Ultimately, the Court supported its decision by citing 
multiple cases that ruled against officers performing warrantless arrests for crimes 
that were not felonies.26  
The Court held, in agreement with common law, that “the framers of the 
Idaho Constitution understood that Article I, section 17 prohibited warrantless 
arrests for . . . misdemeanors” committed outside the presence of law 
enforcement.27 Thus, Clarke’s arrest was unconstitutional, and his conviction was 
vacated.28  
 
20. Id. at 458, 165 Idaho at 400 (vacating Clarke’s judgment of conviction).  
21. Id. at 455, 165 Idaho at 397. 
22. Id. (reasoning that “[t]o hold otherwise would elevate statutes and the common law that 
predate the Constitution’s adoption to constitutional status”). 
23. Id. at 455, 165 Idaho at 397. 
24. See id. (citing State v. Creech, 670 P.2d 463, 493, 105 Idaho 362, 392 (1983); Toncray v. Budge, 
95 P. 26, 34–35, 14 Idaho 621 (1908) (reasoning that, in absence of record, the court must examine the 
language of the constitution “in the light of conditions as they existed”)).  
25. Clarke, 446 P.3d at 455–57, 165 Idaho at 397–99. 
26. Id. at 456, 165 Idaho at 398. 
27. Id. at 457, 165 Idaho at 399 (highlighting the seriousness of domestic violence but 
nevertheless deeming section 19-603 unconstitutional as the statute’s policy goals are outweighed by 
the Idaho Constitution).  
28. Id. at 458, 165 Idaho at 400. 


State v. Clarke: Down the Road

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