concurring in the result.
Because my misgivings with this case were not addressed by counsel on appeal, I have concurred in the Court’s disposition of the issues raised and addressed in the Court’s opinion. At the same time, the record, if closely perused, reveals that the defendant’s conduct was not criminal; hence he was not properly charged, and the Court, if so disposed, could sua sponte raise and address the issue. State v. Cariaga, 95 Idaho 900, 904, 523 P.2d 32, 36 (1974) (“[n]either can this Court ignore the issue because it has not been assigned as error in the original briefs”); see State v. Otto, 102 Idaho 250, 258, 629 P.2d 646, 654 (1981) and separate opinion of Bistline, J., dissenting. However, it may be that Cariaga and Otto were big cases, and this one is not so seen.
It is in order, however, to relate several observations with the hope that it will provide further guidance to all Idaho police officers confronted by similar situations.
Initially, it is to be noted that officers Dedrick and Von Puckett’s actions are commendable. Their first contact with the defendant resulted in an automobile pursuit which apparently by exercise of good judgment did not turn into a high-speed chase— the officers determining minor traffic infractions were» not worth the risk of injury to persons or property. Media reports of high-speed automobile chases resulting in the injury or death' of the parties engaged in the chase or innocent bystanders have been all too prevalent in recent years. Under these circumstances, the officers’ decision that the defendant could be located the following day and that the incident did not justify extraordinary procedures for apprehension was certainly admirable. I believe, however, the officers should have exercised that same good judgment at the time of their second contact with the defendant that evening.
Faced with an uncooperative traffic violator following their coincidental meeting with Mr. Whelan later that night at the Gem County Sheriff’s office, Officer Dedrick insisted the defendant sign the uni*657form citations issued for the traffic violations witnessed earlier by the officers. By his own testimony, Officer Dedrick twice informed the defendant: “[Yjou’re going to sign the citation or you’re not leaving.” The ultimatum brought on the scuffle which ensued when the officers forcibly resisted his attempt to leave (which allegedly constitutes the basis for the charge of resisting an executive officer in the performance of his duty, I.C. § 18-2703). The defendant’s reaction to Officer Dedrick’s demand is not out of the ordinary, see State v. Berlin, 95 Idaho 225, 506 P.2d 122 (1973), even though those of more docile temperament often do yield to authority backed by potential force. The officer had no authority to confine the defendant to the sheriff’s office until he signed the Uniform Citation. Having precipitated the scuffle in the attempt to restrain defendant from escaping unlawful detention, the officer ought not to have compounded the bizarre affair by making an arrest arising out of lawful resistance.
This case is on a par with State v. McNary, 100 Idaho 244, 596 P.2d 417 (1979), in which an apparently intoxicated individual was driven to his parked automobile by a police officer. When the individual left the police vehicle and drove to his residence in his own automobile the officer arrested him for driving under the influence of intoxicating beverages or drugs in violation of I.C. § 49-1102. 'The incident also led to charges of carrying a concealed weapon, I.C. § 18-3302, and obstructing an officer, I.C. § 18-705, being filed against the defendant, and produced questionable case law making inroads on the rights of citizenry to protect themselves. See dissenting opinions of Bistline and McFadden, JJ., 100 Idaho at 248-55, 596 P.2d at 421-28.
In both McNary and the case at bar, the officers’ actions played a major part in initiating the incidents from which charges were filed against the defendants. In a McNary situation, any officer who picks up an individual who is apparently intoxicated and unable to find his own car, and then transports him to his vehicle and watches him drive away will obviously have crossed the threshold of good judgment. Likewise, in the present situation when the defendant declined to sign the Uniform Citation, Officer Dedrick was not entitled to restrict the defendant’s freedom of movement, but rather should have sought an arrest warrant, as is clearly the contemplation of the law.
Certainly the defendant might have been more tractable; the officer undoubtedly needed only guidance on performing his duties. Considering that the defendant had not been placed under arrest for the traffic violations, Officer Dedrick should not have assumed that he could impinge upon defendant’s freedom. Indeed, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person .... ” Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 1880, 20 L.Ed.2d 889 (1968) (as quoted in United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975)), and the protection of the fourth amendment is invoked. Although the typical “seizure” situation involves issues of “probable cause” and “reasonable suspicion” to believe a crime has been or is about to be committed, see generally Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, in this instance the officer had clearly witnessed the traffic offense and had authority to arrest the defendant at the time. Oleson v. Pincock, 68 Utah 507, 251 P. 23 (1926). I.C. § 19-603. However, at the sheriff’s office, the defendant not having been arrested, he was under no obligation to sign the citation, and was free to go his own way, and his attempt to leave could not be lawfully interfered with.
I.C. § 49-11101 implies that a misdemeanor defendant who refuses to sign a *658traffic citation can be detained and taken before a magistrate, but such clearly contemplates that such detention will be at the time of the offense — not six weeks later, not six months later, nor six hours later. It is an arrest for a misdemeanor which has just taken place “in his presence.” I.C. § 19-603(1).
. I.C. § 49-1110 in pertinent part reads as follows:
“When person must be taken immediately before a magistrate. — Whenever any person is halted by a police officer for any violation of this act not amounting to a felony, he shall be taken without unnecessary delay before the *658proper magistrate as specified in section 49-1115 in any of the following cases:
“2. ... [W]hen the person is issued a traffic citation by an authorized person and refuses to give his written promise to appear in court as hereinafter provided.”