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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 44443

STATE OF IDAHO,

 Plaintiff-Appellant,

v.

VICTOR GARCIA-RODRIGUEZ,

 Defendant-Respondent.

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Boise, February 2017 Term

2017 Opinion No. 63

Filed: June 14, 2017

Stephen Kenyon, Clerk

SUBSTITUTE OPINION, THE 

COURT’S PRIOR OPINION 

DATED APRIL 14, 2017 IS 

HEREBY WITHDRAWN.

Appeal from the District Court of the Fifth Judicial District of the State of Idaho,

Jerome County. Hon. Robert J. Elgee, District Judge.

The district court’s order granting Garcia-Rodriguez’s motion to suppress is

affirmed.

Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Kenneth K.

Jorgensen argued.

Eric Fredericksen, State Appellate Public Defender, Boise, for respondent. Maya

Waldron argued.

HORTON, Justice.

The State of Idaho appeals from the district court’s order suppressing evidence against 

Victor Garcia-Rodriguez. On April 10, 2014, Garcia-Rodriguez was pulled over after an Idaho 

State Police trooper witnessed Garcia-Rodriguez’s car briefly cross over the fog line while 

exiting Interstate 84. This stop ultimately led to Garcia-Rodriguez’s arrest. A search incident to 

arrest uncovered methamphetamine on his person, and Garcia-Rodriguez was charged with 

trafficking in methamphetamine and possession of paraphernalia. Garcia-Rodriguez filed a 

motion to suppress the evidence, which the district court granted. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
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In the early afternoon of April 10, 2014, Idaho State Police Trooper Steve Otto 

encountered Garcia-Rodriguez as both were driving eastbound on Interstate 84 near milepost 

168, south of Jerome. Garcia-Rodriguez exited the interstate. As he did so, Otto noticed the right 

tires of Garcia-Rodriguez’s car briefly cross over the right fog line of the exit ramp. GarciaRodriguez then activated his turn signals. Initially, he signaled a right hand turn before turning 

on his left hand blinkers. Garcia-Rodriguez turned left off of the exit ramp and onto Lincoln

Avenue. Otto testified that he was concerned that Garcia-Rodriguez was impaired or having 

vehicle issues. Otto followed Garcia-Rodriguez as he traveled down Lincoln toward a Shell gas 

station. After Garcia-Rodriguez signaled his indication to turn into the gas station, Otto turned on

his overhead lights and made a traffic stop.

Garcia-Rodriguez pulled into a parking spot at the gas station, and Otto parked directly 

behind him. Otto observed a Hertz rental sticker as he approached Garcia-Rodriguez’s car and

thus knew that it was a rental car. After Otto made contact with Garcia-Rodriguez, it became

immediately apparent that there was a language barrier. Otto told Garcia-Rodriquez he stopped 

him for driving over the fog line and asked him for identification. Garcia-Rodriguez presented a 

Mexican consular identification card with a Gooding address. Otto began questioning GarciaRodriguez about the car and insurance. He eventually asked Garcia-Rodriguez to exit the car 

because he felt Garcia-Rodriguez was acting nervous and avoiding the center console while 

searching for the papers Otto had requested.

Otto asked Garcia-Rodriguez to empty his pockets, and Garcia-Rodriguez took out a cell 

phone, wallet and a set of keys. Otto called for a Spanish-speaking officer and ran checks on 

Garcia-Rodriguez, but those checks did not return any information. Otto did not attempt to 

determine if Garcia-Rodriguez had ever previously failed to appear for a court appearance. Otto 

located someone to translate and asked Garcia-Rodriguez for consent to search his vehicle, 

which Garcia-Rodriguez gave. Otto searched the center console and found approximately 

$10,000 in cash inside of a shaving kit. Otto then placed Garcia-Rodriguez in handcuffs and 

placed him in the patrol car, but stated that Garcia-Rodriguez was not under arrest. Soon after,

four more officers arrived on the scene and began to discuss how to search the vehicle because 

Garcia-Rodriguez’s consent was no longer valid.

Eventually, a Spanish-speaking trooper arrived and, approximately 45 minutes after the 

traffic stop, advised Garcia-Rodriguez of his Miranda rights and began asking him questions
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about the money. Otto got his drug dog out of his patrol car and walked the dog around GarciaRodriguez’s car. Otto stated that his dog alerted but it was “really weak,” and no drugs were 

subsequently located in Garcia-Rodriguez’s car. Approximately 75 minutes after the stop, Otto 

arrested Garcia-Rodriguez for failure to purchase a driver’s license. Otto conducted a search 

incident to arrest and found methamphetamine in Garcia-Rodriguez’s front pants pocket.

On April 11, 2014, the State charged Garcia-Rodriguez with methamphetamine 

trafficking and possession of paraphernalia. On June 10, 2014, Garcia-Rodriguez filed a motion 

to suppress all evidence against him. The district court granted the motion, concluding that the 

initial stop, the continued detention and the eventual arrest were all unlawful. The State timely 

appealed. The Court of Appeals reversed the decision of the district court. We then granted 

Garcia-Rodriguez’s petition for review.

II. STANDARD OF REVIEW

“In cases that come before this Court on a petition for review of a Court of Appeals 

decision, this Court gives serious consideration to the views of the Court of Appeals, but directly 

reviews the decision of the lower court.” State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 

(2007). “This Court thus acts as if the case were on direct appeal from the district court.” State v. 

James, 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010). “In reviewing a district court order 

granting or denying a motion to suppress evidence, the standard of review is bifurcated.” Id.

(quoting State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009)). “This Court will 

accept the trial court’s findings of fact unless they are clearly erroneous.” Id. “However, this 

Court may freely review the trial court’s application of constitutional principles in light of the 

facts found.” Id.

III. ANALYSIS

The State argues that the district court erred by suppressing the evidence because the stop 

was justified by reasonable suspicion, the arrest was justified by probable cause, and the search 

of Garcia-Rodriguez’s person was proper as a search incident to arrest. Because we decide this 

case on the issue of probable cause for the arrest and the subsequent search incident to arrest, we 

do not consider the issue of the initial stop.

A. The State’s argument that the arrest and search incident to arrest were constitutional 

based on probable cause regardless of state law statutory limitations is not properly 

before this Court.
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Based on the evidence and testimony presented, the district court concluded that Otto did 

not have reasonable grounds to arrest Garcia-Rodriguez pursuant to Idaho Code section 49-1407 

for the misdemeanor charge of driving without a license under Idaho Code sections 49-301(1) 

and (8). The district court concluded: “The burden is on law enforcement to provide ‘reasonable 

and probable grounds’ to believe a misdemeanor traffic offender will not appear in court. It is 

insufficient for law enforcement to simply ‘disbelieve’ information presented by an offender in 

order to justify an arrest under Idaho Code 49-1407.” 

For the first time on appeal, the State argues that: “In this case Trooper Otto developed 

probable cause to believe that Garcia had no driver’s license, a violation of I.C. § 49-301(1). . . . 

This alone constitutionally justified Garcia’s arrest. Virginia v. Moore, 553 U.S. 164, 171-72 

(2008) (probable cause constitutionally justifies arrest regardless of state laws imposing 

additional requirements).” Garcia-Rodriguez argues that issue was not argued before the district 

court and; therefore, is not properly before this Court. The State responds arguing that “the issue 

of whether the ‘stop and search’ [was] constitutionally reasonable was raised by Garcia in his 

motion,” and “[t]he prosecutor did not have a duty to negate every legal claim proposed in the 

motion to suppress, only establish the facts showing the officer’s actions were reasonable.” The

State is incorrect.

“This Court will not consider issues raised for the first time on appeal.” Mickelsen Const., 

Inc. v. Horrocks, 154 Idaho 396, 405, 299 P.3d 203, 212 (2013) (quoting Clear Springs Foods, 

Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93 (2011)). “Issues not raised below will not 

be considered by this court on appeal, and the parties will be held to the theory upon which the 

case was presented to the lower court.” Heckman Ranches, Inc. v. State, By & Through Dep’t of 

Pub. Lands, 99 Idaho 793, 799–800, 589 P.2d 540, 546–47 (1979); Marchbanks v. Roll, 142 

Idaho 117, 119, 124 P.3d 993, 995 (2005); Frasier v. Carter, 92 Idaho 79, 82, 437 P.2d 32, 35 

(1968) (“We have held generally that this court will not review issues not presented in the trial 

court, and that parties will be held to the theory on which the cause was tried.”).

The State argues that once Otto had probable cause to believe that Garcia-Rodriguez was 

driving without a license in violation of Idaho Code section 49-301(1), Garcia-Rodriguez’ arrest 

did not violate the Fourth Amendment, despite the limitations that Idaho Code section 49-1407

imposes on arrests for certain misdemeanor violations of Idaho’s motor vehicle laws. Although 

we do not reach the merits of the State’s argument, we note that the State’s arguments are likely
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correct under the holdings of Virginia v. Moore, 553 U.S. 164 (2008), and State v. Green, 158 

Idaho 884, 354 P.3d 446 (2015). However, the State failed to advance this argument below, and 

it is not properly before this Court on appeal.

We have long held that “[a]ppellate court review is limited to the evidence, theories and 

arguments that were presented below.” Nelson v. Nelson, 144 Idaho 710, 714, 170 P.3d 375, 379 

(2007) (quoting Obenchain v. McAlvain Const., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 

(2006)); see also, Allied Bail Bonds, Inc. v. Cnty. of Kootenai, 151 Idaho 405, 413, 258 P.3d 340, 

348 (2011); Woods v. Sanders, 150 Idaho 53, 59, 244 P.3d 197, 203 (2010); Meyers v. Hansen, 

148 Idaho 283, 292, 221 P.3d 81, 90 (2009).

A review of the record of the proceedings before the trial court shows that the State 

consistently argued that Garcia-Rodriguez was arrested pursuant to Idaho Code section 49-

301(1) for driving without a license and that Otto reasonably concluded that Garcia-Rodriguez 

“would likely not appear in court, justifying [Garcia-Rodriguez’s] arrest pursuant to Idaho Code 

49-301 and 49-1407(1).” That position is set forth in the State’s Affidavit in Support of 

Complaint or Warrant for Arrest, the State’s Memorandum Opposing Defendant’s Motion to 

Suppress under the heading “Basis for the Arrest,” and in the State’s Response to Defendant’s 

Reply to State’s Opposition to Defendant’s Motion to Suppress, once again under the heading 

“Basis for the Arrest.” The State’s current argument that Idaho Code section 49-1407 is 

immaterial to the question of the constitutionality of the arrest is nowhere to be found.

The State contends that this Court should apply the correct legal analysis in reaching our 

decision on appeal, without regard for the arguments advanced before the trial court. It is true 

that “where an order of the district court is correct but based upon an erroneous theory, this Court 

will affirm upon the correct theory. This doctrine is sometimes called the ‘right result-wrong 

theory’ rule.” Idaho Sch. for Equal Educ. Opportunity v. Evans, 123 Idaho 573, 580, 850 P.2d 

724, 731 (1993) (internal citation omitted). While the State properly observes that this Court has 

corrected lower court decisions based on legal error, we did so when the lower court reached the 

correct result albeit by way of erroneous legal reasoning. This is not one of those situations. We 

decline to adopt a “wrong result-wrong theory” approach to reverse a lower court’s decision 

based on issues neither raised nor argued below. In territorial days, a sesquicentenary ago, this 

Court explained why: 
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It is for the protection of inferior courts. It is manifestly unfair for a party 

to go into court and slumber, as it were, on his defense, take no exception to the 

ruling, present no point for the attention of the court, and seek to present his 

defense, that was never mooted before, to the judgment of the appellate court. 

Such a practice would destroy the purpose of an appeal and make the supreme 

court one for deciding questions of law in the first instance.

Smith v. Sterling, 1 Idaho 128, 131 (1867). This requirement applies equally to all parties on 

appeal. Because the constitutionality of arresting Garcia-Rodriguez without regard for Idaho 

Code section 49-1407(1) was not argued before the district court, it is not properly before this

Court on appeal.

B. The State has waived its argument that Garcia-Rodriguez’s arrest was justified 

pursuant to Idaho Code section 49-1407(1).

As explained above, the district court concluded that Otto did not have reasonable and 

probable grounds to arrest Garcia-Rodriguez pursuant to Idaho Code section 49-1407 for the 

misdemeanor charge of driving without a license under Idaho Code sections 49-301(1) and (8). 

On appeal, the State simply contends: 

Moreover, Trooper Otto’s subsequent investigation revealed that Garcia was in 

this country illegally, had only Mexican consular identification, spoke little 

English, was not in law enforcement databases, was driving a car rented by 

someone else, and had bricks of cash Trooper Otto associated with drug 

trafficking. This gave him grounds to arrest under state law. I.C. §49-1407(1) 

(arrest for traffic misdemeanors allowed where “the person does not furnish 

satisfactory evidence of identity or when the officer has reasonable and probable 

grounds to believe the person will disregard a written promise to appear in 

court”).

The State makes no attempt to explain how or why the district court erred in its conclusion that 

Otto did not have reasonable and probable grounds to believe that Garcia-Rodriguez would 

disregard a written promise to appear in court.

“This Court will not search the record for error. We do not presume error on appeal; the 

party alleging error has the burden of showing it in the record.” Miller v. Callear, 140 Idaho 213, 

218, 91 P.3d 1117, 1122 (2004) (citation omitted).

We will not consider an issue not supported by argument and authority in the 

opening brief. Regardless of whether an issue is explicitly set forth in the party’s 

brief as one of the issues on appeal, if the issue is only mentioned in passing and 

not supported by any cogent argument or authority, it cannot be considered by this 

Court.
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Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (citations and quotations 

omitted). “A general attack on the findings and conclusions of the district court, without specific 

reference to evidentiary or legal errors, is insufficient to preserve an issue.” Id. Because the State 

has not presented this Court with argument or authority to support its argument, the State has 

waived this argument on appeal.

IV. CONCLUSION

We affirm district court’s order granting Garcia-Rodriguez’s motion to suppress.

Chief Justice BURDICK and Justices EISMANN, JONES and BRODY, CONCUR.

ON DENIAL OF PETITION FOR REHEARING

HORTON, Justice.

The State has petitioned for rehearing, explaining: “The [State] requests rehearing 

because this Court has never held that citing superseded authority on an issue before the trial 

court forecloses citing the correct authority on appeal.” In support of this contention, the State 

argues:

Idaho’s legal standard requiring compliance with state arrest statutes was 

superseded with regard to the Fourth Amendment by precedent of the Supreme

Court of the United States in 2008. [Virginia v. Moore, 553 U.S. 164, 178 

(2008)], (The Fourth Amendment “does not require the exclusion of evidence 

obtained from a constitutionally permissible arrest.”). Even so, the Idaho Court of 

Appeals was still applying this standard in 2011, in a case cited by the parties. See

[State v. Jones, 151 Idaho 943, 265 P.3d 1155 (Ct. App. 2011)]. The standard 

requiring compliance with state law for an arrest to be “lawful” for purposes of a 

search incident to arrest was not formally abandoned, regarding both the Fourth 

Amendment and the Idaho Constitution, until 2015. State v. Green, 158 Idaho 

884, 887, 354 P.3d 446, 449 (2015). 

As the above shows, when the state and the defendant briefed the issue in 

2013, and when the district court decided it, there were three Court of Appeals 

decisions on point regarding the legal standard applicable to the search incident to 

arrest exception, which decisions were consistent with long-standing precedent of 

this Court. The parties cited the relevant Idaho precedents and made their 

arguments based on those precedents. At the time, a superseding precedent by the 

Supreme Court of the United States existed, but had never been applied in the 

context of the legality of a search incident to an arrest that did not comply with 

state law.

(footnote omitted, emphasis added). The State’s brief in support of rehearing concludes:
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In this case both parties, and the district court, relied on Idaho Court of 

Appeals precedent applying a decades-old Idaho standard that held that the search 

incident to arrest exception required compliance with state arrest law. It was not 

clear at that time that this standard had been superseded by Supreme Court of the 

United States precedent, and in fact was not so held by an Idaho Appellate Court 

until more than a year after the district court’s suppression ruling. The state 

submits that it did not waive application of the correct legal standards governing 

the legality of a search incident to arrest by citing superseded standards to the 

district court under the facts and circumstances of this case. The state therefore 

requests rehearing on this issue.

(emphasis added).

The State’s factual assertion as to when this case was argued and decided by the district 

court is inaccurate. The proceedings before the district court did not take place in 2013. The 

Information was filed May 1, 2014. The motion to suppress was filed on June 10, 2014. The 

evidentiary hearing on the motion to suppress was held on June 13, 2014. The State’s 

memorandum in opposition to the motion was filed the same date. The defense reply to the 

State’s brief was filed on July 7, 2014. The State filed its response to the reply brief on July 22, 

2014. The parties presented their arguments to the district court on August 8, 2014, and the 

district court memorandum opinion on the motion was filed October 1, 2014.

The State’s legal premise is also inaccurate. The State’s discussion of the Court of 

Appeals’ decision in State v. Jones, 151 Idaho 943, 265 P.3d 1155 (Ct. App. 2011), is not well 

taken. The State argues in a footnote that in Jones, “[t]he Court of Appeals specifically declined 

to address the effect of Moore on Idaho law because it found that the arrest complied with the 

statute. Jones, 151 Idaho at 945 n.1, 265 P.3d at 1157 n.1.” This is a misreading of what took 

place.

There, “Jones filed a motion to suppress evidence, asserting the search violated her rights 

under the Fourth Amendment of the United States Constitution and Article I, Section 17 of the 

Idaho Constitution. . . .” Id. at 944, 265 P.3d 1156 (emphasis added). There is a footnote in Jones

which the State cites in its brief (but does not quote) which demonstrates that the Court of 

Appeals had a clear understanding of the effect of Moore on Idaho’s Fourth Amendment 

jurisprudence, but the doctrine of constitutional avoidance required the Court of Appeals to 

determine whether there had been a violation of Idaho Code section 49-1407:

Jones argues that this Court’s decision in State v. Foldesi, 131 Idaho 778, 

963 P.2d 1215 (Ct.App. 1998) provides a basis to hold that Idaho’s Constitution 

affords greater protection against unreasonable searches and seizures than federal 
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constitutional standards and has continuing viability despite the holding in 

Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (a 

warrantless arrest based on probable cause, even where the arrest violates state 

law, does not offend Fourth Amendment principles). Because we conclude that 

the arrest was authorized under Idaho law, we need not reach Jones’s 

constitutional question of whether Foldesi enlarges the scope of protection under 

the Idaho Constitution beyond that of the Fourth Amendment. See State v. Doe, 

140 Idaho 271, 273, 92 P.3d 521, 523 [2004] (“[W]hen a case can be decided 

upon a ground other than a constitutional ground, the Court will not address the 

constitutional issue unless it is necessary for a determination of the case.”).

State v. Jones, 151 Idaho 943, 945 n.1, 265 P.3d 1155, 1157 n.1 (Ct. App. 2011).

The State’s contention that no appellate court of this State had addressed this issue at the 

time of the hearing is equally flawed. Although we believe the State’s statement as to the timing 

of the proceedings before the district court is an inadvertent error, the effect is that the status of 

appellate jurisprudence at that time is misrepresented. One year before the proceedings in the 

district court, the Court of Appeals released its decision in State v. Branigh, 155 Idaho 404, 313 

P.3d 732 (Ct. App. 2013), review denied. 

In Branigh, the Court of Appeals applied the rule of law pronounced in Moore, and in so 

doing, categorically rejected the premise that violation of statutes or court rules could result in 

suppression of evidence. The Court of Appeals framed the issue as whether a violation of Idaho 

Criminal Rule 41(a) called for suppression of telephone records obtained by faxing a search 

warrant to a cell phone provider in Kansas, despite the rule’s territorial limitation. Id. at 411, 313 

P.3d at 739. The Court of Appeals concluded that it did not. Id. at 415, 313 P.3d at 743. The 

Court of Appeals began with this declaration: 

We find this argument to be without merit because the exclusionary rule requires 

suppression of evidence only when constitutional restraints on searches or 

seizures have been violated. Decisions of both the United States Supreme 

Court and the Idaho Supreme Court establish that the violation of state 

statutes in the conduct of a search or arrest does not justify suppression so 

long as constitutional standards are met.

Id. at 412, 313 P.3d at 740 (italics in original, bold added). Discussing Moore, the Court of 

Appeals stated: “The Supreme Court held that although the arrest was unlawful under state law, 

suppression was not warranted because the existence of probable cause for the arrest satisfied the 

Fourth Amendment.” Id. 

The Court of Appeals then observed that “Idaho Supreme Court authority comports with 

the foregoing federal court decisions.” Id. at 413, 313 P.3d at 741. The Court of Appeals cited 
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five decisions of this Court, discussing three at length. Id. at 413–14, 313 P.3d at 741–42. 

Significantly, the Court of Appeals discussed an earlier decision by this Court addressing a 

statutory violation as grounds for suppressing evidence: 

In State v. Zueger, 143 Idaho 647, 650, 152 P.3d 8, 11 (2006), a warrant 

was issued in violation of I.C. § 19-4406, which limits those who may sign a 

magistrate judge’s name to a warrant to the magistrate himself/herself or an 

authorized peace officer. The magistrate had authorized a prosecutor to sign the 

magistrate’s name to a warrant. The Idaho Supreme Court held that this error did 

not constitute a constitutional violation, stating:

In order to rise to the level of a constitutional violation, there must 

be a defect which calls into question the Constitution’s 

requirement of a finding of probable cause to justify issuance of 

the warrant. Article I, section 17 of the Idaho Constitution provides 

that ‘no warrant shall issue without a finding of probable cause....’ 

[A] mere procedural error, which does not implicate the 

defendant’s constitutionally protected rights, should not serve to 

invalidate the otherwise properly issued warrant....

Id. at 414, 313 P.3d at 742 (emphasis added). The Court of Appeals also cited our decision in 

State v. Skurlock, 150 Idaho 404, 405–07, 247 P.3d 631, 632–34 (2011), noting in a parenthetical 

that the case involved “a nighttime search was conducted, allegedly in violation of I.C. § 19-

4411 and I.C.R. 41(c)” and that this Court held that “suppression was not warranted because no 

constitutional violation was shown. Branigh, 155 Idaho at 414, 313 P.3d at 742. 

In summary, the Court of Appeals’ decision in Branigh squarely rejected the legal 

proposition that the parties litigated before the district court in this case more than a year before 

those proceedings took place. Because the State’s petition for rehearing is based upon factual and 

legal premises which are devoid of merit, it is denied. 

Chief Justice BURDICK and Justices EISMANN, JONES and BRODY, CONCUR.