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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48899

STATE OF IDAHO, )

)

 Plaintiff-Appellant, ) Boise, December 2021 Term

)

v. ) Opinion Filed: February 3, 2022

)

GREGORY WADE TOWNER, SR., ) Melanie Gagnepain, Clerk

)

 Defendant-Respondent. )

____________________________________)

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

Kootenai County. John T. Mitchell, District Judge.

The decision of the district court is reversed and Towner’s judgment of conviction 

is vacated. 

Eric D. Fredericksen, State Appellate Public Defender, Boise, attorney for 

Appellant. Kimberly Coster argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for Respondent.

Kenneth Jorgensen argued. 

_________________________________

BEVAN, Chief Justice.

This case comes to the Court on a petition for review from the Idaho Court of Appeals. 

Gregory Wade Towner, Sr., appeals from his conviction for possession of methamphetamine. The 

arresting officer found the contraband on Towner’s person during a warrantless search. Towner 

moved to suppress, arguing that the officer’s conduct violated his constitutional rights against 

unreasonable search and seizure. The district court denied Towner’s motion after concluding that 

the officer’s seizure and subsequent search were a reasonable exercise of the officer’s community 

caretaking function. Towner appealed and the Idaho Court of Appeals affirmed. This Court granted 

Towner’s petition for review. For the reasons below, we reverse the district court’s denial of 

Towner’s motion to suppress and remand the case for further proceedings. 

I. FACTUAL AND PROCEDURAL BACKGROUND
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On August 9, 2018, Officer Johns was on patrol when he received a call that someone was 

on the side of the road who appeared to be hallucinating. Officer Johns pulled into a nearby gas 

station and monitored a male for about thirty seconds to a minute. He recognized the man as 

Towner from previous interactions. Officer Johns testified that he observed Towner standing on 

the side of the road, yelling and screaming at the sky, and making very aggressive actions towards 

the air like he was arguing with somebody, but nobody else was there. 

Officer Johns exited his patrol car and contacted Towner. Towner was dressed in a short 

sleeve t-shirt and long pants, wearing a hat, and sipping on a soda as he talked to Officer Johns. 

Towner told Officer Johns that he had been off his medication for a while, and suggested “maybe 

I could go to the hospital . . .” Officer Johns asked if Towner wanted to go to the hospital and he 

responded “sure.” Towner said he was feeling “kind of out of it” but that he wasn’t thinking about 

hurting himself or somebody else. Towner admitted he was depressed but stated that he had never 

attempted suicide and had never thought about hurting himself. Towner then claimed there were 

invisible wires covering him that were going to “send [him] to hell.”

As Officer Johns and Towner began walking toward the patrol car, Towner suggested “I 

don’t know, maybe I’m good,” and stated that he needed to get his truck. Towner asked to call a 

friend to see if he could get his truck. Towner stated he needed a ride to the shop and then called

someone on his cellphone. Towner asked Officer Johns if he could give him a ride to his truck, 

which he stated was located on Government Way by Pawn 1. Officer Johns answered “probably” 

and Towner ended the phone call. 

Officer Johns confirmed Towner was not using any drugs or alcohol at the time and then 

asked Towner where he was staying. Towner stated that he had been evicted from where he was 

staying at First Street so he planned to go to a motel, however, they were all full. During the 

encounter, Towner continued to move his hands in the air and reference the invisible wires around 

him. Moments later, Officer Johns told Towner that he had to put him in handcuffs before he could 

go in the back of the patrol car. Officer Johns placed Towner in handcuffs and stated: 

So here’s the deal Greg, I’ve got a lot of concerns for you being out here, with you 

thinking that these wires are out here, there’s no wires out here, man. And you’re 

thinking that they’re trying to send you to hell. And you agree that you need to be 

on your meds right? So I’m taking you to the hospital to go talk to somebody first. 

I don’t wanna just send you over to a friend’s house. We’ve been dealing with you 

a whole bunch and when we talked to the people at First Street they were really 

worried about you. . . . 
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Officer Johns conducted a pat search of Towner and he felt “a plastic object in [the small 

coin area of Towner’s pant pocket] that had – that felt fairly hard, and at the time [he] believed it 

was a replacement razor blade head with the plastic cover still on it.” Officer Johns removed the 

item and realized it was a plastic bag that was tightly rolled up with a white crystalline powder 

substance that, through his training and experience, Officer Johns identified to be 

methamphetamine. Officer Johns put Towner in the back of the patrol car and drove him to the 

Kootenai County jail, not a hospital.

On August 10, 2018, the State filed a criminal complaint charging Towner with possession 

of a controlled substance. Towner moved to suppress, arguing that Officer Johns’ conduct violated 

his constitutional rights against unreasonable search and seizure. The State filed a memorandum 

in opposition, alleging that the search was justified under the community caretaking function, 

specifically Idaho Code section 39-307A(b) [Protective custody under the Alcoholism and 

Intoxication Treatment Act]. 

At a hearing on Towner’s motion to suppress, Officer Johns testified that he was trained

that he could take a person into protective custody “[i]f somebody is a threat to themselves or the 

general public or gravely disabled.” Officer Johns testified that he believed Towner was a threat 

to himself because: 

[T]owner was having these conversations with people that were not there, [Officer 

Johns’] prior knowledge of knowing that Mr. Towner does have mental health 

issues, as well as the potential that he [was] using illegal narcotics, combined 

together, [Towner’s] continued freedom [Officer Johns] felt was in jeopardy to 

himself being that he didn’t have a house to go to.

At that time it was August so it was very hot out. [Towner] wasn’t sure 

where his vehicle was even kept at, so he had nowhere to go for safety at the time. 

The invisible wires that he thought were going to try to kill him and cause harm to 

him that obviously weren’t there; speaking to him, he even said that he needed to 

go to the hospital and needed to get back on his medications, so all of that taken 

together, [Officer Johns] believed that [Towner] was a threat to himself if he 

continued to have free reign, and so that’s when [Officer Johns] placed [Towner]

in protective custody. 

Officer Johns also testified that he believed Towner was a threat to the general public 

because as he approached, Towner went to step out into the street without looking to see whether 

vehicles were coming. Officer Johns explained that once Towner was detained, he conducted a 

search to make sure he didn’t have any weapons or items that could harm himself, Officer Johns, 
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or the hospital staff. Officer Johns testified that it was normal practice to search someone whenever 

they are taken into custody. 

The State argued that under Idaho Code section 39-307A, which allows officers to take an 

individual incapacitated by drugs or alcohol into protective custody, Officer Johns acted 

reasonably by searching Towner to ensure he had no hazardous items on his person before placing 

him in the patrol car. Towner countered that Officer Johns’ conduct was not justified under Idaho 

Code sections 66-329 or 66-317. Towner asserted that pursuant to these statutes, Officer Johns had 

to find that he was a danger to himself or others, or was gravely disabled before he could take him 

into protective custody. Towner argued that there was no substantial evidence to support such a 

finding. Thus, Towner asserted there was no justification for Officer Johns’ seizure or subsequent 

search. 

Ruling from the bench, the district court denied Towner’s motion to suppress. First, relying 

on Officer Johns’ testimony that his initial concerns were that Towner was hallucinating because 

of mental health issues, the district court found that Idaho Code section 39-307A did not apply. 

That said, the district court found that the community caretaking function did apply. The court 

stated that it was required to look to the totality of the circumstances, and whether the intrusive 

action of the police was reasonable in view of all the circumstances. The court found that up until 

the time Towner was searched, the intrusion was minimal: 

The discussion was very cordial. 

There is no doubt after viewing the video that Mr. Towner is hallucinating. 

He is calm. He is coherent, but as Mr. - - Officer Johns, rather testified, is not 

speaking or responding in relevant fashion, and that’s certainly the case, so he’s 

having difficulty, and Mr. Towner even said that he - - that it would be a good idea 

to go to the hospital to get back on his meds, admitted on more than one occasion 

that he hadn’t been on his meds, so I don’t believe that I need to get into the analysis 

of 66-329 and 66-317 to decide whether the community care-taking function 

exception exists in this case. 

I think, based on the totality of the circumstances, it was reasonable for 

Officer Johns to believe Mr. Towner needed some assistance, needed to get to the

hospital, and needed the help that is provided at a hospital, and so the community 

care-taking function exists in this case.

As for the reasonableness of the search of Towner’s pockets, the district court provided 

two alternative rationales. First, the court found Officer Johns had a right to conduct a weapons 

pat search before placing him in the patrol car. Second, the court cited the unpublished Court of 
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Appeals decision State v. Burns, No. 43114, 2016 WL 4938244 (Idaho Ct. App. Sept. 12, 2016), 

and reasoned that the search was not limited to a weapons search for officer safety, speculating 

there could be “other reasons” to conduct a search to get to the bottom of why Towner was 

hallucinating. 

On November 9, 2018, the district court entered an order denying Towner’s motion to 

suppress. The case proceeded to trial, where the district court admitted the evidence found in 

Towner’s coin pocket. On November 19, 2018, the jury found Towner guilty of possession of a 

controlled substance. 

Towner filed a timely notice of appeal. The case was originally assigned to the Court of 

Appeals. State v. Towner, Docket No. 47396, 2021 WL 915426 (Ct. App. Mar. 10, 2021). The 

Court of Appeals affirmed the district court’s denial of Towner’s motion to suppress after 

concluding that under the totality of the circumstances, Officer Johns’ seizure and subsequent 

search were a reasonable exercise of Officer Johns’ community caretaking function. Id. at *4.

Towner petitioned for review, which this Court granted. 

II. STANDARD OF REVIEW

“When reviewing a case on petition for review from the Court of Appeals this Court gives 

due consideration to the decision reached by the Court of Appeals, but directly reviews the decision 

of the trial court.” State v. Smith, 168 Idaho 463, 483 P.3d 1006, 1014 (2021) (quoting State v. 

Gonzales, 165 Idaho 667, 671, 450 P.3d 315, 319 (2019)).

When this Court reviews a district court’s order granting or denying a motion to 

suppress, the standard of review is bifurcated. This Court will accept the trial 

court’s findings of fact unless they are clearly erroneous. Even so, this Court may 

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

facts found.

Id. (citations and quotations omitted). 

III. ANALYSIS

A. Towner properly preserved his argument for appeal.

On appeal, Towner argues that the district court erred by ignoring Idaho Code section 66-

326(1). Section 66-326 defines the circumstances under which a peace officer has a right to take

an individual into custody for mental health reasons without a hearing. The State suggests that the 

district court did not “ignore” section 66-326(1) because Towner never cited it below, thus, its

applicability was not preserved for appeal. 
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In general, “substantive issues may not be raised for the first time on appeal.” State v. 

Neimeyer, 169 Idaho 9, 490 P.3d 9, 13 (2021) (quoting State v. Gonzalez, 165 Idaho 95, 98, 439 

P.3d 1267, 1270 (2019)). But so long as the substantive issue is properly preserved, a party’s 

appellate argument may evolve on appeal. State v. Hoskins, 165 Idaho 217, 222, 443 P.3d 231, 

236 (2019) (internal citation omitted). Specifically, this Court has allowed a party to supplement 

the argument that it made in the lower court with citation to relevant statutes dealing with the same 

subject on appeal. Id. (citing Ada Cnty. Highway Dist. v. Brooke View, Inc., 162 Idaho 138, 142, 

n.2, 395 P.3d 357, 361, n.2 (2017)).

Towner argues that, despite his incorrect citation reference below—citing Idaho Code 

sections 66-329 and 66-317 instead of Idaho Code section 66-326—it is clear that he argued the 

following before the district court: (1) Officer Johns’ authority to take persons into protective 

custody for transport and mental health evaluation and commitment was “pursuant to statute”; (2) 

the statute was the Idaho Hospitalization of the Mentally Ill Act; (3) under that statute an officer 

needs to find that the person is “a danger to self, danger to others,” or “gravely disabled”; (4) there 

was not sufficient evidence to establish that Mr. Towner met either of those threshold conditions; 

and for that reason (5) the officer “was not allowed to take Mr. Towner into custody.” Thus, 

Towner submits that the district court had the “opportunity to address” his position, Gonzalez, 165 

Idaho at 98, 439 P.3d at 1270, but explicitly ruled it did not need to do so in order to decide whether 

the community caretaking function applied. 

It is evident from the record that Towner argued the merits of section 66-326(1)’s limits, 

even if he erroneously cited section 66-329 in support of his motion to suppress. Idaho Code 

section 66-329 explains the judicial procedure for having someone involuntarily committed to the 

Department of Health and Welfare for mental health treatment. Idaho Code section 66-326(1)

governs an officer’s license to take a person into protective custody without a hearing if the officer 

has reason to believe the person is gravely disabled due to mental illness or if the person’s 

continued liberty poses an imminent danger to that person or others. 

Both Towner and the State cited the relevant language of section 66-326(1) before the 

district court and elicited testimony from Officer Johns that matched the language of section 66-

326(1). Officer Johns testified he took Towner into custody “pursuant to statute” which required a 

finding that a person poses a “potential threat to themselves . . . a potential threat to others” or is 

“gravely disabled.” Officer Johns further agreed that the confines of “that statute” might delineate 
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whether he could bring someone into protective custody. The statute that permits an officer to take 

someone into custody without a hearing if they are gravely disabled or a threat to themselves or 

others is Idaho Code section 66-326(1). Thus, Towner’s argument is preserved for appeal because 

he cited both the relevant language of the statute and the principles behind it in his argument before 

the district court. 

B. The district court erred in concluding Officer Johns’ act of taking Towner into 

protective custody was within the officer’s authority under the community caretaker 

exception to the Fourth Amendment without considering the requirements of Idaho 

Code section 66-326(1).

Towner argues the district court erred in declining to consider the protective custody 

statute—Idaho Code section 66-326(1)—when evaluating the reasonableness of Officer Johns’ 

actions. Towner continues that, under the statute, the State failed to meet its burden of showing 

Officer Johns had reason to believe that Towner was gravely disabled due to mental illness or that 

his continued liberty posed an imminent threat to himself or others. In response, the State focuses 

on the totality of the circumstances, and maintains that Officer Johns’ actions were reasonable 

under his community caretaking function. 

The Fourth Amendment of the United States Constitution protects “[t]he right of the people 

to be secure in their persons, houses, papers, and effects, against unreasonable searches and 

seizures. . . .” U.S. Const. amend IV. A warrantless search is presumptively unreasonable unless 

it falls within an exception to the warrant requirement. Once a defendant has established that a 

warrantless search occurred, the State bears the burden of establishing that a valid exception 

applies. State v. Smith, 168 Idaho 463, 472, 483 P.3d 1006, 1015 (2021).

An officer acting pursuant to his or her “community caretaking function,” has been 

recognized as an exception to the Fourth Amendment’s warrant requirement. State v. Page, 140 

Idaho 841, 844, 103 P.3d 454, 457 (2004). “The community caretaker function arises from the 

duty of police officers to help citizens in need of assistance.” Id. (citing State v. Wixom, 130 Idaho 

752, 754, 947 P.2d 1000, 1002 (1997)). In analyzing community caretaking function cases, Idaho 

courts have adopted a totality of the circumstances test. Wixom, 130 Idaho at 754, 947 P.2d at 1002 

(citing Matter of Clayton, 113 Idaho 817, 818–19, 748 P.2d 401, 402–03 (1988)). “[T]he 

constitutional standard is whether the intrusive action of the police was reasonable in view of all 

the surrounding circumstances.” Id. (quoting State v. Waldie, 126 Idaho 864, 867, 893 P.2d 811, 

814 (Ct. App. 1995)).
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“There must be a sufficient public interest furthered by the detention to outweigh the degree 

and nature of the intrusion upon the privacy of the detained citizen.” Page, 140 Idaho at 844, 103 

P.3d at 457 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 880–81 (1975)). “There must 

also be some genuine and warranted concern by the officer to justify the detention of a citizen and 

not simply the officer’s curiosity or an unsubstantiated suspicion of criminal activity.” Id. (citing 

Wixom, 130 Idaho at 754, 947 P.2d at 1002 (community caretaking did not justify the stop of a 

motorist passing by an accident scene long after the accident so the officer could find out whether

the occupants had any information about the accident); State v. Schmidt, 137 Idaho 301, 47 P.3d 

1271 (2002) (community caretaking was not a justification for the detention of individuals sitting 

in a car lawfully parked on an unimproved pullout after dark in the winter on the officers’ 

subjective belief, unsupported by any evidence, that the vehicle might have run off the road).

Whenever a person is detained, the scope of the detention must be carefully tailored to its 

underlying justification. State v. Cutler, 143 Idaho 297, 302, 141 P.3d 1166, 1171 (Ct. App. 2006).

Towner concedes that his initial seizure by Officer Johns, by the officer’s calling out and 

having him walk back to talk, was arguably within his community caretaking function. Officer 

Johns’ testimony bears this out. Officer Johns testified that: (1) he received a report of a person 

standing by the roadside who “appeared to be hallucinating”; (2) he recognized Towner from 

previous experiences and was familiar with Towner “having mental health issues”; and (3) Officer 

Johns received a report of an apparent welfare concern from the group home where Towner had 

been living. That said, Towner argues that Officer Johns’ genuine concerns for his well-being did 

not justify the next act of taking him into protective custody. Towner submits that an officer’s 

authority to take a person “into custody” for “evaluation, care or treatment of mental illness,” is 

strictly limited by Idaho Code section 66-326. The statute provides, in relevant part: 

DETENTION WITHOUT HEARING. (1) No person shall be taken into custody or 

detained as an alleged emergency patient for observation, diagnosis, evaluation, 

care or treatment of mental illness unless and until the court has ordered such 

apprehension and custody under the provisions outlined in section 66-329, Idaho 

Code; provided, however, that a person may be taken into custody by a peace 

officer and placed in a facility, or the person may be detained at a hospital at which 

the person presented or was brought to receive medical or mental health care, if the 

peace officer or a physician medical staff member of such hospital or a physician’s 

assistant or advanced practice registered nurse practicing in such hospital has 

reason to believe that the person is gravely disabled due to mental illness or the 

person’s continued liberty poses an imminent danger to that person or others, as 

evidenced by a threat of substantial physical harm . . . .
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I.C. § 66-326(1) (emphasis added).

Without discussing whether Officer Johns complied with section 66-326(1), the district 

court stated: “I don’t believe that I need to get into the analysis of 66-329 [Commitment to 

Department Director Upon Court Order – Judicial Procedure] and 66-317 [Definitions applying to 

Hospitalization of Mentally Ill] to decide whether the community caretaking function exception 

exists in this case.” The court found that “based on the totality of the circumstances, it was 

reasonable for Officer Johns to believe Mr. Towner needed some assistance, needed to get to the 

hospital, and needed help that is provided at a hospital, and so the community care-taking function 

exists in this case.” 

We agree that Officer Johns’ initial approach and conversation with Towner was 

permissible under his community caretaking function. The body camera footage and Officer Johns’ 

testimony at the motion to suppress hearing show that he was concerned for Towner’s well-being 

and went to see if he needed any assistance. Page, 140 Idaho at 844, 103 P.3d at 457; Wixom, 130 

Idaho at 754, 947 P.2d at 1002 (“The community caretaking function involves the duty of police 

officers to help citizens in need of assistance”). But before Officer Johns decided to place Towner 

in handcuffs and take him into protective custody, the requirements of Idaho Code section 66-326

had to be satisfied. Section 66-326 provides a peace officer may only take someone into custody 

if the officer “has reason to believe that the person is gravely disabled due to mental illness or the 

person’s continued liberty poses an imminent danger to that person or others, as evidenced by a 

threat of substantial physical harm.” I.C. § 66-326(1). Thus, the community caretaking function 

could initially justify Officer Johns’ brief detention of Towner to inquire about his mental health 

and to find out whether he needed additional assistance. But Officer Johns was then required to 

comply with section 66-326(1) to lawfully take Towner into protective custody. The district court 

erred in not addressing the applicable statutory requirements and whether they were met here. 

Accordingly, we reverse the district court’s denial of Towner’s motion to suppress and

remand the case with instructions for the district court to enter findings of fact related to whether

the State proved that Towner was “gravely disabled” or an “imminent danger” to himself or others 

because of his mental illness. Having reversed the district court’s denial of Towner’s motion to 
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suppress on this basis, we do not reach Towner’s alternative argument that the later search was not 

justified within the scope of the community caretaking function.

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IV. CONCLUSION

We reverse the district court’s denial of Towner’s motion to suppress. We remand the case 

with instructions for the district court to enter findings of fact related to whether the State proved 

that Towner was “gravely disabled” or an “imminent danger” to himself or others because of his 

mental illness under Idaho Code section 66-326(1), before he was taken into protective custody.

Justices BRODY, STEGNER, MOELLER, and ZAHN CONCUR.

1 Towner asserted in his petition for review to this Court that the United States Supreme Court’s recent decision in 

Caniglia v. Strom, ___ U.S. ___, 141 S. Ct. 1596 (2021), mandated review and reversal by this Court. Given our 

conclusion that the district court erred by failing to apply the statutory factors of Idaho Code section 66-326(1), there 

is no reason to address the community caretaking function in more detail here. We leave the scope of the community 

caretaking function post-Caniglia for another day.