IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 48748

STATE OF IDAHO, )

)

 Plaintiff-Respondent, ) Boise, November 2021 Term

)

v. ) Opinion Filed: March 17, 2022

)

AARON SHANE TOWER, ) Melanie Gagnepain, Clerk

)

 Defendant-Appellant. )

____________________________________)

Appeal from the District Court of the Fourth Judicial District of the State of 

Idaho, Ada County. Deborah A. Bail, District Judge. 

The district court judgment is affirmed.

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

Sally Cooley argued.

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

John McKinney argued. 

_________________________________

BEVAN, Chief Justice

Aaron Shane Tower appeals from the district court’s order denying his motion to suppress 

evidence obtained following a warrantless arrest. Tower argues he was unlawfully arrested for 

trespassing without probable cause or a warrant, thus, the evidence obtained during a subsequent 

search should have been suppressed. Tower’s appeal was first heard by the Idaho Court of Appeals, 

which affirmed his conviction. Tower then petitioned for review by the Idaho Supreme Court, 

which was granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background 

On July 11, 2018, Tower’s mother, Michelle, contacted the Boise Police Department 

(BPD) and spoke to Officer Hilton to report that her son, Tower, had threatened to “blow his head 

off in [her] house.” The State also alleged that Tower posted on social media that he was driving 
from Nevada to Idaho with a plan to shoot Michelle and his stepfather—however, it is not entirely 

clear from the record if this was the same threat Michelle reported or a different threat. In any 

event, Michelle was out of town at the time. Tower’s grandmother, Sandra, was at home, however, 

because she was watching the house while Michelle was away. Michelle told Officer Hilton she 

was concerned for Sandra’s safety and said she did not want Tower on her property.

The next day, Tower had several interactions with police, including two encounters with 

Cpl. Dustin (Dustin) near Michelle’s house. Dustin first responded to a complaint from a neighbor 

that Tower was camping in front of a vacant house across the street from Michelle’s house. When 

Dustin found Tower, he instructed him to leave the yard, explaining he could not camp there. 

Dustin and Tower then had what Dustin described as a “contentious conversation,” with Tower

complying afterward. Later that day, BPD received a second complaint about Tower and returned

to Michelle’s house. Dustin responded, as did other officers, and found Tower across the street in 

a common area, further down from where Dustin found Tower earlier. As other officers spoke to 

Tower, Dustin spoke to Sandra whom he described as “extremely fearful.” 

On July 13, Dustin and Officer Richmond again responded to a 911 call placed by Tower 

stating, “his grandmother pointed a gun to his head.” As Dustin was en route to the scene with 

Officer Richmond, they received a computer dispatch report that Richmond read to Dustin. The 

report, though not entirely clear, noted the calling party “advised he [was] previously not allowed 

on the property. He is now, and she is not aware.” Dustin testified this information from the log 

was “odd” and “confusing” because, based on his knowledge at the time, “[Tower] was still 

unwelcome [at his mother’s home]. He was trespassing. He was not supposed to be at the 

property.” 

Once officers arrived at Michelle’s residence, Tower exited the garage, and Dustin

informed Tower he was under arrest for trespassing. According to Dustin, Tower “immediately 

resisted” and “verbally was getting agitated.” Despite Dustin telling Tower he was under arrest, 

Tower tried to walk away and began to take off his jacket. Dustin instructed Tower to get on the 

ground, pulled his taser from his holster and pointed it toward Tower. Tower began to comply at 

this point and officers “went hands-on with him,” at which time Tower began to struggle more. 

Although he continued to struggle against the handcuffs, Tower ultimately complied with 

instructions. As Dustin was trying to arrest Tower, Tower repeatedly said he had permission to be 

on the property. According to Dustin, he did not terminate the arrest because based on the totality 
of the circumstances, the possibility a weapon was present, the claim Tower’s grandmother had 

pointed a gun at him, and Tower’s demeanor on scene, Dustin believed it was safer to place Tower 

in handcuffs than to leave him free to respond physically.

Dustin searched Tower after his arrest and discovered a baggie with methamphetamine 

inside Tower’s jacket pocket. After Tower was in custody, Dustin learned from Sandra that Tower 

had permission to be at the house. Dustin later learned that earlier in the day, Michelle contacted 

BPD to inform them Tower was allowed on the property. Michelle and David Saunders, Tower’s 

stepfather, both later supplied signed statements attesting to this. 

B. Procedural Background 

Tower was charged with possession of a controlled substance and with resisting or 

obstructing an officer. Tower moved to suppress on the grounds the evidence was fruit of an 

unlawful seizure not based on probable cause. At the hearing on Tower’s motion, Dustin and 

Michelle both testified. Dustin testified to telling Tower he was under arrest for trespassing, and 

subsequently placing him under arrest for resisting and obstructing after Tower resisted Dustin’s 

efforts to handcuff him.

At the end of that hearing, the district court orally denied Tower’s motion without either 

party offering closing argument. The district court ruled that Dustin had reasonable suspicion to 

detain Tower to gain control over a volatile situation. 

Later, Tower entered a conditional guilty plea to possession of methamphetamine and 

reserved the right to appeal the district court’s denial of his motion to suppress. In exchange for 

the guilty plea, the State dismissed the charge of resisting or obstructing an officer. Tower’s appeal 

was first heard by the Idaho Court of Appeals, which affirmed his conviction. 

Tower’s opening brief to the Court of Appeals argued that Tower’s arrest was illegal 

because Dustin did not have probable cause to arrest given the information available to Dustin at 

the time. In the petition for review, Tower alleged the Court of Appeals affirmed the district court’s 

decision on a basis not argued to the district court; that is, that there was reasonable suspicion to 

detain Tower prior to his arrest for resisting and obstructing. Tower did not challenge the district 

court’s conclusion that his arrest was supported by reasonable articulable suspicion. We granted 

review. 
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). When this Court 

reviews a district court's order granting or denying a motion to suppress, “the standard of review 

is bifurcated.” State v. Alvarenga-Lopez, 169 Idaho 215, 494 P.3d 763, 766 (2021). “This Court 

will accept the trial court's findings of fact unless they are clearly erroneous.” Id. (citing State v. 

Gonzales, 165 Idaho 667, 671, 450 P.3d 315, 319 (2019)). Even so, “this Court may freely review 

the trial court's application of constitutional principles in light of the facts found.” Id. (citing State 

v. Diaz, 144 Idaho 300, 302, 160 P.3d 739, 741 (2007)).

III. ANALYSIS

A. We affirm the district court’s decision denying Tower’s motion to suppress because 

Tower did not properly preserve his argument on appeal. 

This Court accepted review of the Court of Appeals’ opinion here because Tower’s 

argument about Dustin lacking probable cause appeared at first blush to be a good one. Dustin’s 

near-immediate arrest of Tower upon arriving at the residence likely lacked probable cause. But 

the challenge for Tower before this Court on review is that the district court’s ruling was not 

grounded on the arrest but whether Dustin had reasonable suspicion to place Tower in custody 

while “something was going on that warranted further investigation,” to quote the district court.

Tower’s failure to address the basis of the district court’s ruling in his opening brief constitutes a 

waiver of this issue, no matter how convincing his argument is now about the alleged illegal arrest. 

After his initial arrest, Tower filed a motion to suppress and memorandum in support of 

motion to suppress evidence. Tower’s motion to suppress sought to suppress all evidence seized

on these grounds: “that the evidence in this case was the fruit of an unlawful 

seizure/detention/search that was not based on probable cause or reasonable suspicion.” The 

memorandum in support of the motion focused on the alleged illegal arrest only—the 

memorandum did not address the suspicion to support the seizure. In response, the State filed a 

memorandum in opposition and a hearing was held soon after. Before the district court, the State 

argued only that Tower was properly arrested for trespass; Tower likewise argued only that the 

arrest for trespassing was improper. 

The district court then made its ruling orally at the end of testimony at the motion to 

suppress hearing. The district court did not hear from either the State or the defense through closing
argument after the hearing; it simply made an immediate ruling and concluded the search of Tower 

was a proper search incident to arrest and that officers had reasonable articulable suspicion to 

detain Tower. The district court’s explanation established the core of its ruling—which was based 

on a finding that the officers had reasonable articulable suspicion to detain Tower, after which he 

immediately resisted and obstructed, leading to a lawful arrest for that crime. 

The nature of the district court’s colloquy is important. The district court noted: “I think 

the [police] had every reason to kind of put a hold on this situation while they checked it out,” and 

that “this is a situation that more than justified them trying to freeze the situation, at a minimum, 

and see what is happening.” After making its general ruling, Tower’s defense counsel asked a 

“clarifying question,” seeking to ensure that the district court considered its ruling under both “the 

Fourth Amendment to the United States Constitution as well as the Idaho Constitution, Section 1 

[sic]. . . .” The district court cut counsel off while making the request but reiterated that it was

making its ruling “under both [constitutional] provisions.” The district court then stated: 

I am making the ruling that this was a proper search incident to arrest. And 

this is a proper situation for the authorities to have detained him, to investigate it 

more fully. 

At a minimum, this is a proper situation to detain somebody, to investigate 

fully about what’s going on. That is exactly why you have that kind of stop, is that 

there are times when the situation needs to be frozen.

And they, in my view, would have had reasonable articulable suspicion to 

detain somebody that something was going on that warranted further investigation. 

And then when the situation escalates from there to more aggressive resistance in 

their instructions, then what you do is you move from a situation where looking 

into it is what you are probably talking about to a situation where - - but when you 

are looking into it, you are pretty concerned because you have all of these reports 

from the days before. You have a report from the defendant himself that somebody 

held a gun to his head, but they know who that is. And they can assess that, anyone 

in their right mind would have investigated this situation more fully. 

And it was reasonable – the steps they took were reasonable law 

enforcement actions to deal with a situation which moved from checking things out 

to the more serious situation of having grounds to arrest and grounds to conduct a 

search incident to arrest.

So that’s my ruling. 

(Emphasis added). While the district court did mention “proper search incident to arrest” before

referencing the officers’ right to detain and investigate, it was sufficiently clear from the district 

court’s ruling that the court concluded Tower’s detention was based on reasonable suspicion. The 

district court also noted: 
[Y]ou have a situation where you have reports of a person who might be using a 

weapon to harm others. Then you have a report of somebody else pointing a weapon 

at [Tower]. They know the person who is pointing the weapon at him is smaller and 

more elderly than he is because he is a young fit person or he wouldn’t be a wildland 

firefighter. So I think they had every reason to kind of put a hold on this situation 

while they checked it out. And so – then, of course, he struggles and doesn’t respond 

to commands or instructions, which would raise their concern about maybe 

something bad had happened in the house. Because that would raise anyone’s 

concern that maybe something bad had just gone down in the house.

Thus, reviewing the district court’s dialog/ruling as a whole, the court describes the 

rationale behind its ruling multiple times: that the officers had reasonable articulable suspicion to 

detain Tower because “something was going on that warranted further investigation.” While 

Dustin ordered Tower under arrest just after arrival, the district court centered its ruling on 

reasonable articulable suspicion for the officers to seize Tower, irrespective of Dustin’s statement 

about arresting Tower. The court’s conclusion was distinct from the illegal arrest ground that 

Tower argues on appeal and is a ruling that must have been directly appealed. 

In Tower’s petition for review, he argues that “the basis upon which the Court of Appeals 

affirmed the district court’s decision was not argued to the district court.” He also claims that the 

district court’s ruling at the end of the suppression hearing was unclear and failed to acknowledge 

that Tower was arrested for trespassing. Certainly, the district court’s ruling is not a model of 

clarity. Even so, the district court plainly ruled that law enforcement had reasonable articulable 

suspicion to detain Tower and that probable cause to arrest him developed when he resisted their 

instructions.

Tower’s counsel made no formal objection or motion for reconsideration before the district 

court to establish the basis of its ruling. While this would not normally be required of counsel to 

preserve the record, there was no effort before the district court to clarify the ruling for appeal, and 

Tower cannot now claim that this lack of clarity supports his position when he had the chance to

remedy it below. See State v. Godwin, 164 Idaho 903, 914, 436 P.3d 1252, 1263 (2019) (explaining 

that the “bedrock” of the defendant’s argument was present in the brief in support of motion to 

suppress and memorandum filed below, thus preserving the issue on appeal). And while Tower 

contends the district court’s decision was unclear, raising an objection would have allowed him

the opportunity to obtain clarity and also “permit[] the trial court to attempt to correct or avoid the 

mistake so that it cannot possibly affect the ultimate outcome,” which also “discourages a 

defendant from sandbagging” or “remaining silent about his objection and belatedly raising the 
error only if the case does not conclude in his favor.” State v. Dunlap, 155 Idaho 345, 363, 313 

P.3d 1, 18–19 (2013) (quoting Puckett v. United States, 556 U.S. 129, 134 (2009)). Once the appeal 

was filed, Tower raised no issue at all about the district court’s focus. 

The Court has explained that an appeal involves a formalized analysis of alleged legal error.

Est. of Ekic v. Geico Indem. Co., 163 Idaho 895, 897, 422 P.3d 1101, 1103 (2018). Still, when 

Tower appealed this decision, his opening brief to the Court of Appeals did not mention the basis 

for the district court’s decision at all. Tower’s opening brief on appeal read much like the brief that 

he submitted to the district court in the first instance. Critically, Tower did not lay out the errors 

in the district court’s analysis or even challenge the lack of clarity in the bench ruling. He pointed 

to no specific reason the decision was in error. Tower continued to make the same argument to the 

Court of Appeals that he made to the district court—that his arrest for trespassing was unlawful. 

The district court’s ruling on a ground not argued by the State should have been the basis for 

Tower’s appellate briefing—but that ground was not raised until after the Court of Appeals 

rendered its decision.

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

brief.” Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (quoting Jorgensen v. 

Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454 (2008)). 

Where an appellant fails to assert his assignments of error with particularity and to 

support his position with sufficient authority, those assignments of error are too 

indefinite to be heard by the Court. 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. (citation omitted). Thus, “a party waives an issue cited on appeal if either authority or argument 

is lacking . . . .” State v. Wood, 132 Idaho 88, 94, 967 P.2d 702, 708 (1998) (quoting State v. 

Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996)). 

Then, in his petition for rehearing, Tower takes aim at the decision rendered by the Court 

of Appeals. In its unpublished opinion, the Court of Appeals held that Tower’s appeal failed 

because he did not challenge the district court’s ruling that Officer Dustin had reasonable suspicion 

to detain Tower and probable cause to arrest him for resisting an obstructing an officer. We agree 

with the conclusion reached by the Court of Appeals.

The Court of Appeal’s decision reflects how Tower argued his appeal. It was not until he

petitioned for rehearing that Tower argued the district court erred by (1) ruling on a legal basis not 

raised by the state (reasonable suspicion for a detention rather than probable cause to arrest for 
trespass), and (2) failing to address the reasonableness of the duration and scope of the detention 

and the objective basis for suspecting Tower committed a crime. Most importantly, it was not until 

his petition for rehearing that Tower made the argument that a person cannot be simultaneously 

under arrest and detained pursuant to reasonable suspicion. Tower’s arguments are simply too late.

At oral argument here, Tower claimed the district court’s ruling was unclear and failed to 

acknowledge that Tower was arrested within 30 seconds from his encounter with officers. This 

may be true, but these generalized attacks on the district court’s conclusions were not raised in 

Tower’s opening brief. If the district court’s decision was unclear, Tower had an obligation to 

assert that assignment of error with particularity in his opening brief. He did not do so. In addition, 

Tower also had the ability to file a motion for reconsideration or clarification before the district 

court to raise these issues there and receive a definitive ruling. We have held that a party's failure 

to object to action by the trial court precludes a party from challenging that action on appeal. See 

Mackowiak v. Harris, 146 Idaho 864, 866, 204 P.3d 504, 506 (2009). And without a challenge to 

the district court’s order, we will uphold the decision on the unchallenged basis. See Montgomery 

v. Montgomery, 147 Idaho 1, 10, 205 P.3d 650, 659 (2009). 

Certainly, the district court ruling without hearing argument from counsel, and ruling on a 

ground that the State never raised, are issues that warrant the consideration of an appellate court. 

But those issues were never presented for appellate review before the petition for review was filed. 

We therefore decline to reach the issue at this stage of the proceedings.

That said, we use this opportunity to note that the Court of Appeals incorrectly suggested 

the district court did not refer to “reasonable suspicion” when pronouncing its ruling. This

statement conflicts with the oral ruling of the district court, as set forth above, and the district 

court’s explicit acknowledgment that the officer’s had reasonable articulable suspicion to detain 

Tower. The district court found there was reasonable suspicion to detain Tower prior to placing 

him under arrest for resisting and obstructing; the court did not hold that Tower was arrested for 

trespassing. We affirm that decision. 

V. CONCLUSION

For these reasons, the district court’s decision denying Tower’s motion to suppress is 

affirmed. 

Justices BRODY, MOELLER and ZAHN CONCUR.

STEGNER, J., dissenting.
I respectfully dissent from the majority’s conclusion that Tower failed to preserve his 

argument on appeal. I fully agree with the majority that “the district court’s ruling is not a model 

of clarity.” However, unlike the majority, I would decline to hold defense counsel responsible for 

struggling to understand the district court’s meandering explanation, particularly when a citizen’s 

constitutional rights are at stake. To do so in this case results in a miscarriage of justice. I would 

not only reach the merits of Tower’s argument, but I would also conclude that the district court 

erred in denying Tower’s motion to suppress because he was unlawfully arrested.

I first note that, “[w]hen 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) (italics added). Because we must directly review the decision of the trial court, and because 

there is debate surrounding what the district court truly “decided,” I find it necessary to quote the 

entirety of the district court’s oral pronouncement, in part because the decision never resulted in a 

written analysis:

Well, under the circumstances of this case, I don’t think there is a basis for 

the motion to suppress because based upon the information the police had, they 

have multiple contacts with the residents, with the defendant in the days leading up 

to the 13th. And the initial information they have is certainly information of 

concern.

Now, it may not be – it doesn’t sound like it precisely matches what we 

heard today, that today’s concern was that his mother was concerned that he 

behaved suicidally at the house.

The officer testified that he presented a risk to the parents at the house in 

the living room, but in any event, there was an instruction given that he not be 

allowed to be on the property earlier in the week.

And then the police respond to the multiple calls, some of which are from 

the neighbors saying the defendant is camping out in front of a vacant house. They 

go and talk to him, and he agrees to move, and then later they come back.

So[,] they’ve got repeated calls coming back with the defendant camping in 

the vicinity of an area where there’s, based on what they know at that time, very 

legitimate concern about whether he should be on the property and about unusual 

behavior.

And then they get a call from the defendant himself saying that he has been 

the victim of an aggravated assault where a gun has been pointed at his head. And 

then they arrive on the property – looking at the dispatch notes, they are confusing 

because “she is not aware.” It’s not unreasonable to interpret that “she is not aware” 
means that grandma doesn’t know that he’s allowed on the property. She’s not 

aware is, frankly, a little puzzling.

But what they know is that – what they are coming to respond to is a call 

where the defendant has said he’s been – had a gun pointed at him. Now – then, he 

is coming out of the garage. He is told to stop, and then he’s fiddling with his coat.

I think this is a situation where there is not a basis in part because it’s not 

based on the – it’s not – this is a totality of the circumstances issue. Anything in the 

totality of the circumstances, at a minimum, they would be permitted to detain him 

because there was an understanding and the authority on the 11th and 12th that he 

may have presented a risk to occupants. And they had seen with their own eyes 

concern by the grandmother about the situation.

And then he’s coming out after allegedly being assaulted by his smaller and 

older grandmother. He is strolling out of the house. I think there is every reason for 

the authorities to be concerned that he might have a weapon and that something 

may have happened that they needed to control the situation on.

And then and once he begins struggling and not responding to their 

instructions, it seems to me this is a situation where there’s a justifiable search.

And so[,] I’m going to deny the motion to suppress based on the totality of 

these circumstances, which it sounds like they may not have gotten information 

about the second bit of information. But just based on his own call that he had been 

assaulted by a person – they had already met – with a weapon, and then he is 

strolling out of the house and there had been concerns earlier, I think that is a 

justifiable basis to – for them to take action and to control the scene and to 

investigate more fully, which is certainly sounding like what their intent was to just 

to check into it, to get him in control.

Because you have a situation where you have reports of a person who might 

be using a weapon to harm others. Then you have a report of somebody else 

pointing a weapon at him. They know the person who is pointing the weapon at 

him is smaller and more elderly than he is because he is a young fit person or he 

wouldn’t be a wildland firefighter.

So[,] I think they had every reason to kind of put a hold on this situation 

while they checked it out. And so – then, of course, he struggle [sic] and doesn’t 

respond to commands or instructions, which would raise their concern about maybe 

something bad had happened in the house. Because that would raise anyone’s 

concern that maybe something bad had just gone down in the house.

And so, then, when they arrest him because is he now resisting because they 

would have – they had a right to detain him and investigate more fully based just 

on what they already knew. Then he starts resisting and behaving strangely, then –

then it justifiably moves up to the next level, which is where they can basically 

hang onto him.

And at that point, he then resists and obstructs the officers, so then they do 

have grounds to do a search incident to arrest. And then we have the drugs being
discovered. So there is no basis for a suppression in this case. It just isn’t there 

based on the facts as they unfold in this case.

But this is certainly a case that brings into play those legal doctrines that say 

look at the totality of the circumstances, look at what everybody knew and would 

have been thinking. Because, certainly, this is a situation that more than justified 

them trying to freeze the situation, at a minimum, and see what is happening. And 

then things move badly from there, which then justifies the next steps.

But this is the kind of situation where for sure as many contacts that all law 

enforcement had had with his residence, the days leading up, is definitely a situation 

where if there’s a call of somebody assaulting somebody else – as I said, somebody 

they had met and know is smaller and more elderly, it warrants the action that was 

taken in this case. So[,] this is not an illegal search.

So why don’t you think about it, and I’ll take up – I have another case to 

take up, but frankly, I’d say apart from the suppression issue, this is a situation that 

warrants more examination by us too.

So, we’ll see where we are.

Following this soliloquy, Tower’s defense counsel attempted to ask “a clarifying question”: 

“Regarding the [c]ourt’s ruling, we would then ask the [c]ourt to consider this under the Fourth 

Amendment to the United States Constitution, as well as the Idaho State Constitution, Section 1 – ” 

The district court cut him off, stating, “Right. That’s what I just did.”

Tower’s defense counsel persisted and requested, “[a]nd can I just – I just want – can I ask 

the [c]ourt – clarify with the [c]ourt’s making the ruling based on both provisions.” The district court 

then stated:

I am making the ruling that this was a proper search incident to arrest. And 

this is a proper situation for the authorities to have detained him, to investigate it 

more fully.

At a minimum, this is a proper situation to detain somebody, to investigate 

fully about what’s going on. That is exactly why you have that kind of stop, is that 

there are times when the situation needs to be frozen.

And they, in my view, would have had reasonable articulable suspicion that 

something was going on that warranted further investigation. And then when the 

situation escalates from there to more aggressive resistance in their instructions, 

then what you do is you move from a situation where looking into it is what you 

are probably talking about to a situation where – but when you are looking into it, 

you are pretty concerned because you have all of these reports from the days before. 

You have a report from the defendant himself that somebody held a gun to his head, 

but they know who that is. And they can assess that, anyone in their right mind 

would have investigated this situation more fully.
And it was reasonable – the steps they took were reasonable law 

enforcement actions to deal with a situation which moved from checking things out 

to the more serious situation of having grounds to arrest and grounds to conduct a 

search incident to arrest.

So, that’s my ruling.

The majority quotes only portions of the district court’s stream-of-consciousness ruling, 

pointing to small snippets that support the Court of Appeals’ interpretation of the “substance of 

the district court’s ruling.” See State v. Tower, No. 46807, 2020 WL 6058598, at *2 (Ct. App. Oct. 

14, 2020) (unpublished opinion). But context is important, and part of that context is what was 

argued by the parties below. In his written memorandum supporting his motion to suppress, Tower 

specifically argued that, because the officers lacked probable cause to arrest him for trespassing, 

the search was unlawful under both the Fourth Amendment of the U.S. constitution and Article I, 

section 17 of the Idaho constitution. In its written objection, the State countered that “[a]n objective 

review of the information available to the officer’s [sic] supports a finding of probable cause to 

make an arrest for trespass” and that “law enforcement found meth in his pocket during a search 

incident to arrest.” Then, after the close of evidence at the suppression hearing, the district court 

made its ruling without allowing argument from either party.

When the district court’s ruling is properly considered against this backdrop, it appears that 

the district court adopted the State’s written argument: that the officers had probable cause to arrest 

Tower for trespassing. The district court noted that the officers, “based on what they kn[ew] at that 

time,” had a “very legitimate concern about whether he should be on the property” and “that he 

may have presented a risk to occupants.” The district court based its ruling on “the totality of the 

circumstances” and “what everybody knew and would have been thinking.” This is in line with a 

determination of there is probable cause to make an arrest: 

In analyzing whether probable cause existed, this Court must determine whether 

the facts available to the officers at the moment of the seizure warranted a person 

of reasonable caution to believe that the action taken was appropriate. The 

application of probable cause to arrest must allow room for some mistakes by the 

arresting officer; however, the mistakes must be those of reasonable men, acting on 

facts leading sensibly to their conclusion of probability. The facts making up a 

probable cause determination are viewed from an objective standpoint. In passing 

on the question of probable cause, the expertise and the experience of the officer 

must be taken into account. The state has the burden of showing, based on the 

totality of the circumstances, the validity of any warrantless arrest.
State v. Gibson, 141 Idaho 277, 282–83, 108 P.3d 424, 430 (Ct. App. 2005) (internal citations 

omitted, italics added).

I recognize that the ruling is not clear and that it, as the majority points out, “references the 

officers’ right to detain and investigate.” However, I disagree with the majority’s statement that 

“there was no effort before the district court to clarify the ruling for appeal.” Tower’s defense 

counsel specifically requested the district court clarify that it was making its ruling under “both 

provisions”: the Fourth Amendment and Article I, section 17 of the Idaho constitution, both of 

which were specifically argued in the written memoranda before the district court. The district 

court states, “Right. That’s what I just did.” To me, this indicates the district court was affirming 

to Tower’s defense counsel that it was deciding the issue upon the arguments raised by the parties. 

The district court then unequivocally states “I am making the ruling that this was a proper search 

incident to arrest.” (Italics added.) Though the majority characterizes this statement as a “mention” 

of a proper search incident to arrest, the district court itself characterized it specifically as a 

“ruling.” 

While I do not doubt there are multiple reasonable readings of the district court’s ruling, I 

cannot say that Tower’s understanding of it, as laid out in his opening brief before the Court of 

Appeals, is categorically wrong: “The district court ultimately denied Mr. Tower’s motion to 

suppress finding that, based on the totality of the circumstances, the officers were justified in 

controlling the situation by arresting Mr. Tower and the search was lawful because it was done 

incident to arrest.” As such, I conclude that Tower adequately preserved his arguments for appeal.

Rigid adherence to our preservation doctrine in this case—particularly given the lack of 

clarity in the district court’s ruling—results in an unjust outcome that essentially rewards police 

officers for their failure to comply with our constitutions. It is this result that compels me to reach 

the merits of Tower’s appeal: I conclude the district court erred in denying Tower’s motion to 

suppress.

“The Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho 

Constitution prohibit unreasonable searches and seizures.” State v. Anderson, 154 Idaho 703, 706, 

302 P.3d 328, 331 (2021). “Warrantless searches are presumptively unreasonable unless the search 

falls within one of the ‘specifically established and well-delineated exceptions.’ ” State v. Blythe, 

166 Idaho 713, 716, 462 P.3d 1177, 1180 (2020) (quoting State v. Henderson, 114 Idaho 293, 295, 

756 P.2d 1057, 1059 (1988)) (italics added). “One such exception to the warrant requirement is 
for searches conducted incident to an arrest.” Id. “Under the search incident to arrest exception, 

law enforcement officers ‘may search an arrestee incident to a lawful custodial arrest.’ ” Id.

(quoting State v. Lee, 162 Idaho 642, 649, 402 P.3d 1095, 1102 (2017)) (italics added).

The threshold question involves probable cause. An officer may perform a 

warrantless search only incident to an arrest that is lawful. “In conformity with the 

rule at common law, a warrantless arrest by a law officer is reasonable [and lawful] 

under the Fourth Amendment where there is probable cause to believe that a 

criminal offense has been or is being committed.”

Lee, 162 Idaho at 649, 402 P.3d at 1102 (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)) 

(alteration in original).

Importantly, probable cause is an objective standard. For probable cause to exist, “an 

officer must have information that would lead a person of ordinary care to believe or entertain an 

honest and strong presumption that such person is guilty.” State v. Jenkins, 143 Idaho 918, 922, 

155 P.3d 1157, 1161 (2007). “In analyzing whether probable cause existed, this Court must 

determine whether the facts available to the officers at the moment of the search warranted a person 

of reasonable caution to believe that the action taken was appropriate.” State v. Kerley, 134 Idaho 

870, 874, 11 P.3d 489, 493 (Ct. App. 2000) (citing Julian, 129 Idaho at 137, 922 P.2d at 1063). 

“The application of probable cause to arrest must allow room for some mistakes by the arresting 

officer; however, the mistakes must be those of reasonable men, acting on facts leading sensibly 

to their conclusion of probability.” Id. “The facts making up a probable cause determination are 

viewed from an objective standpoint.” Id.

There simply was no probable cause to arrest Tower for trespassing. It is undisputed that 

Tower was no longer trespassed from the property at the time of his warrantless arrest. It is also 

undisputed that the Boise Police Department was aware that he was no longer trespassed. Dustin 

himself was informed, via the 911 dispatch log, that Tower was allowed on the property. And yet, 

within seconds of arriving on the scene, Dustin immediately arrested Tower—without a warrant—

for trespassing. The officer rejected what he had been told regarding Tower’s lawful ability to be 

on the property. That is the antithesis of what the law requires. 

The Fourth Amendment of the U.S. constitution and Article I, section 17 of the Idaho 

constitution allow officers leeway for reasonable mistakes. However, no allowances are made for 

officers who choose to keep themselves in the dark regarding facts (or who reject those facts when 

informed of them) that would undermine their subjective belief that criminal activity is afoot. That 

Dustin thought it was “confusing” for the dispatch log to state that Tower was once again allowed 
on the property is not a reasonable mistake as is contemplated by our state and federal 

constitutions. Dustin should have—and easily could have—exercised his due diligence and simply 

followed up with dispatch. He chose not to do so. Instead, he simply arrested Tower, without 

probable cause. This was not an instance of a reasonable man, “acting on facts leading sensibly to 

[his] conclusion of probability.” See Kerley, 134 Idaho at 874, 11 P.3d at 493. It is the exact 

opposite.

I further note that, although Tower made his 911 call at approximately 7 p.m., Tower’s 

mother notified the Boise Police Department around 9:30 a.m. that Tower was no longer trespassed 

from the property. More than nine hours had elapsed, which was more than enough time for the 

Boise Police Department to disseminate that information to its officers on duty. Furthermore, 

Dustin was not on duty at the time Tower’s mother called; instead, his shift started around 3:30 

p.m., when he attended his pre-shift briefing at the police station. This is not a case where Dustin 

was unreachable and reasonably believed he had up-to-date information. There were multiple 

opportunities for him to take steps to apprise himself of the fact that Tower was allowed on the 

property, or for other officers to do so. Whether this failure is due to neglect or an intentional 

decision to skirt constitutional requirements, it should not be allowed to stand.

In sum, Dustin lacked probable cause to arrest Tower for trespassing. Due to the lack of 

probable cause, Tower’s arrest was unlawful, and the search incident to the unlawful arrest was 

unreasonable as is prohibited by the Fourth Amendment and Article I, section 17 of the Idaho 

constitution. As such, I conclude that the district court erred in denying Tower’s motion to 

suppress. State v. Bishop, 146 Idaho 804, 816, 203 P.3d 1203, 1215 (2009) (“While evidence 

obtained during a search incident to a lawful arrest is generally admissible, evidence obtained 

during a search subsequent to an unlawful arrest is not.”). Accordingly, I respectfully dissent.