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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45174

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RONALDO DEAN ISLAS,

Defendant-Appellant.

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Filed: March 6, 2019

Karel A. Lehrman, Clerk

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION 

DATED DECEMBER 5, 2018, 

IS HEREBY WITHDRAWN

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

Kootenai County. Hon. Richard S. Christensen, District Judge. 

Order denying motion to suppress, reversed in part, affirmed in part, and case 

remanded.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, 

Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster

argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. Russell J. Spencer argued.

________________________________________________

HUSKEY, Judge

Ronaldo Dean Islas appeals from the district court’s judgment of conviction. He argues 

the district court erred when it denied his motion to suppress. We reverse the portion of the 

district court’s order denying the suppression of the marijuana tincture droplets and tissue paper 

from Islas’s pocket. We affirm the remainder of the district court’s order and remand this case to 

the district court for further proceedings consistent with this opinion. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

An officer observed a vehicle enter a public roadway at 9:02 p.m., fourteen minutes after 

sunset, and continue on the roadway without activating its headlights for five or six seconds.

The officer stopped the vehicle and approached the driver, Islas. The officer detected an odor of 
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alcohol coming from inside Islas’s vehicle and observed that Islas had glassy and bloodshot eyes.

The officer also observed small, circular pieces of glass on Islas’s lap and that Islas’s pants were

unzipped. After these observations, the officer ordered Islas out of the vehicle, causing the glass 

pieces to fall from Islas’s lap to the ground outside the vehicle. 

The officer then conducted a horizontal gaze nystagmus test and concluded Islas was not 

under the influence of alcohol. The officer detained Islas and proceeded to examine the glass 

pieces further, specifically observing one piece that was thickly coated with a white and brown 

crystalline substance the officer suspected to be methamphetamine, leading him to the 

conclusion that the pieces likely belonged to a methamphetamine pipe. The officer placed Islas 

in handcuffs, searched his person, discovered marijuana in the form of marijuana tincture 

droplets and tissue paper the officer believed was used to wrap the methamphetamine pipe, and 

informed Islas he was under arrest for the possession of marijuana. The officer then conducted a 

field test of the substance found on the glass piece, which indicated a presumptive positive for 

methamphetamine. A drug dog was called to the scene; the dog indicated on Islas’s vehicle.

While searching the vehicle, the officer discovered more glass pieces under the driver’s seat 

which appeared to belong to a methamphetamine pipe, along with additional tissue paper, and a 

baggie containing approximately one gram of methamphetamine in the trunk.

The State charged Islas with felony possession of a controlled substance,

methamphetamine, Idaho Code § 37-2732(c)(1); misdemeanor possession of a controlled 

substance, marijuana, I.C. § 37-2732(c)(3); and misdemeanor possession of paraphernalia, 

I.C. § 37-2734A(1). Islas filed a motion to suppress the evidence, arguing that he was 

unlawfully stopped, the stop was unlawfully prolonged, and he was unlawfully searched. The 

State made two arguments in its written opposition to the motion to suppress: first, that the 

officer had reasonable and articulable suspicion that a traffic offense had been committed 

because the officer observed a violation of I.C. § 49-903; and second, the extension of the stop to 

investigate the broken glass was lawful because the officer had specific facts from which the 

officer could infer further criminal activity. The State conceded the search of Islas’s pockets was 

not lawful and that the marijuana tincture droplets and tissue paper should be suppressed, but 

opposed the suppression of the other evidence. At the suppression hearing, the State proffered a 

third argument: the broken glass constituted littering, which could have justified the further 

investigation of the glass.
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At the suppression hearing, the parties focused on presenting evidence and argument 

regarding the suppression of the methamphetamine; little, if any, evidence or argument was 

presented regarding the marijuana and paraphernalia charges, likely because the State had 

already conceded the evidence should be suppressed. The district court denied the motion, and 

explained why it denied the motion as it related to the methamphetamine. The order did not 

specify whether it was suppressing all evidence, including the marijuana, or just the evidence 

that was presented and argued about at the hearing, which was only the methamphetamine. The 

district court ordered the State to draft the order. The State did so, making no mention that the 

evidence it had already conceded should be suppressed. Islas then entered a conditional guilty 

plea to all the charges, reserving his right to appeal the district court’s denial of his motion to 

suppress. For the felony possession of methamphetamine, the district court sentenced Islas to a 

unified term of three years, with one and one-half years determinate, suspended the sentence, and

placed Islas on probation. The district court granted credit for time served for the two 

misdemeanors. Islas timely appealed.

II.

STANDARD OF REVIEW

The standard of review of a suppression motion is bifurcated. When a decision on a 

motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by 

substantial evidence, but we freely review the application of constitutional principles to the facts 

as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a 

suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, 

weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 

127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 

659, 662 (Ct. App. 1999). 

The determination of whether an investigative detention is reasonable requires a dual 

inquiry--whether the officer’s action was justified at its inception and whether it was reasonably 

related in scope to the circumstances which justified the interference in the first place. State v. 

Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v. Parkinson, 135 Idaho 357, 

361, 17 P.3d 301, 305 (Ct. App. 2000). An investigative detention is permissible if it is based 

upon specific articulable facts which justify suspicion that the detained person is, has been, or is 

about to be engaged in criminal activity. State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 
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1223 (Ct. App. 2003). Such a detention must be temporary and last no longer than necessary to 

effectuate the purpose of the stop. Roe, 140 Idaho at 181, 90 P.3d at 931; State v. Gutierrez, 137 

Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). Where a person is detained, the scope of 

detention must be carefully tailored to its underlying justification. Roe, 140 Idaho at 181, 90 

P.3d at 931; Parkinson, 135 Idaho at 361, 17 P.3d at 305. In this regard, we must focus on the 

intensity of the detention, as well as its duration. Roe, 140 Idaho at 181, 90 P.3d at 931. The 

scope of the intrusion permitted will vary to some extent with the particular facts and 

circumstances of each case. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361, 

17 P.3d at 305. Brief inquiries not otherwise related to the initial purpose of the stop do not 

necessarily violate a detainee’s Fourth Amendment rights. Roe, 140 Idaho at 181, 90 P.3d at 

931. 

A warrantless search is presumptively unreasonable unless it falls within certain special 

and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 

U.S. 443, 454-55 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 

1999). A peace officer may make a warrantless arrest when a person has committed a public 

offense in the presence of the peace officer. I.C. § 19-603(1). Probable cause is the possession 

of information that would lead a person of ordinary care and prudence to believe or entertain an 

honest and strong presumption that such person is guilty. State v. Julian, 129 Idaho 133, 136, 

922 P.2d 1059, 1062 (1996). In analyzing whether probable cause existed, this Court must 

determine whether the facts available to the officer at the moment of the seizure warranted a 

person of reasonable caution to believe that the action taken was appropriate. Id.; State v. 

Hobson, 95 Idaho 920, 925, 523 P.2d 523, 528 (1974). 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. 

Klinger v. United States, 409 F.2d 299, 304 (8th Cir. 1969); Julian, 129 Idaho at 137, 922 P.2d at 

1063. The facts making up a probable cause determination are viewed from an objective 

standpoint. Julian, 129 Idaho at 136-37, 922 P.2d at 1062-63. In passing on the question of 

probable cause, the expertise and the experience of the officer must be taken into account. State 

v. Ramirez, 121 Idaho 319, 323, 824 P.2d 894, 898 (Ct. App. 1991).
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III.

ANALYSIS

Islas argues the district court erred when it denied his motion to suppress the 

methamphetamine. He contends the officer unlawfully extended the detention after the officer 

concluded Islas was not under the influence of alcohol. At that point, Islas argues the officer had 

no suspicion that Islas had committed, was committing, or was about to commit any criminal 

activity, yet the officer detained him anyway. As such, Islas reasons that all the evidence 

obtained thereafter should be suppressed, including the methamphetamine found on the glass

piece, the marijuana tincture droplets and paraphernalia on Islas’s person, and the paraphernalia

and methamphetamine found in Islas’s vehicle. 

On the other hand, the State appears to argue implicitly that if the district court 

suppressed the marijuana based on the State’s concession, such suppression was incorrect and 

that this Court would not be bound by that holding. Instead, the State argues the marijuana was 

admissible based on exceptions to the warrant requirement which were never presented in the 

district court--the search incident to a valid arrest or inevitable discovery exceptions. The State 

argues that this Court freely reviews the issue and the applicable law and thus, is not bound by 

the legal concessions made by the State or legal conclusions reached (or not reached) by the 

district court. The State further asserts that a de novo standard of review allows an appellate

court to affirm the district court on any legal ground, even ones not presented to the district 

court. Thus, the State asks this Court to affirm the admissibility of the methamphetamine, 

marijuana tincture droplets, and paraphernalia on two alternate theories raised for the first time 

on appeal. 

In contrast, Islas argues that even a de novo standard of review has some outer 

parameters and those parameters are the legal arguments made to the district court. In other 

words, the appellate court can freely review any applicable legal argument made in the district 

court, even if the district court declined to address or rule on that basis. This is the “right resultwrong theory” rule. But, Islas argues the appellate court, even in a de novo review, cannot 

address new arguments that could have been, but were not, raised in the district court. Islas 

refers to this as the “right result-new theory” rule. 
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A. The Interplay of the Preservation Requirement and the De Novo Standard of 

Review

1. The preservation requirement

This case provides the opportunity to explain the differences between the preservation 

requirement and the de novo standard of review. Each is a distinct concept and serves a very 

different purpose. The concept of preservation is derived from the parallel development of the 

English writ of error (used to correct legal mistakes) and the equity courts (to provide justice). 

Richard J. Montes & David A. Beatty, The Preservation Rule in the New York Court of Appeals: 

How Recent Decisions and Characterizations of the Rule Inform Advocacy, 78 Alb. L. Rev. 119, 

122 (2015); Mary Sarah Bilder, The Origin of the Appeal in America, 48 Hastings L.J. 913, 915, 

note 14 at 926-27 (1997). As American jurisprudence developed, the two processes merged into 

what is commonly understood to be the current appellate process. There are a variety of reasons 

the preservation doctrine exists. “First, preservation requirements serve the division of labor 

between trial courts and appellate courts, whereby trial courts find facts and appellate courts 

focus on law.” John F. Muller, The Law of Issues, 49 Wake Forest L. Rev. 1325, 1332 (2014). 

Second, “preservation requirements limit the costs of litigation, both for parties and for courts. 

Litigation, as the Supreme Court has stated, is a ‘winnowing process,’ and preservation rules are 

‘part of the machinery by which courts narrow what remains to be decided.’” Id. (citing Exxon 

Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008) (quoting Poliquin v. Garden Way, Inc., 989 

F.2d 527, 531 (1st Cir. 1993))). “Third, preservation requirements help ensure that courts are 

exposed to the strongest possible arguments as they craft decisions applicable beyond the parties 

to the dispute.” John F. Muller, The Law of Issues, 49 Wake Forest L. Rev. 1325 at 1332-33. 

Finally, preservation defines the bounds of judicial power; courts may not speak the law when 

they have no authority to do so. Id. at 1355-56.

The disagreement regarding preservation requirements lies in how broadly or narrowly a 

party wishes to define the term “issue.” The definition and thus the standard for preservation 

was clearly addressed in State v. Garcia-Rodriguez, 162 Idaho 271, 396 P.3d 700 (2017). In 

Garcia-Rodriguez, the State appealed the district court’s order granting Garcia-Rodriguez’s 

motion to suppress evidence. Id. at 273, 396 P.3d at 702. In the district court, the State argued 

that Garcia-Rodriguez was validly arrested pursuant to I.C. § 49-1407. On appeal, the State

changed course and argued that the application of I.C. § 49-1407 was irrelevant or immaterial to 

the analysis of the arrest. Garcia-Rodriguez, 162 Idaho at 273, 396 P.3d 702. The State then 
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advanced a new argument--that there was a separate, constitutional basis for the arrest pursuant 

to I.C. § 49-301(1) and Virginia v. Moore, 553 U.S. 164, 171-72 (2008), which held that

probable cause may constitutionally justify arrests regardless of state laws imposing additional

requirements. Garcia-Rodriguez, 162 Idaho at 274-75, 396 P.3d at 703-04. Garcia-Rodriguez 

objected to the State raising a new and different argument on appeal than was raised in the 

district court. Id. at 275, 396 P.3d at 704. In response, the State argued 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.” Id. 

The Supreme Court expressly rejected both arguments holding, “We have long held that 

‘[a]ppellate court review is limited to the evidence, theories and arguments that were presented 

below.’” Id. (internal citations omitted). The Court also specifically rejected the State’s 

argument 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,” by further explaining: 

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.

Garcia-Rodriguez, 162 Idaho at 275-76, 396 P.3d at 704-05. Consequently, the Supreme Court 

held that “[b]ecause the constitutionality of arresting Garcia-Rodriguez without regard for Idaho 

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

Supreme Court on appeal.” Garcia-Rodriguez, 162 Idaho at 275-76, 396 P.3d at 704-05. The 

Court has reiterated both the holding and its underlying premise in several subsequent cases. 

For example, in State v. Cohagan, 162 Idaho 717, 404 P.3d 659 (2017), the Idaho 

Supreme Court rejected the State’s argument that an appellate court is not bound by the State’s 

legal concessions in the district court and that it can affirm a district court on the “right resultwrong theory” rationale. Id. at 721, 404 P.3d at 663. The State, making precisely the same 
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arguments in this case as it did in Cohagan,

1 argued the Supreme Court could affirm the district 

court on any legal ground, even those conceded in the district court. It was for this reason the 

State argued that it was not bound by its concession that Cohagan was illegally detained or 

alternatively, that the Supreme Court could find Cohagan was not unlawfully detained based on 

the “right result-wrong theory” analysis. The State argued the district court correctly suppressed 

the evidence and thus, could be affirmed on the ground that either Cohagan was never unlawfully 

detained despite the State’s contrary concession or that even if unlawfully detained, the 

attenuation doctrine applied and, thus, the evidence need not be suppressed. 

A review of the Cohagan case shows that the State attempted to distinguish the holding 

in Garcia-Rodriguez by noting that Garcia-Rodriguez involved reversing a district court and in 

Cohagan, the State was asking the Supreme Court to affirm the district court on the “right resultwrong theory” rule. The Supreme Court rejected both arguments.

Addressing both whether the State was bound by its legal concession and whether it 

would consider the never-before-made argument that Cohagan was not illegally detained, the 

Supreme Court held: “As a threshold matter, the State maintains on appeal, even though it 

conceded the point below, that the Court must decide whether the interaction between Cohagan

and Officer Curtis was lawful. This is incorrect.” Cohagan, 162 Idaho at 721, 404 P.3d at 663. 

The Court stated:

In its briefing before the district court, the State stated that it “concedes 

that [Cohagan] was unjustifiably seized at the point Officer Curtis chose to retain 

his license and hold it while running [Cohagan’s] information for active 

warrants.” To allow the State to change positions on appeal and argue that the 

 1 In this case, counsel for the State has failed to disclose relevant contrary authority. See

State v. Fuller, 163 Idaho 585, 416 P.3d 957 (2018); State v. Cohagan, 162 Idaho 717, 404 P.3d 

659 (2017); State v. Garcia-Rodriguez, 162 Idaho 271, 396 P.3d 700 (2017). This is not the first 

time this has occurred, as the above cases were not disclosed in briefing or addressed in oral 

argument in State v. Hoskins, Docket No. 45134 (Ct. App. August 31, 2018) (review pending). 

Despite being explicitly questioned about his failure to address these cases in Hoskins, counsel 

failed to reference the above cases in either briefing or at oral argument until he was asked to 

address it at oral argument in this case. Moreover, the failure to reference these cases continues 

in his brief in support of petition for review in Hoskins. For example, on page twelve of the 

State’s brief in support of petition for review, without acknowledging or citing to either Cohagan

or Fuller, State’s counsel cites only to a 1987 Idaho Supreme Court case for the proposition that 

an argument must be first presented to the district court to be preserved for appeal. We cannot 

fathom why counsel would continue to fail to acknowledge or discuss relevant authority when he 

has been explicitly directed to do so on at least two prior occasions. 
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stop was not illegal would sharply cut against our longstanding and recently reaffirmed policy of requiring parties to present their arguments to the court below:

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.

Id. (quoting Garcia-Rodriguez, 162 Idaho at 276, 396 P.3d at 705 (quoting Smith v. Sterling, 1 

Idaho 128, 131 (1867))). Thus, the Supreme Court held the State was bound by its legal 

concession below and that it would not consider an argument not raised below in order to affirm, 

rather than reverse, a district court’s holding. Id. 

The Supreme Court reached a similar conclusion in State v. Fuller, 163 Idaho 585, 416 

P.3d 957 (2018), a case in which the State appealed from a district court’s order suppressing 

methamphetamine, prescription drugs, and drug paraphernalia found during an inventory search 

of Fuller’s car following his arrest. Id. at 587, 416 P.3d at 959. In the trial court, the State 

argued Fuller’s traffic stop was justified as a violation of I.C. § 49-637(1), failing to maintain a 

lane of travel. Fuller, 163 Idaho at 588, 416 P.3d at 960. The district court disagreed and 

granted the motion to suppress. Id.

On appeal, the State made two arguments. Id. First, the State repeated its argument from 

below: that the officer had reasonable suspicion that Fuller violated I.C. § 49-637(1). Fuller, 

163 Idaho at 588, 416 P.3d at 960. The Supreme Court disagreed. Id. at 589, 416 P.3d at 962. 

Second, the State argued that the officer had reasonable suspicion that Fuller violated I.C. § 49-

630(1)--an argument not made in the district court. Fuller, 163 Idaho at 589, 416 P.3d at 962. 

The Court also rejected this argument, holding: 

However, the State raises this argument without having asserted the same before 

the district court. While the State referenced our discussion of section 49-630 in 

Neal, it did not advance an argument in Neal or in this case that the statute was 

violated. That section 49-630 was not raised below spells the fatal resolution of 

this argument on appeal. Indeed, “[i]ssues 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.” State v. Garcia-Rodriguez, 162 

Idaho 271, 275, 396 P.3d 700, 704 (2017) (quoting Heckman Ranches, Inc. v. 

State, By & Through Dep’t of Pub. Lands, 99 Idaho 793, 799-800, 589 P.2d 540, 

546-47 (1979)).

Fuller, 163 Idaho at 590-91, 416 P.3d at 962-63.
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In sum, the Idaho Supreme Court has declined to review arguments (with the term 

“argument” including the applicability of different exceptions to the warrant requirement) not 

raised in the district court when either reversing or affirming the district court in suppression 

cases, because the argument was not preserved. As noted by the Supreme Court in GarciaRodriguez, this is consistent with years of Idaho jurisprudence and makes sense in the context of 

a suppression hearing. Id. at 275, 396 P.3d at 704,

In a suppression case, the court begins with the presumption that a warrantless search is 

constitutionally impermissible. The search remains unreasonable unless the State can prove the 

search either fell within a well-recognized exception to the warrant requirement or was otherwise 

reasonable under the circumstances. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 

(1995). In doing so, the State has the burden of proving the facts necessary to establish an 

exception to the warrant requirement. State v. Jenkins, 143 Idaho 918, 920, 155 P.3d 1157, 1159

(2007). To prove that the search fell within an exception or was otherwise reasonable, the State 

must determine which of the exceptions it intends to argue as the basis for admitting the 

evidence, admit the evidence that is relevant to that exception, and then argue the exception to 

the district court. This provides an opportunity for the defendant to address the State’s argument, 

through either additional evidence or argument and allows the trial court to make the relevant 

findings, providing a more fulsome record on appeal. 

When the State fails to articulate the relevant exceptions and then relies on the appellate 

court to make the argument the State should have made below, but did not, the appellate court 

must make several assumptions. The first assumption is that the State intended to and would 

have made the same argument as the analysis provided by the appellate court. The second 

assumption is that the district court also would have used the same reasoning and reached the 

same conclusion as the appellate court. For a whole host of reasons, appellate courts should not 

be making assumptions about what the parties might have argued and what conclusion the 

district court might have reached. 

 However, the recent opinions of the Idaho Supreme Court clarify the preservation 

requirement in this context by requiring the specific argument (the precise exception to the 

warrant requirement or the basis for the application of the exception) be presented to the trial

court in order to be raised on appeal. This permits the trial court to rule on the issue with which 

it is presented and provides a level appellate playing field. To the extent previous cases held the 
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State need only present the facts that support an exception, but was not required to articulate on 

which exceptions it was relying,

2 those cases are no longer controlling law in light of GarciaRodriguez, Cohagan, and Fuller. There are sound policy reasons for this.

First, by limiting appellate review to arguments raised in the district court, we ensure the 

preservation requirement is borne by those in the best position to shoulder the responsibility--the 

parties. This is because the State is in the best position to identify the relevant exceptions to the 

warrant requirement, present the evidence that supports the application of those exceptions, and 

argue the application of all relevant exceptions to the trial court. The defense can then respond 

to the arguments, and the district court can then rule on the articulated exceptions. 

If the State is only required to establish the factual basis for an exception to a warrant 

requirement, the defendant cannot object to the relevance of a specific piece of evidence because 

he or she does not know to which exception the evidence may apply. Moreover, once the State 

establishes any factual basis, it can simply say, “We are relying on each and every warrant 

exception for which there is a factual basis,” and that would be sufficient under the State’s 

interpretation of the interplay between the de novo review standard and the “right result-wrong 

theory” understanding of preservation. For purposes of preservation, the Idaho Supreme Court 

has made clear that in order to argue the applicability of an exception to the warrant requirement 

on appeal, the exception must first have been presented to the district court. 

Second, this interpretation ensures that the trial court has an opportunity to consider and 

resolve disputes at a time when the error can be prevented, mitigated, or cured. See State v. 

Branigh, 155 Idaho 404, 416, 313 P.3d 732, 744 (Ct. App. 2013); State v. Adams, 147 Idaho 857, 

861, 216 P.3d 146, 150 (Ct. App. 2009). For example, if the State does not articulate the 

applicable exceptions, the trial court must rule on the suppression motion without clarification on 

the precise argument at hand. It is not the job of the district court to identify all the possible 

exceptions to the warrant requirement and provide factual findings and legal conclusions on each 

possible exception. Instead, it is the job of the State to identify, with particularity, the exceptions 

on which it is basing the admission of the evidence so the trial court can make the appropriate 

 2 See, e.g, State v. Bower, 135 Idaho 554, 558, 21 P.3d 491, 495 (Ct. App. 2001) (“While 

prosecutors may customarily address some written or oral argument to the court presenting the 

State’s legal theories as to why the search or seizure was lawful, the prosecutor is not obligated 

to do so; nor is the trial court precluded from ruling that the evidence was lawfully acquired on a 

theory different from that advanced by the prosecutor.”).
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factual and legal findings. This places no hardship on the State. After all, the State carries the 

burden to establish the reasonableness of the search. Requiring the State to articulate the 

exceptions on which it is relying is a de minimis requirement. 

To require appellate courts to do that which we do not require of the trial court means 

that appellate courts would not review, but instead decide in the first instance, the validity of a 

search and subsequent seizure on a theory or argument not addressed by the district court. 

Requiring the State to articulate the warrant exceptions on which it intends to rely and then 

limiting appellate review to the arguments actually made before the district court, provides a 

more fulsome record both for the trial court and appellate courts. Consequently, the first 

question the appellate courts must address is whether the issue is preserved. If so, the appellate 

courts will determine and apply the relevant standard of review.

2. The de novo standard of review 

The de novo standard of review is a free review of legal arguments preserved for appeal. 

The Idaho Supreme Court clarified the interplay between the concept of preservation and the 

relevant standard of review as follows: 

It is true that the question of whether a seizure occurred is a question of law over 

which we exercise free review. State v. Bainbridge, 117 Idaho 245, 247, 787 P.2d 

231, 233 (1990). It is also true that this Court is not “limited by the prosecutor’s 

argument or the absence thereof.” State v. Veneroso, 138 Idaho 925, 930, 71 P.3d 

1072, 1077 (Ct. App. 2003). However, it is equally true that “[i]ssues 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.” GarciaRodriguez, 162 Idaho at 275, 396 P.3d at 704 (quoting Heckman Ranches, Inc. v. 

State, By & Through Dep’t of Pub. Lands, 99 Idaho 793, 799-800, 589 P.2d 540, 

546-47 (1979)); see also Weil v. Herring, 207 N.C. 6, 175 S.E. 836, 838 (1934) 

(“An examination of the record discloses that the cause was not tried upon that 

theory, and the law does not permit parties to swap horses between courts in order 

to get a better mount in the Supreme Court.”).

Cohagan, 162 Idaho at 721, 404 P.3d at 663. This excerpt explains the relationship between the 

concepts of preservation and de novo review. To understand the above excerpt as permitting 

appellate courts to address arguments not raised in the trial court conflates the de novo standard 

of review with the preservation requirement. This is an incorrect understanding of standards of 

review, generally, and the de novo standard of review, specifically. The standard of review 

guides the appellate court in determining “how ‘wrong’ the lower court has to be before it will be 

reversed.” Mary Beth Beazley, A Practical Guide to Appellate Advocacy 12 (2d ed. 2006). 
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Standards of review balance the power among the courts, enhance judicial 

economy, standardize the appellate process, and give the parties in a lawsuit an 

idea of their chance of success on appeal. All of these policies are interconnected. 

And, when appellate court judges use standards of review faithfully and 

consistently, these principles are upheld. An examination of the policies 

underlying standards of review leads to an appreciation of their role in judicial 

decision making and an appreciation of the significant negative effect brought 

about when they are misunderstood, manipulated, or ignored.

Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark 

L. Rev. 233, 238 (2009). “[W]hen used properly, standards of review require appellate judges to 

exercise self-restraint.” Id. at 235.

The de novo standard of review is a free review of all preserved legal issues. There is a 

long line of Idaho authority that supports this proposition. In other words, it is a free review of 

all arguments raised in the district court. This clearly delineates what is properly preserved for 

appellate review and frees the appellate courts from engaging in word games addressing the 

difference between “issues,” “arguments,” and “theories.”

We recognize that a district court’s legal conclusions are subject to de novo review and in 

the past have been affirmed on the “right result-wrong theory” rationale, but recognize this does 

not shed much reasoning on why this has been the case. The Idaho Supreme Court has recently 

clarified that the de novo standard of review, which frequently utilizes the “right result-wrong 

theory” analysis is bounded by the arguments presented in the district court. In other words, a de 

novo review is a de novo review of the arguments presented to the district court. These recent 

holdings are simply a recognition that all standards of review, including the de novo standard, 

can only be applied to issues that have been preserved in the district court. In order for the trial 

court to be affirmed on the “right result-wrong theory” basis, the alternate theory on which the 

district court is affirmed must still have been presented below; thus precluding the “right resultnew theory” basis for affirming a district court.

The “right result-wrong theory” analysis was first addressed in Gagnon v. St. Maries 

Light & Power, Co., Limited, 26 Idaho 87, 141 P. 88 (1914). Therein, Gagnon filed a personal 

injury complaint resulting from injuries he received during the course of painting an electricity 

transformer station. Id. at 88-89, 141 P. at 89. St. Maries Light & Power filed a demurrer

asserting that the complaint failed to allege sufficient facts to support a cause of action and that 

the wrong parties were named in the complaint. Id. at 90, 141 P. at 90. The district court 

sustained the demurrer on the first ground and Gagnon appealed. Id. 
14

The Supreme Court held the district court had incorrectly sustained the demurrer on the 

first ground because the complaint alleged sufficient facts to support a cause of action. Id. at 91, 

141 P. at 90. Thereafter, the Court noted that although the district court did not specifically 

address the second ground listed in the demurrer, the issue was relevant to the opinion and 

should be addressed. Id. The Court then stated, “It is also true that, if the demurrer was good on 

any ground stated, it would be the duty of this court to sustain the trial court, even though he 

sustained the demurrer on an erroneous ground.” Id. After analyzing the issue, the Supreme 

Court held that Gagnon had included the correct parties in the complaint. Id. at 95-97, 141 P. at 

91-92. Consequently, the Supreme Court reversed the district court and remanded the case. Id. 

at 97, 141 P. at 92. 

There are two reasons Gagnon does not stand for the proposition that the “right resultwrong theory” theory allows an appellate court to affirm a district court decision on a different 

ground than was argued in the district court. First, the district court was reversed, not affirmed, 

in Gagnon. Second, the statement about affirming the district court on an erroneous ground was

dicta and that dicta was grounded in the fact that the Supreme Court analyzed an alternative 

argument raised and argued in the district court, but on which the district court did not rule, not 

on a wholly new reason presented for the first time on appeal. Indeed, it appears subsequent 

cases cited Gagnon for the “right result-wrong theory” rationale without ever recognizing the 

distinction between “right result-wrong theory” and “right result-new theory” or that Gagnon

stood for the former, not the latter. No other Idaho case clearly explains the rationale behind the 

“right result-wrong theory” approach. 

However, a review of recent Idaho Supreme Court decisions and the origins of the “right 

result-wrong theory” cases in Idaho, beginning with the seminal case of Gagnon, suggest that the 

de novo standard of “right result-wrong theory” applies when multiple arguments have been 

presented to the district court and the district court decides the issue on one argument without 

deciding the other, alternative argument(s). A de novo standard of review should not be read so 

broadly as to permit parties to be absolved of their responsibility in the trial court, knowing that 

the appellate courts will consider all of the arguments and then decide the case on arguments that 

could have, but were not, raised below. Similarly, the de novo standard should not be read as a 

substitute for the preservation requirement and require the appellate courts to address issues not 

preserved in the district court. While parties may disagree on the definition of the word “issue,” 
15

the Idaho Supreme Court has defined the scope of preservation in the context of a motion to 

suppress and that definition is binding.

Thus, we hold that on a suppression issue, the State is bound by the legal concessions it 

made in the district court and is also limited to arguing on appeal the exceptions to the warrant 

requirement that were presented in the district court. In this case, the State’s concession was that

the marijuana tincture droplets and tissue paper should be suppressed. The State is now bound 

by that concession on appeal. The State did not argue that either the search incident to a valid 

arrest or inevitable discovery theories applied in the district court. Consequently, we decline to 

address either of those arguments on appeal. 

B. The Officer Did Not Unlawfully Extend Islas’s Detention

Turning to the merits of the arguments properly before the Court in this case, we 

conclude the district court correctly ruled the methamphetamine residue was properly admitted

because a review of the evidence offered at the suppression hearing shows the officer did not 

unlawfully extend Islas’s detention. However, because the State conceded the inadmissibility of 

the marijuana tincture droplets and the tissue paper in Islas’s pocket, to the extent the district 

court’s order denying the motion to suppress addressed the marijuana and tissue paper, the order 

was incorrect. Consequently, we reverse that portion of the district court’s order denying the 

suppression of the marijuana tincture drops and tissue paper and remand the case for further 

proceedings consistent with this opinion. 

The evidence shows that during the course of the officer’s encounter with Islas, the 

officer investigated Islas for four different suspected crimes. First, the officer observed Islas 

violate I.C. § 49-903 by driving on a public roadway after sunset without his headlights on. This 

observation provided probable cause for the officer to stop Islas’s vehicle. 

When the officer spoke with Islas, the officer detected an odor of alcohol and observed

Islas’s glassy, bloodshot eyes and his unzipped pants. These indicators of possible intoxication 

provided the officer with reasonable suspicion that Islas was committing a second crime of

driving under the influence of alcohol (DUI). Thus, the officer began another investigation, 

independent of Islas’s failure to use his headlights. 

In addition, the officer also observed the glass pieces in Islas’s lap, although the officer

did not know what they were. However, when Islas exited the vehicle and the glass pieces fell to 

the ground, the officer observed “an additional piece that drew special attention.” He looked at it 
16

briefly and then took Islas to the back of the vehicle. The officer’s observation of the glass 

pieces provided him reasonable suspicion that Islas was committing a third crime of possession 

of drug paraphernalia. 

The officer, unable to simultaneously investigate the DUI and paraphernalia charges, 

returned to his DUI investigation and conducted the horizontal nystagmus test. After the test, the 

officer determined Islas was not under the influence of alcohol and concluded his DUI 

investigation. The officer then returned to his pending paraphernalia investigation and closely 

examined the glass pieces on the ground. After observing the thick coat of a white and brown 

crystalline substance on one of the pieces, the officer believed the substance to be 

methamphetamine and, thus, the officer had probable cause to arrest Islas for possession of drug 

paraphernalia.

To confirm the substance was methamphetamine, the officer conducted a field test which 

indicated a presumptive positive identification. That test, as well as the officer’s initial

observation of the substance, provided the officer with reasonable suspicion that Islas was 

committing a fourth crime, possession of methamphetamine. To pursue this investigation, the 

officer called a drug dog, which alerted on Islas’s vehicle. This alert provided the officer with 

probable cause to search Islas’s vehicle, where more evidence of paraphernalia and 

methamphetamine were found.

The officer had multiple crimes to investigate but could only investigate one crime at a 

time. The initial stop gave rise to at least two additional crimes, and the officer was continuously 

investigating the crimes when he obtained additional probable cause for a fourth crime. 

Consequently, the officer did not unlawfully extend Islas’s detention.

IV.

CONCLUSION

The State’s arguments regarding exceptions to the warrant requirement that were not 

raised in the district court will not be considered on appeal. The officer did not unlawfully 

extend Islas’s detention. To the extent the district court’s denial of Islas’s suppression motion 

applied to the marijuana tincture droplets and tissue paper from Islas’s pocket, the district court 

erred and that portion of the order denying the motion to suppress is reversed. The district court 

did not error as to the suppression of the remainder of the order. Because we do not know if 

there was other evidence or reasons that supported Islas’s guilty plea to the marijuana charge, we 
17

decline to vacate the conviction. Instead, the case is remanded for proceedings consistent with 

this opinion. 

Chief Judge GRATTON and Judge LORELLO CONCUR.

3

 

 3 Judge Gutierrez did not participate in this opinion due to his retirement.