               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44007

STATE OF IDAHO,                                 )   2016 Unpublished Opinion No. 822
                                                )
       Plaintiff-Respondent,                    )   Filed: December 23, 2016
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
MARTIN GUZMAN AMBRIZ,                           )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

       Order denying motion to suppress and judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Martin Guzman Ambriz appeals from his judgment of conviction for felony driving under
the influence, arguing the district court erred by denying his motion to suppress. Ambriz argues
the stop of his vehicle violated his Fourth Amendment rights because the officers did not have
reasonable suspicion that Ambriz committed a traffic violation or that he was driving under the
influence. Ambriz also asserts the State cannot raise for the first time on appeal the argument
that Ambriz committed a traffic violation, thereby providing reasonable suspicion for the traffic
stop. The State argues the officers had reasonable suspicion that Ambriz was driving under the
influence because he drove off the roadway and made jerky, side-to-side movements within his
lane of travel. Further, the State argues the officers had reasonable suspicion that Ambriz
violated Idaho Code Sections 49-630(1) and 49-637(1), and thus the stop was legally justified.
We affirm.



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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
        Two officers observed Ambriz make a left-hand turn onto E. 16th Street in Burley, Idaho.
One officer testified that when Ambriz “made that turn, [he] actually hit the gravel on the right-
hand side of the road and then [he] came back onto the roadway.” Although the meaning of the
statement is unclear, the officer testified that both sides of the passenger-side tire went into the
gravel. When Ambriz returned to the roadway, the officers followed Ambriz for several blocks
and observed him make a proper right-hand turn. The second officer testified as Ambriz “made
the right-hand turn, the vehicle like shook side to side and made like quick, jerky motions,” but
the vehicle did not leave its lane. The officers initiated a traffic stop because Ambriz “went off
the road into the gravel, and then he kept doing the side-so-side [sic] jerk.” The dashboard
camera on the patrol car began recording after Ambriz drove into the gravel and returned to his
lane.
        Once the officers stopped Ambriz and made contact, both officers testified they
recognized signs of impairment in Ambriz so they conducted field sobriety tests upon Ambriz.
Ambriz failed the field sobriety tests. The officers then administered a breathalyzer test, which
returned results of 0.209 and 0.195. Because Ambriz had previously been convicted for felony
driving under the influence, the State charged Ambriz with felony driving under the influence in
violation of I.C. §§ 18-8004 and 18-8005(6) and (9).
        Ambriz filed a motion to suppress the evidence seized as a result of the traffic stop,
arguing the stop violated his rights under the Fourth Amendment of the United States
Constitution and under the Idaho Constitution. The district court denied Ambriz’s motion to
suppress, finding:
        As set forth above, the deputies testified that the Defendant drove in the gravel on
        the side of 16th Street and made quick, jerky movements within his lane on
        Pomerelle Avenue. This driving pattern was not within the broad range of normal
        driving behaviors. In considering the totality of the circumstances, the deputies
        had a reasonable suspicion that the vehicle was being driven contrary to traffic
        laws or that other criminal activity was afoot.
Pursuant to a plea agreement, Ambriz conditionally pleaded guilty to felony driving under the
influence, reserving the right to appeal the district court’s denial of his motion to suppress. The
district court sentenced Ambriz to a unified term of seven years, with two years determinate, and
retained jurisdiction. Ambriz timely appeals.

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                                                  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).
                                                  III.
                                           ANALYSIS
       On appeal, Ambriz argues the officers did not have reasonable suspicion that Ambriz had
committed a traffic violation or was driving under the influence because Ambriz’s conduct was
within the broad range of normal driving behavior.
A.     The District Court Did Not Make Sufficient Findings of Fact for This Court to
       Determine Whether Ambriz Violated Idaho Code §§ 49-630(1) and 49-637(1)
       Ambriz contends because the State did not argue in district court that Ambriz committed
a traffic violation, the State cannot raise this argument for the first time on appeal. Additionally,
Ambriz argues the district court made no findings that Ambriz committed a traffic violation. The
State argues Ambriz committed a traffic violation under I.C. §§ 49-630(1) and 49-637(1) by
driving into the gravel on the side of the road. Although the State recognizes the district court
did not point to a specific statute that Ambriz violated, the State argues under the totality of
circumstances the officers had reasonable suspicion that Ambriz committed a traffic violation
when his passenger-side tires left the roadway.
        Appellate court review is limited to the evidence, theories, and arguments that were
presented below. State v. Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924 (2010). Issues not
raised below generally may not be considered for the first time on appeal. State v. Fodge, 121
Idaho 192, 195, 824 P.2d 123, 126 (1992). As such, the State cannot assert more reasons for
reasonable suspicion on appeal than were argued before the district court.             See State v.
Armstrong, 158 Idaho 364, 368, 347 P.3d 1025, 1029 (Ct. App. 2015) (constitutional arguments
not raised before lower courts are not preserved for appellate review). “An issue is different if it
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is not substantially the same or does not sufficiently overlap with an issue raised before the trial
court.” State v. Voss, 152 Idaho 148, 150, 267 P.3d 735, 737 (Ct. App. 2011) (citing State v.
Sheahan, 139 Idaho 267, 277-78, 77 P.3d 956, 966-67 (2003)).
       The broad issue--whether the officers had reasonable suspicion to stop Ambriz--was
raised both in the district court and in this Court. On appeal, however, the State asserts the
officers had reasonable suspicion to stop Ambriz because Ambriz violated I.C. §§ 49-630(1) and
49-637(1). In the district court, the State did not argue that violating these specific statutes
provided reasonable suspicion of a traffic violation. Therefore, the district court did not have an
opportunity to determine whether Ambriz’s driving behavior constituted a violation of
I.C. §§ 49-630(1) and 49-637(1). At the motion to suppress hearing, the first officer testified as
follows:
       Prosecutor: And why did you stop the vehicle?
       Officer One: Because [Ambriz] went off the road into the gravel, and then he
                    kept doing the side-so-side [sic] jerk. So I thought we would go
                    and initiate a traffic stop.
The second officer testified as follows:
       Prosecutor:  So there was no violation of any traffic law other than this little
                    shaking movement?
       Officer Two: The violation occurred prior to the camera activating when
                    [Ambriz] left the roadway on 16th Street.
The district court found Ambriz drove into the gravel on the side of 16th Street and made quick,
jerky movements within his lane of travel. The district court concluded these instances were not
within the broad range of normal driving behaviors, and under the circumstances the officers had
reasonable suspicion that Ambriz was driving contrary to traffic laws or that other criminal
activity was afoot.
       Here, the officers testified as to what behavior Ambriz exhibited that they believed
violated a traffic statute.   However, although the second officer mentioned that Ambriz
committed a traffic violation, the officer did not specify by title or elements which statutes
Ambriz violated. Without knowing the statutes or the elements of the statutes to which the
officer referred, it is unclear how the district court determined that Ambriz violated a statute,
thereby providing reasonable suspicion of a traffic code violation.1


1
       Even if we are required to examine the record to determine whether there was substantial
evidence to support the district court’s implicit finding that Ambriz committed a traffic code
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        The State may not argue on appeal to affirm the district court based on an argument that
was never presented to the district court for consideration. See Armstrong, 158 Idaho at 368, 347
P.3d at 1029. Appellate courts are forums of review, not decision in the first instance. To assert
in district court that Ambriz violated a traffic statute, without indicating what statute was
violated or providing the elements of the statute, does not fairly include an argument on appeal
that there was a violation of I.C. §§ 49-630(1) and 49-637(1). Here, the State provided testimony
on Ambriz’s driving behavior that the State believed violated a statute, but it did not identify a
statute or the elements of a statute so the district court could determine whether Ambriz’s
behavior violated a statute. As such, the specific foundation for the State’s argument was not
raised before the district court. For example, if an officer testified a driver was speeding, there
must be evidence of the speed limit for the district court to conclude the driver’s speed violated
that speed limit. This illustrates why the State must proffer either the specific statute or the
elements of the statute in order to establish a factual basis justifying a traffic stop for a traffic
violation. See State v. Higgins, 122 Idaho 590, 597, 836 P.2d 536, 543 (1992) (holding although
more frequently cited for evidentiary questions, an objection on one ground will not preserve for
appeal a separate and different basis for objection not raised before the trial court).
       Nevertheless, where a ruling in a criminal case is correct, though based upon an incorrect
reason, it still may be sustained upon the proper legal theory. State v. Diaz, 158 Idaho 629, 636,
349 P.3d 1220, 1227 (Ct. App. 2015). We can freely apply law to the facts as found by the
district court if those facts are supported by substantial evidence. Idaho Code Section 49-637, in
relevant part, provides:
             Whenever any highway has been divided into two (2) or more clearly
       marked lanes for traffic the following, in addition to all else, shall apply:
             (1) A vehicle shall be driven as nearly as practicable entirely within a
             single lane and shall not be moved from that lane until the driver has first
             ascertained that the movement can be made with safety.
Idaho Code Section 49-630(1) states with certain exceptions not relevant in this case, “[u]pon all
highways of sufficient width a vehicle shall be driven upon the right half of the roadway . . . .”




violation, see State v. Floyd, 159 Idaho 370, 372, 360 P.3d 379, 381 (Ct. App. 2015), on the
record before us, there is no substantial evidence to support an implicit finding that Ambriz
committed a traffic code violation.
                                                  5
       Here, because neither the statutes nor the elements of the statutes were identified in the
district court, the court did not make sufficient, relevant factual findings for us to review the
district court’s decision. As noted above, although the district court made findings relative to
Ambriz’s driving, the district court did not make findings of fact relative to the elements of the
statutes; for example, whether E. 16th Street contained clearly marked lanes for traffic or
whether E. 16th Street was of sufficient width such that Ambriz did not need to drive in the
gravel. As such, because the district court did not make sufficient findings of fact, this Court
does not have a sufficient factual basis to analyze whether the district court correctly determined
the officers reasonably suspected that Ambriz violated either I.C. §§ 49-630(1) and 49-637(1).2
B.     The Officers Had Reasonable Suspicion That Ambriz Was Driving Under the
       Influence When Ambriz Drove Into the Gravel on the Right Side of the Road While
       Making a Left-Hand Turn and Made Quick, Jerky Movements Within His Lane
       Nonetheless, while committing a traffic violation may provide reasonable suspicion to
justify a traffic stop, it is not the only basis upon which officers may initiate a traffic stop.
Limited investigatory detentions are permissible when justified by an officer’s reasonable,
articulable suspicion that a person has committed, or is about to commit, a crime. State v.
Morgan, 154 Idaho 109, 112, 294 P.3d 1121, 1124 (2013). “Thus there are two possible
justifications for a traffic stop--the officer has reasonable suspicion that a driver has committed
an offense, such as a traffic offense, or the officer has reasonable suspicion of other criminal
activity, such as driving under the influence.” State v. Neal, 159 Idaho 439, 442, 362 P.3d 514,
517 (2015). Here, even if the officers did not have reasonable suspicion that Ambriz committed
a traffic violation, the officers still had reasonable suspicion that Ambriz was driving under the
influence.
       A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates
the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v.
Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at 561, 916 P.2d at 1286. Where an
officer claims a reasonable suspicion of criminal activity to justify a traffic stop, the
reasonableness of the suspicion must be evaluated upon the totality of the circumstances at the
time of the stop. State v. Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The


2
        Upon review of the record, there is no evidence indicating the road was of sufficient
width or had clearly marked lanes. In fact, the officers’ dash camera indicates E. 16th Street did
not have clearly marked lanes.
                                                6
reasonable suspicion standard requires less than probable cause but more than mere speculation
or instinct on the part of the officer. Id. An officer may draw reasonable inferences from the
facts in his or her possession, and those inferences may be drawn from the officer’s experience
and law enforcement training. State v. Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct.
App. 1988).
       Citing to State v. Emory, 119 Idaho 661, 809 P.2d 522 (Ct. App. 1991) and Neal, Ambriz
argues that his driving into the gravel and making quick, jerky movement within his lane of
travel falls within a range of normal driving behavior and, therefore, could not create reasonable
suspicion of driving under the influence. The State argues the officers’ observations of Ambriz
driving into the gravel on the side of the road and making quick, jerky movements within his
lane of travel provided reasonable suspicion of driving under the influence.
       In Emory, this Court considered whether an officer had reasonable suspicion to stop
Emory for driving under the influence. We explained that the evidence adduced by the officer
“could just as easily be explained as conduct falling within the broad range of what can be
described as normal driving behavior.” Emory, 119 Idaho at 664, 809 P.2d at 525. In particular,
the officer observed Emory’s vehicle not move for five or six seconds after the light turned
green; correctly proceed through another green light; and drive straight down a street, although
close to parked cars. Id. at 662, 809 P.2d at 523. This Court held the officer did not observe any
activity supporting a reasonable suspicion of driving under the influence. Id.
       Conversely, in Atkinson, 128 Idaho at 560, 916 P.2d at 1285, the Court found the officer
had reasonable suspicion of driving under the influence when the officer observed Atkinson’s
vehicle “twice in two blocks of travel veer to the left and touch or cross over the center line.
After the second such movement to the left, the vehicle swerved back across its lane of travel and
touched the fog line on the extreme right side of the traffic lane.” Id. at 561, 916 P.2d 1286. The
Court further acknowledged that “although Atkinson’s vehicle never entirely left its lane of
travel, this weaving pattern, with the vehicle three times touching the lines on edges of the lane,
was not within the range of normal driving behavior and was an objective indication that the
driver was impaired.” Id.
       The facts presented in this case are more like Atkinson than Emory. Unlike Emory who
drove straight and stayed within his lane of travel, Ambriz went into the gravel on the right side
of the road while making a left-hand turn and then made quick, jerky movements within his lane

                                                7
of travel. While Ambriz’s quick, jerky movements alone are not sufficient to provide reasonable
suspicion of driving under the influence, see Neal, 159 Idaho 439, 362 P.3d 514, this Court has
previously upheld lower courts’ determinations that, when combined with other factors, weaving
on the roadway provided reasonable suspicion of driving under the influence. See State v.
Flowers, 131 Idaho 205, 953 P.2d 645 (Ct. App. 1998); Atkinson, 128 Idaho 559, 916 P.2d 1284;
State v. Waldie, 126 Idaho 864, 893 P.2d 811 (Ct. App. 1995). Like Atkinson, Ambriz’s driving
into the gravel on the side of the road while making a left-hand turn and then immediately
jerking within the lane of traffic are not within the range of normal driving behavior and are an
objective indication that Ambriz was impaired. These two instances of concern provided the
officers with reasonable suspicion that Ambriz was driving under the influence. As such, the
district court correctly determined the officers had reasonable suspicion to stop Ambriz for
driving under the influence.
                                              IV.
                                        CONCLUSION
       The district court did not make sufficient findings of fact for this Court to determine
whether Ambriz committed a traffic violation under I.C. §§ 49-630(1) and 49-637(1). Even if
the officers did not have reasonable suspicion that Ambriz committed a traffic violation, under
the totality of circumstances the officers had reasonable suspicion that Ambriz was driving under
the influence. Therefore, the order of the district court denying Ambriz’s motion to suppress
evidence and judgment of conviction are affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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