                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 46432

STATE OF IDAHO,                                    )
                                                   )
                                                             Boise, February 2019 Term
                Plaintiff-Respondent,              )
v.                                                 )
                                                             Filed: July 10, 2019
                                                   )
SAMANTHA NICOLE COOK,                              )
                                                             Karel A. Lehrman, Clerk
                                                   )
                Defendant-Appellant.               )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Richard S. Christensen, District Judge.

       The order of the district court denying defendant’s motion to suppress is reversed;
       the judgment of conviction is vacated and remanded.

       State Appellate Public Defender’s Office, Boise, for appellant, Samantha Nicole
       Cook. Jenny Swinford argued.

       Idaho Attorney General’s Office, Boise, for respondent, the State of Idaho. Ted
       Tollefson argued.
                                 _____________________

STEGNER, Justice.
       This appeal is brought by Samantha Cook (Cook) as a result of the denial of her motion
to suppress evidence. Cook was pulled over by a police officer after the officer noticed her
vehicle lacked both front and rear license plates. As the vehicles slowed to pull over, the officer
noticed a piece of paper in the rear window of Cook’s car. Upon approaching the pulled-over
vehicle, the officer noticed that the piece of paper was a temporary registration permit, which
was unreadable due to condensation from rain earlier in the evening. The officer then spoke with
Cook, detected the smell of marijuana, searched her vehicle, located controlled substances, and
arrested her.
       Cook filed a motion to suppress the evidence obtained during the stop on the grounds that
the officer lacked probable cause to stop her vehicle. The district court denied Cook’s motion.
The district court found, based on State v. Kinch, 159 Idaho 96, 356 P.3d 389 (Ct. App. 2015),
that reasonable suspicion existed that Cook had violated Idaho Code section 49-432(4), which
requires a driver to display a permit “upon the windshield of each vehicle or in another
prominent place where it may be readily legible.” As a result, the district court found the seizure
legal and the evidence obtained after the seizure properly obtained. The Court of Appeals
affirmed. This Court granted Cook’s petition for review.
         On appeal, Cook argues, among other things, that the district court erred in denying her
motion to suppress because Idaho Code section 49-432(4) is unconstitutionally vague as applied
to her conduct. For the reasons set forth in this opinion, we conclude the statute is
unconstitutionally vague. We reverse the district court’s denial of Cook’s motion to suppress; we
vacate Cook’s conviction and remand for further proceedings.
                        I.    FACTUAL AND PROCEDURAL BACKGROUND
         On October 29, 2016, shortly after midnight, a Kootenai County Sheriff’s Deputy, Ryan
Jacobson (Jacobson), was traveling westbound in his patrol vehicle on Highway 53 in rural
Kootenai County. It had been raining that evening. As Jacobson drove past Cook, he noticed that
her car lacked a front license plate. He did not see a temporary permit displayed as he passed the
car. Once Jacobson passed Cook’s vehicle, he looked in his rearview mirror and noticed that the
vehicle also lacked a rear license plate. Jacobson then turned around in order to investigate
Cook’s vehicle.
         While following Cook, Jacobson was unable to see either a rear license plate or a
temporary permit. Jacobson also believed he witnessed Cook’s vehicle drive over the right-hand
fog line. 1 Jacobson activated his emergency lights. As the vehicles pulled over and were nearly
stopped, Jacobson observed a piece of paper displayed in the rear window of Cook’s vehicle. It
was difficult to see due to heavy condensation in Cook’s rear window.
         Once both vehicles were stopped, Jacobson walked towards Cook’s vehicle and only then
recognized that the piece of paper in the window was in fact a temporary registration permit.
Despite being right next to the temporary permit, Jacobson still could not read the expiration
date. Jacobson then contacted Cook, the sole occupant of the vehicle, in order to obtain
information from her. Once he collected Cook’s information, Jacobson walked back to his patrol
vehicle but first stopped again at the rear window to examine the temporary permit more closely.



1
  At the suppression hearing, the State argued that Cook’s crossing of the fog line established reasonable suspicion
for Jacobson to stop Cook’s vehicle. The district court, in reviewing the video, did not see Cook drive over the fog
line. In addition, it found this alleged traffic violation was not enough to effectuate the seizure. The State has not
challenged this finding on appeal. Consequently, this allegation cannot constitute a basis for Cook’s seizure.
Jacobson had to wipe the condensation off of the rear window in order to read the expiration
date. Only then was Jacobson able to determine the piece of paper was a valid temporary permit.
       Jacobson returned Cook’s information to her but asked her to step out of the vehicle and
speak with him. Cook obliged. At some point while speaking with Cook, Jacobson noticed that
Cook was unusually nervous. More importantly, he had also detected the odor of marijuana.
Upon questioning, Cook admitted that others had smoked marijuana in her vehicle earlier that
evening. Jacobson then searched the car based on the odor and Cook’s admission. He found both
heroin and methamphetamine. Cook was arrested and more contraband was found on her person,
including another controlled substance, Suboxone.
       Cook filed a motion to suppress, arguing that Jacobson did not have reasonable suspicion
to stop her car. The district court held a hearing on Cook’s motion. Jacobson was the only
witness. The district court later announced its oral decision denying the motion to suppress. The
district court reasoned that Cook’s temporary registration, although properly posted, was not
readily legible as required by Idaho Code section 49-432(4); therefore, Jacobson had reasonable
suspicion that Cook had violated the statute and any evidence stemming from the seizure was
admissible.
       After the district court’s ruling, Cook filed a motion to reconsider. In that motion, Cook
requested her previous argument—that Idaho Code section 49-432(4) was unconstitutionally
vague—be addressed, as it had not been specifically addressed in the district court’s prior oral
pronouncement. A hearing was held at which the district court explicitly found the statute
constitutional and denied Cook’s motion.
       Cook entered a conditional guilty plea to possession of heroin and paraphernalia; in
exchange, the State dropped the other two charges, and Cook preserved her right to appeal the
denial of her motion to suppress. The district court sentenced Cook to time served on the
paraphernalia charge and entered an order withholding judgment with two years of supervised
probation for the possession of heroin charge. Cook timely appealed. The Court of Appeals
affirmed. This Court granted Cook’s petition for 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. Schmierer, 159 Idaho 768, 770, 367 P.3d 163, 165 (2016).
               We review a district court’s order granting a motion to suppress evidence
       using a bifurcated standard of review. State v. Purdum, 147 Idaho 206, 207, 207
       P.3d 182, 183 (2009). This Court accepts the trial court’s findings of fact unless
       they are clearly erroneous, but may freely review the trial court’s application of
       constitutional principles in light of those facts. Id.
State v. Wulff, 157 Idaho 416, 418, 337 P.3d 575, 577 (2014).
       “Determinations of reasonable suspicion are reviewed de novo[,]” but “must be based on
the totality of the circumstances . . . .” State v. Morgan, 154 Idaho 109, 111, 294 P.3d 1121, 1123
(2013) (citing State v. Munoz, 149 Idaho 121, 127, 233 P.3d 52, 58 (2010)). This Court exercises
free review over statutory interpretation issues because they are questions of law. State v. Owens,
158 Idaho 1, 3, 343 P.3d 30, 32 (2015) (citing State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1,
17 (2013)). Likewise, claims that criminal statutes are unconstitutionally vague are reviewed de
novo. State v. Larsen, 135 Idaho 754, 756, 24 P.3d 702, 704 (2001); State v. Cobb, 132 Idaho
195, 197, 969 P.2d 244, 246 (1998).
               The void-for-vagueness doctrine is premised upon the due process clause
       of the Fourteenth Amendment to the U.S. Constitution. This doctrine requires that
       a statute defining criminal conduct be worded with sufficient clarity and
       definiteness that ordinary people can understand what conduct is prohibited and
       that the statute be worded in a manner that does not allow arbitrary and
       discriminatory enforcement. Village of Hoffman Estates v. Flipside, Hoffman
       Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). It is a basic
       principle of due process that an enactment is void for vagueness if its prohibitions
       are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294,
       33 L.Ed.2d 222 (1972). Furthermore, as a matter of due process, no one may be
       required at the peril of loss of liberty to speculate as to the meaning of penal
       statutes. United States v. Smith, 795 F.2d 841, 847 n.4 (9th Cir.1986), citing
       Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890
       (1939), Smith v. United States, cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95
       L.Ed.2d 535 (1987).
State v. Korsen, 138 Idaho 706, 711–12, 69 P.3d 126, 131–32 (2003), abrogated on other
grounds by Evans v. Michigan, 568 U.S. 313 (2013).

                                         III. ANALYSIS
A. Idaho Code section 49-432(4) is unconstitutionally vague.
       Cook argues that her motion to suppress should have been granted because Idaho Code
section 49-432(4) is unconstitutionally vague when applied to her case. Whether a statute is
unconstitutionally vague is a pure question of law and therefore reviewed de novo. See Larsen,
135 Idaho at 756, 24 P.3d at 704. A party claiming a statute is unconstitutional “must overcome a
strong presumption of validity.” Id. (quoting Olsen v. J.A. Freeman Co., 117 Idaho 706, 709, 791
P.2d 1285, 1288 (1990)). Likewise, “[a]ppellate courts are obligated to seek an interpretation of a
statute that upholds its constitutionality.” Id. (citing State v. Newman, 108 Idaho 5, 13 n.12, 696
P.2d 856, 864 n.12 (1985)). However, “[a] void for vagueness challenge is more favorably
acknowledged and a more stringent vagueness test will be applied where a statute imposes a
criminal penalty . . . .” Cobb, 132 Idaho at 198, 969 P.2d at 247 (citing Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982)).
         “The void for vagueness doctrine is an aspect of due process requiring that the meaning
of a criminal statute be determinable.” Cobb, 132 Idaho at 197, 969 P.2d at 246 (citing
Schwartzmiller v. Gardner, 752 F.2d 1341 (9th Cir. 1984)). “Due process requires that all ‘be
informed as to what the State commands or forbids’ and that ‘men of common intelligence’ not
be forced to guess at the meaning of the criminal law.” Id. (quoting Smith v. Goguen, 415 U.S.
566, 574, (1974)); Korsen, 138 Idaho at 712, 69 P.3d at 132. ”A statute is void for vagueness if it
fails to give adequate notice to people of ordinary intelligence concerning the conduct it
proscribes, or if it invites arbitrary and discriminatory enforcement.” Cobb, 132 Idaho at 197,
969 P.2d at 246 (citations omitted). A statute may be challenged as unconstitutionally vague on
its face or as applied to a defendant’s conduct.” Korsen, 138 Idaho at 712, 69 P.3d at 132. Cook
only contends the statute is unconstitutional as applied. Vagueness “as applied” can be shown in
two separate ways:
         To succeed on an “as applied” vagueness challenge, a complainant must show
         that the statute, as applied to the defendant’s conduct, failed to provide fair notice
         that the defendant’s conduct was proscribed or failed to provide sufficient
         guidelines such that the police had unbridled discretion in determining whether to
         arrest him [or her].

Id. 2 When analyzing vagueness, “[t]he words of a statute alleged to be unconstitutionally vague
should not be evaluated in the abstract, but should be considered in reference to the particular
conduct of the defendant challenging the statute.” Larsen, 135 Idaho at 757, 24 P.3d at 705
2
  This Court has announced, as a general principle, that the “void-for-vagueness doctrine . . . requires that a statute
defining criminal conduct be worded with sufficient clarity and definiteness that ordinary people can understand
what conduct is prohibited . . . .” Korsen, 138 Idaho at 711, 69 P.3d at 131; see also Larsen, 135 Idaho at 756, 24
P.3d at 704. After Korsen’s clear delineation of “facial vagueness” and “vagueness as applied,” the “ordinary
people” standard might appear to be applicable only to a facial vagueness analysis; this is not so. We find the
“ordinary people” standard remains a helpful tool in “as applied” analyses and will be utilized here. See Pines v.
Idaho State Bd. of Med., 158 Idaho 745, 756, 351 P.3d 1203, 1214 (2015).
(citing State v. Hansen, 125 Idaho 927, 877 P.2d 898 (1994); State v. Marek, 112 Idaho 860, 736
P.2d 1314 (1987)). Those words “are given their commonly understood, everyday meanings,
unless the legislature has provided a definition.” Id. (citing State v. Richards, 127 Idaho 31, 38,
896 P.2d 357, 364 (Ct. App. 1995)).
        We begin our analysis with the statute itself. Idaho Code Section 49-432(4) reads, in its
entirety:
        (4) A temporary permit shall be in a form, and issued under rules adopted by the
        [Idaho Transportation] board, and shall be displayed at all times while the vehicle
        is being operated on the highways by posting the permit upon the windshield of
        each vehicle or in another prominent place, where it may be readily legible.
We hold that this statute is unconstitutionally vague because it failed to inform Cook what she
needed to do in order to comply with the statute. This conclusion is driven by important
differences between this statute and those regulating the display of license plates.
        Idaho Code section 49-428(2) establishes the requirements necessary for displaying
license plates. That statute requires license plates to “be in a place and position to be clearly
visible, and shall be maintained free from foreign materials and in a condition to be clearly
legible . . . .” Idaho Code section 49-432(4) does not provide similar specificity. All the
temporary permit statute appears to require is that the permit be displayed in a location that
renders it readily legible and that it be displayed in that location while the vehicle is being
driven—the statute does not direct a motorist to keep the permit “clearly visible” or “maintained
free from foreign materials.” Instead, section 49-432(4) states that as long as the permit is posted
where it “may be readily legible” and remains there while the vehicle is operated on a highway,
then the motorist has complied with the statute. The legislature could have easily included
language requiring the permit to be “clearly visible” or “free from foreign materials,” which
would apprise a motorist that if her window were to fog over she would be in violation of the
statute. The legislature recognized that these factors would be important in the context of
displaying license plates. However, it did not use language requiring the same for temporary
permits.
        Although section 49-432(4) provides that a posted permit must be readily legible where
posted, it does not indicate a distance from which the permit must be readable. Contrast this to
Idaho Code section 49-443(1), which statute makes clear that license plates “shall be of
sufficient size to be plainly readable from a distance of seventy-five (75) feet during daylight.”
Again, section 49-432(4) does not contain the same specificity.
       In addition, section 49-432(4) requires the Transportation Board to promulgate rules to
establish the form of temporary permits. In our review of the Idaho Administrative Rules
promulgated by the Board, we were unable to find a rule that the Board has enacted which
creates a form for temporary permits. See, e.g., IDAPA 39.02.46, 39.03.81 (these Board rules
govern temporary permits yet fail to establish any form for the temporary permit). Consequently,
while the Board was obligated to create a form for the motoring public by promulgating a rule, it
has not done so.
       This Court has held that when an agency is tasked with the responsibility of providing
adequate guidance to warn individuals that specific conduct would be subject to punishment, yet
fails to do so, the underlying statute may be found unconstitutionally vague as applied to that
specific conduct. H & V Eng’g, Inc. v. Idaho State Bd. of Prof’l Engineers & Land Surveyors,
113 Idaho 646, 650, 747 P.2d 55, 59 (1987). Accordingly, without clear guidance from the Board
or the statute on whether the permit need only be readily legible at the time of posting or whether
the permit had to be readable from some distance away, it is impossible for a person of ordinary
intelligence to understand that she had not complied with the statute despite posting a valid
permit where statutorily directed. Likewise, it was reasonable for Cook to understand she had
complied with the statute when: she posted a valid permit that was issued to her, the permit was
posted in her rear windshield and was visible and readable when posted, and the permit remained
in that location while her vehicle was operated on the highway.
       In addition, case law analyzing section 49-432(4) has not provided the clarity needed to
apprise the motoring public of what is required in order to comply with the statute. In 2007, the
Idaho Court of Appeals determined that when a temporary permit was displayed in accordance
with section 49-432(4), it was presumed valid, and the mere existence of such a permit may not
“serve as the basis for reasonable suspicion” to effectuate a traffic stop. State v. Salois, 144 Idaho
344, 348, 160 P.3d 1279, 1283 (Ct. App. 2007) (referencing section 49-432(3), now renumbered
to subsection (4)). As a corollary, the Court of Appeals noted that reasonable suspicion may
arise, and the presumption of validity overcome, when “the invalidity of the permit, such as by
improper alteration, is obvious and discernable by the officer prior to stopping the vehicle.” Id.
Salois thus left the ordinary person with the same understanding that would be garnered through
a reading of the statute: so long as a valid permit is posted in a vehicle where “readily legible” at
the time of posting and remains posted in that location while the vehicle travels on a highway,
compliance with the statute has been achieved. Indeed, in Salois, the Court of Appeals held a
permit properly posted enjoys a presumption of validity, given no obvious and discernable
errors. Accordingly, under Salois, Cook would have understood her conduct to be in compliance
with section 49-432(4).
        Some years later, in 2015, the Court of Appeals applied Salois in State v. Kinch, 159
Idaho 96, 101, 356 P.3d 389, 394 (Ct. App. 2015). In Kinch, an officer could not read the
temporary permit while following the vehicle or after walking up to the window in which the
permit was displayed. Id. at 97, 99, 356 P.3d at 391, 392. This was because the permit was “bent,
somewhat crumpled, and obscured by a layer of condensation on the window . . . .” Id. Due to
the officer’s inability to read the permit, the court found that the presumption in Salois was
overcome as the permit was not “readily legible” in its posted location and thus not displayed in
accordance with 49-432(4). Id. at 101–02, 356 P.3d at 394–95. Necessarily, Kinch found, by
applying Salois, that the invalidity of the permit was obvious and discernable prior to stopping
the vehicle. See id.
        In so holding, the court implicitly required temporary permits to be “readily legible” from
some following distance, since an officer must be able to discern the obvious invalidity of the
permit before initiating the traffic stop as per Salois. Id. at 101 n.8, 356 P.3d at 394 n.8 (“[T]he
requirement in Salois that the officer must have reasonable suspicion that the temporary permit
violates the law before initiating the traffic stop strongly suggests that the permit must be readily
legible from the officer’s vehicle, at least at some distance . . . .”). Despite recognizing this (and
interpreting the context and plain language of section 49-432(4) to require a temporary permit to
“be readily legible from the vantage point of another vehicle on the road”), the court went to
great length to note that it was not resolving the issue of what distance a temporary permit must
be readily legible from, because the permit at issue was not readily legible from the officer’s
vehicle or a close distance. Id. at 100–101, 101 n.7, 356 P.3d at 393–394, 394 n.7.
        Regardless of the court’s ostensible avoidance of this distance question, the application of
Salois (and the court’s statutory interpretation analysis) makes it clear that the court read section
49-432(4) to require the permit be readily legible from a following vehicle. As noted, a plain
reading of the statute by the ordinary person does not apprise her of this requirement. Kinch has
placed a more onerous burden on the ordinary motorist than the statute; thus, Kinch’s
interpretation of section 49-432(4) demonstrates that it is unconstitutionally vague as applied to
Cook’s case. In addition, Kinch does not overcome the statute’s vagueness. At what distance
does the permit need to be “readily legible”? It remains unclear both upon reading the statute and
following Kinch. In order to avoid a vagueness challenge, the statute must provide sufficient
clarity and definiteness that a person of ordinary intelligence can understand what behavior is
required. Korsen, 138 Idaho at 711, 69 P.3d at 131. In addition, by not apprising the motoring
public of the distance from which a permit must be legible, the law “invites arbitrary and
discriminatory enforcement.” Cobb, 132 Idaho at 197, 969 P.2d at 246. Neither this statute, nor
our case law, afford that clarity. Even today, it is not possible to know how to comply with this
statute.
           Here, Cook placed a valid temporary permit in her rear windshield, where it was readily
legible, and it was in that location while she drove upon the highway. Based on a fair reading of
section 49-432(4) and Salois, this was all she needed to do to comply with the statute.
Eventually, condensation formed on her rear windshield and the permit became unreadable.
Under Kinch, this was enough to elevate her conduct, the same conduct which was compliant
under the statute, to a violation. However, in order to reach this result, the Court of Appeals had
to read into the statute words that were not used by the legislature in this context. The court
seemingly infers the requirement that the permit be “clearly visible” and “free from foreign
materials,” even though the operative statute does not contain this language.
           When all is said and done, the current wording of the statute undermined Cook’s ability
to discern what conduct was required so that she might properly conform her behavior to the law.
Idaho Code section 49-432(4) does not apprise Cook that she must keep the permit “clearly
visible” or “free from foreign materials.” Nor does it provide guidance regarding the permit’s
visibility from a certain distance. Nor did the Board create a form temporary permit as directed
by the legislature. Given all of this, we conclude section 49-432(4) is unconstitutionally vague as
applied to Cook’s conduct. Because section 49-432(4) did not provide Cook adequate notice of
what was required, it did not provide Jacobson with legal cause to effectuate the traffic stop
leading to discovery of contraband. Consequently, Cook’s motion to suppress should have been
granted. See Burton v. State, Dep’t of Transp., 149 Idaho 746, 750, 240 P.3d 933, 937 (Ct. App.
2010). Because we reverse the denial of Cook’s motion to suppress on these grounds, Cook’s
additional arguments need not be addressed.
                                     IV. CONCLUSION
       For the stated reasons, we reverse the district court’s denial of Cook’s motion to
suppress; we vacate Cook’s conviction and remand for further proceedings.
       Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER, CONCUR.
