               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45134

STATE OF IDAHO,                                 )
                                                ) Filed: August 31, 2018
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
JUSTIN K. HOSKINS,                              )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

       Judgment of conviction for possession of a controlled substance, vacated.

       Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Justin K. Hoskins appeals from his judgment of conviction for possession of a controlled
substance. Hoskins argues that the district court erred in denying his motion to suppress. For the
reasons set forth below, we reverse the district court’s order denying Hoskins’ motion to
suppress and vacate Hoskins’ judgment of conviction.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer conducted a traffic stop on a vehicle in which Hoskins was a passenger.
During the course of the stop, the owner of the vehicle gave the officer consent to search. Once
the officer obtained consent to search, he asked Hoskins to exit the vehicle and instructed him to
leave his personal items in the car. One of the items Hoskins left was a pack of cigarettes.



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During the course of the vehicle search, the officer also searched Hoskins’ cigarette pack and
found marijuana and methamphetamine.
       The State charged Hoskins with possession of a controlled substance and a sentencing
enhancement based on a prior drug conviction. Hoskins filed a motion to suppress, asserting
that: (1) he had standing to challenge the search of his personal items; (2) the search of his
personal items was illegal; (3) the traffic stop evolved into an illegal detention because the
officer abandoned the original purpose of the stop in pursuit of a drug investigation; and (4) the
consent to search obtained from the owner of the vehicle was coerced. The State responded that:
(1) Hoskins had standing to challenge the stop and detention, but did not have standing to
challenge the consent to search or the search of his personal items; and (2) the length and scope
of the detention was reasonable. The district court denied Hoskins’ motion, concluding that:
(1) the length and scope of the detention was reasonable; (2) the vehicle owner’s consent to
search was valid; and (3) Hoskins lacked standing to challenge the search of the vehicle or his
personal items because both the detention and the vehicle owner’s consent to search were lawful.
       Hoskins entered a conditional guilty plea to possession of a controlled substance,
reserving his right to appeal the district court’s denial of his motion to suppress, and the State
agreed to dismiss the sentencing enhancement. The district court imposed a unified three-year
sentence, with one year fixed, but suspended the sentence and placed Hoskins on probation.
Hoskins appeals.
                                                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).




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                                               III.
                                           ANALYSIS
       Hoskins asserts that the district court erred when it denied his motion to suppress.
Specifically, Hoskins argues that the district court erroneously concluded that Hoskins lacked
standing to challenge the search of his personal items and erroneously concluded that the vehicle
owner’s consent extended to Hoskins’ personal items. The State concedes that the district court
erred in both respects. However, the State asks this Court to affirm the district court’s order “by
applying the correct legal standards” related to the plain view doctrine--an exception to the
warrant requirement the State advances for the first time on appeal. In support of this exception,
the State “relies upon the evidence presented before the district court and not the court’s limited
factual findings,” which the State recognizes are not “fully developed.” The State asks this
Court to either affirm based on the “evidence presented” or remand “for the district court to
complete its findings based on the evidence already presented.” Hoskins replies that the State
may not raise an alternative theory to support the district court’s decision for the first time on
appeal. We agree with Hoskins.
       Appellate court review is limited to the evidence, theories, and arguments that were
presented below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). In
Garcia-Rodriguez, the Idaho Supreme Court stated that the “right result-wrong theory rule” only
applies where the trial court reached the correct result by way of erroneous legal reasoning. Id.
at 275-76, 396 P.3d at 704-05. The rule does not apply where the trial court does not engage in
any legal reasoning on a theory never presented to it. See id. The Court quoted the following
language from Smith v. Sterling, 1 Idaho 128, 131 (1867), in explaining its rationale:
       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.
 Garcia-Rodriguez, 162 Idaho at 276, 396 P.3d at 705.
       In State v. Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017), the Idaho Supreme
Court reiterated the limitation on the right result-wrong theory rule articulated in
Garcia-Rodriguez and applied it to a Fourth Amendment question of law subject to free review.


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In Cohagan, the defendant filed a motion to suppress all evidence seized as a result of his arrest.
In response to Cohagan’s motion, the State conceded that the defendant was illegally seized, but
argued that suppression was unwarranted because the discovery of methamphetamine was
sufficiently attenuated from the illegal seizure. Cohagan, 162 Idaho at 720, 404 P.3d at 662. On
appeal, the State argued that (although it previously conceded the illegality of the seizure),
because the Court was required to determine whether the interaction between Cohagan and law
enforcement was lawful, its concession in district court was not binding. Id. at 721, 404 P.3d at
663. The Idaho Supreme Court disagreed. In doing so, the Court recognized that whether a
seizure occurred is a question of law freely reviewed. But, citing Garcia-Rodriguez, the Court
stated it is “equally true” that issues not raised below will not be considered on appeal, and the
parties will be held to the theory upon which the case was presented to the lower court.
Cohagan, 162 Idaho at 721, 404 P.3d at 663; Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at
704.
       The Idaho Supreme Court again applied Garcia-Rodriguez in the context of a Fourth
Amendment suppression issue in State v. Fuller, 163 Idaho 585, 416 P.3d 957 (2018). In Fuller,
the defendant filed a motion to suppress evidence, claiming it was discovered following an
unlawful traffic stop. Id. at 587, 416 P.3d at 959. The basis of the traffic stop was for an alleged
violation of I.C. § 49-637(1).     The district court granted the motion, concluding that the
defendant was entitled to suppression because her driving did not violate the code section that
served as the basis for the stop. On appeal, the State argued the district court erred in its
interpretation of I.C. § 49-637(1). Fuller, 163 Idaho at 588, 416 P.3d at 960. The State also
argued that the traffic stop was proper based on reasonable suspicion that the defendant violated
I.C. § 49-630(1), a basis the State did not advance in district court. Fuller, 163 Idaho at 590, 416
P.3d at 962. As to the latter argument, the Idaho Supreme Court stated: “That section 49-630
was not raised below spells the fatal resolution of this argument on appeal.” Fuller, 163 Idaho at
591, 416 P.3d at 963.       The Court reiterated the proposition from Garcia-Rodriguez that
unpreserved issues will not be considered on appeal, and the parties will be held to the theory
upon which the case was presented to the lower court. Fuller, 163 Idaho at 591, 416 P.3d at 963;
Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704.




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       In this case, the State concedes its plain view theory was not presented to the district
court. Nevertheless, the State asks this Court to apply the “right result-wrong theory rule.” The
State does not, however, acknowledge or distinguish the Supreme Court’s recent decisions in
Garcia-Rodriguez or Cohagan, which both involved appeals of Fourth Amendment suppression
issues. Instead, the State relies on Row v. State, 135 Idaho 573, 579, 21 P.3d 895, 901 (2001), a
successive post-conviction appeal in which the Idaho Supreme Court held that the district court
erred in dismissing the petitioner’s ineffective assistance of appellate counsel claims on the
ground that the petitioner failed to show the claims could not have been raised in her initial
petition. The Court then applied the right result-wrong theory rule to affirm the dismissal on the
correct basis--the failure to support the claims with sworn statements setting forth the material
facts. Id. at 579-80, 21 P.3d at 901-02. The correct theory applied by the Court to affirm
dismissal was advanced by the State in its motion for summary dismissal. Id. at 576, 21 P.3d at
898 (noting the State moved for dismissal for failure to comply with I.C. § 19-2719(5), which
includes the sworn statement requirement). Thus, the Court applied the right result-wrong theory
rule in a manner consistent with its later opinions in Garcia-Rodriguez and Cohagan.
       At oral argument, when asked about the failure to cite Garcia-Rodriguez or Cohagan
(which were cited in Hoskins’ reply brief in response to the State’s new plain-view theory), the
State asserted Garcia-Rodriguez was not applicable because Garcia-Rodriguez involved a
request to reverse on the right theory as compared to its request to affirm in this case and that
Cohagan was not applicable because Cohagan involved a concession in district court which was
binding on appeal and no such concession was made in this case. While Garcia-Rodriguez may
be factually distinguishable based on the State’s request to reverse rather than affirm in that
case, 1 the distinction does not extend to the Court’s later application of Garcia-Rodriguez in
Cohagan and does not address the underlying rationale set forth in Garcia-Rodriguez. Although
there was an explicit concession in the district court in Cohagan, the State effectively made a
concession in this case by failing to present the plain view theory in the district court. It is


1
       Such a distinction finds some support in Garcia-Rodriguez based on the Court’s
statement in that case that it “decline[d] 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 276, 396 P.3d at 705.

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well-settled that the State bears the burden of proving an exception to the warrant requirement
when a warrantless search occurs. State v. LeClercq, 149 Idaho 905, 907, 243 P.3d 1093, 1095
(Ct. App. 2010). The State’s pursuit of one exception and not others operates as a concession
that other exceptions do not apply. An explicit concession like the one made in Cohagan is not
required in order for this Court to apply settled preservation principles. The relevant and obvious
legal principles from Garcia-Rodriguez, Cohagan, and Fuller are that unpreserved issues will
not be considered on appeal, and the parties will be held to the theory upon which the case was
presented to the lower court. The State failed to provide any cogent reason in briefing or at oral
argument as to why those principles do not apply here.
       After oral argument, the State submitted a letter of supplemental authority in which it did
not cite Fuller, 2 which was issued after the State’s briefing in this case, but prior to oral
argument. Instead, the State directed this Court’s attention to the Idaho Supreme Court’s recent
opinion in State v. Akins, ___ Idaho ___, ___ P.3d ___ (2018). In Akins, the Court considered a
challenge to the constitutionality of I.C. § 19-4301A, which imposes a duty to report a death and
makes the failure to do so a felony in certain circumstances. The Court held the statute was
unconstitutional as applied because it violated Akins’ Fifth Amendment privilege against
self-incrimination. Akins, ___ Idaho at ___, ___ P.3d at ___. In reaching this conclusion, the
Court stated:
               Although our analysis of section 19-4301A departs from that of the district
       court, we reach the same conclusion. Because we freely reviewed the same
       question that was at issue below, we find it appropriate to use the “right
       result-wrong-theory” rule to affirm the lower court’s dismissal of the charge.
       State v. Garcia-Rodriguez, 162 Idaho 271, 275-76, 396 P.3d 700, 704-05 (2017).
       In so doing, we also emphasize our rejection of the district court’s analysis
       [insofar] as it could be interpreted as a judgment on the statute’s constitutionality.
       Our holding here does not constitute a broad ruling on the general
       constitutionality of section 19-4301A, but instead is driven by the specific facts of
       this case.
Akins, ___ Idaho at ___, ___ P.3d at ___.



2
       It is unclear whether the State did not include Fuller in its letter of supplemental authority
because it believes it does not apply for the same reason it believes Garcia-Rodriguez does not
apply.

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       The parenthetical the State included in its letter of supplemental authority highlighted the
Court’s rejection of “the district court’s analysis [insofar] as it could be interpreted as a judgment
on the statute’s constitutionality” and its decision to affirm under the right result-wrong theory
rule because it “freely reviewed the same question that was at issue below.”                 By this
parenthetical, the Court assumes the State asserts that, so long as the appellate court freely
reviews “the same question that was at issue below,” it may employ the right result-wrong theory
rule in order to affirm. If that is the assertion, it is inconsistent with Cohagan. Moreover, in this
case, the State is asking the Court to do more than review the same questions that were presented
to the district court. The questions presented to the district court were whether Hoskins had
standing, whether the length and scope of the detention was reasonable, and whether the vehicle
owner’s consent to search was valid in relation to Hoskins’ belongings. The question was not
whether the plain-view exception applied. The State asks us to answer this question for the first
time on appeal based on the entirety of the evidence presented without limitation to the district
court’s factual findings. This is precisely the type of request that is foreclosed by the underlying
rationale set forth in Garcia-Rodriguez. Nothing in Akins compels us to reach a different result
because nothing in Akins indicates that the parties on appeal argued different theories than those
presented to the district court. To the contrary, the opinion indicates that “the parties debated the
same question on appeal” which was presented to the district court without mention of whether
either party pursued a different theory on appeal. Akins, ___ Idaho at ___, ___ P.3d at ___. The
Court’s departure from the district court’s analysis in Akins appears to be based on the Court’s
conclusions after reviewing the statute, the applicable law, and the facts and not based upon new
theories presented by the parties that were not preserved or factual findings made for the first
time on appeal. To that end, Akins does not conflict with Garcia-Rodriguez, Cohagan, or Fuller
and does not support the State’s request to this Court to depart from the principles that
unpreserved issues will not be considered on appeal, and the parties will be held to the theory
upon which the case was presented to the lower court.
       The State’s request to apply the right result-wrong theory rule using a theory never
presented to the district court is contrary to law. The State’s related request that this Court either
discern facts from the evidence presented that are “consistent” with the district court’s limited
factual findings or, alternatively, remand the case for additional findings on an unpreserved


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theory is also contrary to law. Accordingly, we decline to address the State’s plain view theory
or remand this case for further findings. Because the State has conceded error in the district
court’s actual decision, we reverse the district court’s order denying Hoskins’ motion to suppress
and vacate the judgment of conviction.
                                               IV.
                                         CONCLUSION
       The State concedes that the district court’s reasoning for denying Hoskins’ motion to
suppress was erroneous. Because the State did not assert the plain view theory to the district
court as an alternative basis for denying Hoskins’ motion to suppress, we will not address it for
the first time on appeal. This Court will also not remand to the district court to consider the
State’s plain view theory. Accordingly, the district court’s order denying Hoskins’ motion to
suppress is reversed, and Hoskins’ judgment of conviction for possession of a controlled
substance is vacated.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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