               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45174

STATE OF IDAHO,                                  )
                                                 ) Filed: December 5, 2018
       Plaintiff-Respondent,                     )
                                                 ) Karel A. Lehrman, Clerk
v.                                               )
                                                 )
RONALDO DEAN ISLAS,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       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 and judgment of conviction, affirmed.

       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. The judgment of conviction is
affirmed.
                                                 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
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



                                                 1
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.
       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

                                                  2
presented regarding the marijuana and paraphernalia charges. The district court denied the
motion, but did not specify whether it was denying the motion in whole or only as to the
methamphetamine. The district court ordered the State to draft the order. The State did so,
making no mention of the evidence it had already conceded should be suppressed. Islas then
entered a conditional guilty plea to 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,
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

                                                 3
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).
                                               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

                                                4
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 argues that the district court incorrectly suppressed the
marijuana 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 result-
wrong 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.
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 are distinct concepts and serve very
different purposes. 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
                                                   5
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
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

                                                   6
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 result-
wrong theory” rationale. Id. at 721, 404 P.3d at 663. The State, making precisely the same
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


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.
                                                 7
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 result-
wrong 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
       stop was not illegal would sharply cut against our longstanding and recently re-
       affirmed 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


                                                   8
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.
       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 Garcia-
Rodriguez, 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


                                                  9
(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
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 Garcia-
Rodriguez, 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



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.”).
                                                 10
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
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.

                                                  11
        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.” Garcia-
        Rodriguez, 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).
        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
                                                12
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 result-
new 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.
       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.



                                                    13
       There are two reasons Gagnon does not stand for the proposition that the “right result-
wrong 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,”
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.



                                                14
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. 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
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


                                                 15
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. The district court did not err by denying Islas’s motion to suppress the
methamphetamine. The district court’s judgment of conviction is affirmed.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




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