Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge; Hon. Michael J. Oths, Magistrate.
The opinion of the court was delivered by: Gutierrez, Judge
District court's intermediate appellate decision affirming magistrate's denial of motion to suppress evidence, affirmed.
Joseph A. Voss, Jr. appeals the district court's intermediate appellate decision affirming the magistrate's denial of his motion to suppress evidence, contending the search of his vehicle on school grounds violated his Fourth Amendment rights. Voss argues the warrantless search without probable cause under the schoolyard search exception is unconstitutional as applied to him because: (1) it was based only on suspicion that he was in possession of tobacco; and (2) Voss is the age of majority and may legally possess tobacco products. For the reasons set forth below, we affirm.
On April 8, 2009, the assistant principal at Timberline High School received information from an unknown person that Voss was unsafely driving his vehicle on school grounds. When the assistant principal later approached Voss to discuss the incident, he smelled cigarette smoke on Voss's person. Though the assistant principal knew Voss was eighteen years old and of legal age to smoke or possess tobacco, a student's possession of tobacco on school grounds was against the school district's policy.*fn1 Believing that Voss would have cigarettes in his car, the assistant principal decided to search Voss's vehicle in accordance with school policy and practice.
The assistant principal enlisted the help of the school resource officer. Both individuals searched the vehicle and found a glass pipe with marijuana residue and a set of brass knuckles. Voss was cited for misdemeanor possession of drug paraphernalia and carrying a concealed weapon. Voss filed a motion to suppress the evidence on the basis the search of the vehicle violated his right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution, which the magistrate denied. Using the test for reasonableness of schoolyard searches articulated by the United States Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985), the magistrate found the search was: (1) justified at its inception because of the school policy prohibiting possession of tobacco products by all students; and (2) reasonably related in scope to the suspected offense. Voss then entered a conditional guilty plea, reserving his right to appeal the order denying his motion to suppress.
Voss appealed and the district court affirmed the magistrate's order. After the decision in district court, Voss filed a motion for reconsideration arguing that because he was of legal age to possess and use tobacco, application of the school policy--not applicable to other adults connected with the school--was arbitrary and unreasonable. The district court denied the motion for reconsideration, finding the issue presented was not preserved for review. Voss filed a timely appeal regarding the motion to suppress to this Court, and we now consider whether the issue has been preserved and if so, whether the search was reasonable under principles of the Fourth Amendment.
We directly review decisions by the district court, rendered in its appellate capacity. State v. Hudson, 147 Idaho 335, 337, 209 P.3d 196, 198 (Ct. App. 2009). We examine the magistrate record to determine whether substantial and competent evidence supports the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Id. If those findings are so supported, and the conclusions follow therefrom, and if the district court affirmed the magistrate's decision, we affirm the district court as a matter of procedure. Id. In reviewing a motion to suppress, although we accept the trial court's findings of fact supported by substantial evidence, 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).
A. The Issue Has Been Preserved for Appeal.
The State argues the issue of whether the school could constitutionally apply its policy against Voss, as he was of legal age to possess tobacco, is not properly before this Court because it was not argued in the magistrate division, nor was there an adverse ruling on the issue by the magistrate. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Where a party appeals the decision of an intermediate appellate court, the appellant may not raise issues that are different from issues presented to the intermediate court. State v. Sheahan, 139 Idaho 267, 275, 77 P.3d 956, 964 (2003). An issue is different if it is not substantially the same or does not sufficiently overlap with an issue raised before the trial court. See id. at 277-78, 77 P.3d at 966- 67. To illustrate, the Idaho Supreme Court in Sheahan determined that even where the primary arguments made at trial were that unfair pretrial publicity and community prejudice deprived the defendant of a fair trial, the trial judge had considered all of the arguments on the issue of a fair trial made by the defendant on appeal. The Court ...