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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38366
STATE OF IDAHO,                                                                                     )                                                                                  2011 Opinion No. 70
)
Plaintiff-Respondent,                                                                               )                                                                                  Filed
                                                                                                    )                                                                                  November 23, 2011
v.                                                                                                  )
                                                                                                    )                                                                                  Stephen W. Kenyon, Clerk
JOSEPH A. VOSS, JR.,                                                                                )
)
Defendant-Appellant.                                                                                )
)
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.
District court’s intermediate appellate decision affirming magistrate’s denial of
motion to suppress evidence, affirmed.
John Meienhofer, Boise, for appellant.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  John  C.  McKinney,  Deputy
Attorney General, Boise, for respondent.  John C. McKinney argued.
GUTIERREZ, Judge
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.
I.
FACTS AND PROCEDURE
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
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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.1   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
1                                                                                                       In relevant part, Boise School District Rule 3233 states:
A student is in violation of District policy if he/she is involved in school
related or non-school related drug use as defined herein.
For the purposes of this policy, drug use is defined as the involvement
with drug paraphernalia, controlled substances, or drugs, including alcohol or
tobacco in any of the following ways:
B. Securing, Using, Possessing
•   attempting to secure or purchase
•   using or the reasonable suspicion of having used
•   possessing
School  related  drug  use  is  a  violation  which  occurs  on  any  District
premises . . . including, but not be limited to . . . District parking areas . . .
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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.
II.
STANDARD OF REVIEW
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).
III.
DISCUSSION
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
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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 stated,  “The trial judge recognized and
addressed these issues as falling within the factors to be considered,” and thus, they were
preserved.   Id. at 278, 77 P.3d at 967.   In other words, the issues raised on appeal, though
expanded upon, were substantially the same as those argued before the trial court.
We conclude Voss preserved the issue of age as it relates to the reasonableness of the
search under his Fourth Amendment rights because his arguments have continually focused on
whether a student’s age limits the application of the schoolyard search exception.   To the trial
court, Voss argued two points in his motion to suppress, the second of which included an
argument regarding the effect of his age.2   Voss contended the search conducted under the
schoolyard exception articulated in T.L.O., which allows warrantless searches of students on
school grounds under a relaxed standard of reasonable suspicion, was unreasonable where in
light of his age, the alleged conduct supporting the search would not have been a crime.   Voss
cited to Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S. ___, 129 S. Ct. 2633 (2009) and
T.L.O., which govern searches of students on school grounds and noted the limitation of such
searches:   the scope of such a search is permissible where it is “not excessively intrusive in light
of the age and sex of the student and the nature of the infraction.”  Redding, ___ U.S. at ___, 129
S. Ct. at 2642; TL.O, 469 U.S. at 342 (emphasis added).   Voss went on to say, “The search for
tobacco products in [my] car is even more problematic in view of the fact that [I] was 18 at the
time of the search, and therefore could lawfully possess tobacco products.”   (Emphasis added.)
In its decision on the motion, the magistrate recognized Voss was eighteen years old at
the time of the search and addressed age as falling within the factors to be considered.   Also,
citing the authority in Redding and T.L.O., the magistrate found that although possession of
tobacco by Voss would not have been a crime because of his age, the authority in those cases
spoke in broader terms of a school’s power to enforce its rules as to all students.
2                                                                                                       Voss’s first argument was that the search, to be constitutional, required a finding of
probable cause that a crime had been committed because the search was conducted in part by law
enforcement, and considering he was of age to legally smoke, there was no basis to make such a
finding.   Voss argued this issue to the magistrate, who first rejected it.   He appealed to the
district court, which also ruled against him.   On appeal to this Court, Voss does not renew this
argument and we, therefore, do not consider it.
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In his intermediate appellate brief, Voss renewed the argument regarding his age.   The
issue  of  age  in  this  case  was  initially  recognized  by  the  magistrate  as  a  factor  to
consider--ultimately, deciding it did not change the outcome--and Voss’s developing arguments
on the issue have all been maintained under the authority in Redding and T.L.O.   Indeed, Voss’s
argument now hones in on the school policy prohibiting an adult student’s possession of tobacco
on school grounds and why the search failed to be justified at its inception.   However, the test
under  T.L.O.,  requiring  a  schoolyard  search  to  be  justified  at  its  inception,  is  a  test  for
reasonableness and Voss’s focus is merely derivative of a broader argument that, because of his
age and  the suspected  offense,  the search was  not  reasonable.    Though  more specifically
developed on appeal, Voss has presented the issue of his age from the inception of this case.
Therefore, Voss presents substantially the same argument and has preserved the issue.
B.                                                                                                           The Search Was Reasonable Under Fourth Amendment Principles.
In articulating to this Court why his age makes the search unreasonable, Voss argues the
search did not meet the first requirement of the two-part test articulated in T.L.O. because it was
not “justified at its inception.”   He contends the search was not justified because there is no
rational basis for applying a school policy--regulating student possession of alcohol, tobacco, and
drugs--in a way that prohibits the possession of cigarettes in an adult student’s car.3
The seminal case on how the Fourth Amendment applies to searches of students on
school grounds is New Jersey v. T.L.O., 469 U.S. 325 (1985).   In T.L.O., the United States
Supreme Court held students do maintain a constitutional right against unreasonable searches
and seizures on school grounds, but carved out an exception to the warrant and probable cause
requirements of the Fourth Amendment as it applies to students in schools.   Based on balancing
the special needs of the schools to maintain order against the invasion the search entails, the
Court found that requiring a warrant based on probable cause would undercut a school’s ability
to enforce its rules.  Yet, in order to ensure the search of a student on school grounds by a school
official is reasonable, the Court articulated a two-part test that must be met:   the search must be
(1) justified at its inception and (2) reasonably related in scope to the circumstances.   Id. at 341.
To be justified at its inception, there must be reasonable grounds to believe the search will reveal
evidence of the violation of a law or school rule under investigation, supported by reasonable
3                                                                                                            The State does not address the merits of the issue in its briefing to this Court.
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suspicion that the evidence will be found in the placed searched.   Id. at 342, 345-46.   In other
words, the first prong determines whether a person or place can justifiably be searched, and the
second prong examines the manner and extent of that search.
In applying the first prong of the test to the facts of the case before it, the United States
Supreme Court found a search of a student’s purse reasonable where the student, who was
fourteen years old, was reported as having smoked in the school restroom.   The report provided
the school official reason to suspect the student was carrying cigarettes with her and the obvious
place to carry them would be her purse.                                                                    “[I]t was the sort of common-sense conclusio[n] about
human behavior upon which practical people--including government officials--are entitled to
rely.”    Id. at                                                                                           346  (citations omitted).    Though possession of cigarettes by itself was not a
violation of school rules, smoking in that area of school grounds did violate school policy, and
possession  of  cigarettes  would  corroborate  the  report  that  she  was  smoking.    The  school
official’s reasonable suspicion that she would have cigarettes in her purse provided the nexus
between the place searched and the infraction being investigated.4   Id. at 346.   Thus, the search
was justified.
In a later case, the United States Supreme Court further refined what constitutes a
reasonable search under the schoolyard exception articulated in T.L.O.   In Safford Unified Sch.
Dist. No.  1 v. Redding,  ___ U.S.  ___,  129 S. Ct.  2633, a school official strip-searched a
thirteen-year-old female student believed to be in possession of prescription and over-the-counter
pain pills.   The Court found the search of Redding, her backpack, and her outer clothes was
justified at its inception, as possession of the pills was a violation of school rules and the school
officials  received  information  the  student  was  involved  in  distributing  such  pills  to  other
students.   Id. at ___, 129 S. Ct. at 2641.   However, the Court found the scope of the search was
excessively intrusive under the second prong of the test in T.L.O. because the grounds of the
suspicion, justifying the search, did not support extending the search to look for pills within the
student’s underwear.  Id. at ___, 129 S. Ct. at 2641-43.
In examining the authority in the above cases, we hold that the search of Voss’s vehicle
was  justified  at  its  inception.    Both  T.L.O.  and  Redding  indicate  that  the  reason  for  the
4                                                                                                          The Supreme Court also found that extending the scope of the search to a zippered pocket
in the purse to search for evidence of drug use was reasonable, justified by first finding cigarette
rolling papers which was consistent with use of marijuana.
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schoolyard search exception to the warrant and probable cause requirements is precisely for the
swift enforcement of school policies that maintain the order and safety of the educational
atmosphere.   As such, the assistant principal could justify the search of Voss’s vehicle on school
grounds based solely on reasonable suspicion that Voss was in possession of tobacco in violation
of school policy--even if it would not otherwise constitute a crime.
In holding that a search may be justified at its inception because of reasonable suspicion
the student is violating only a school rule that may or may not also constitute a crime, we find
language in T.L.O. particularly persuasive.   There, the Supreme Court stated that a search of a
student by a school official “will be ‘justified at its inception’ when there are reasonable grounds
for suspecting that the search will turn up evidence that the student has violated or is violating
either the law or the rules of the school.”    T.L.O.,  469 U.S. at  341-42  (emphasis added).
Additionally, when the Supreme Court dispensed with the warrant requirement, it noted that
having to obtain a warrant “before searching a child suspected of an infraction of school rules (or
of the criminal law) would unduly interfere with the maintenance of the swift and informal
disciplinary procedures needed in the schools.”   Id. at 340.   In discussing the nature of the
infraction, the Court stated:
The maintenance of discipline in the schools requires not only that students be
restrained  from  assaulting  one  another,  abusing  drugs  and  alcohol,  and
committing  other  crimes,  but  also  that  students  conform  themselves  to  the
standards of conduct prescribed by school authorities.    We have  “repeatedly
emphasized the need for affirming the comprehensive authority of the States and
of  school  officials,  consistent  with  fundamental  constitutional  safeguards,  to
prescribe and control conduct in the schools.”   Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 507, 89 S. Ct. 733, 737, 21 L. Ed. 2d
731 (1969).   The promulgation of a rule forbidding specified conduct presumably
reflects a judgment on the part of school officials that such conduct is destructive
of school order or of a proper educational environment.   Absent any suggestion
that the rule violates some substantive constitutional guarantee, the courts should,
as  a  general  matter,  defer  to  that  judgment  and  refrain  from  attempting  to
distinguish between rules that are important to the preservation of order in the
schools and rules that are not.
Id. at 342 n.9.  The Supreme Court reinforced this policy in Redding, stating:
When the object of a school search is the enforcement of a school rule, a
valid search assumes, of course, the rule’s legitimacy.   But the legitimacy of the
rule usually goes without saying as it does here.   The Court said plainly in New
Jersey v. T.L.O., 469 U.S. 325, 342, n.9, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985),
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that standards of conduct for schools are for school administrators to determine
without second-guessing by courts lacking the experience to appreciate what may
be needed.   Except in patently arbitrary instances, Fourth Amendment analysis
takes the rule as a given, as it obviously should do in this case.   There is no need
here either to explain the imperative of keeping drugs out of schools, or to explain
the reasons for the school’s rule banning all drugs, no matter how benign, without
advance permission.   Teachers are not pharmacologists trained to identify pills
and powders, and an effective drug ban has to be enforceable fast.   The plenary
ban makes sense, and there is no basis to claim that the search was unreasonable
owing to some defect or shortcoming of the rule it was aimed at enforcing.
Redding, ___ U.S. at ___ n.1, 129 S. Ct. at 2640 n.1.   In sum, school officials are entrusted with
determining what rules may be necessary to protect the order of schools, and a warrantless search
of a student on school grounds may be based on reasonable suspicion that the student is violating
either such a school rule or a law; there is no requirement for the infraction to be both.5
Although Voss was eighteen years old at the time of the search and could legally possess
tobacco products, such possession would have been a violation of school policy.   A ban of
possession of tobacco products by all students on school grounds is not patently arbitrary when
most students in high school are not the age of majority and may not legally possess tobacco.
Because it is a rational rule, we take the rule as given.   Furthermore, according to the Idaho
5                                                                                                     See also In re B.A.H., ___ P.3d ___, 245 Or.App. 205 (Or. Ct. App. 2011) (search of
student upheld after he was found with a cigarette lighter, which was contraband according to
school policy and a violation to possess on school grounds); Johnson v. City of Lincoln Park, 434
F. Supp. 2d 467, 475 (E.D. Mich. 2006) (search justified at inception for possession of Nintendo
Gameboy on school grounds in violation of school policy).   These cases demonstrate that a
search may be upheld even where the school policy violation would not otherwise be a crime.
This is due to the interests in maintaining a disciplined, safe, and healthy forum for education
and in uniformly applying school policy to all students.  In extensively reviewing case law on the
subject of searches and seizures in school, one commentator noted a general outcome where
courts weigh the interest of schools against the privacy of students:
Many  other  courts  seemed  to  reach  a  middle  ground,  where  the  Fourth
Amendment was applied to searches conducted by school authorities . . . [under] a
standard less exacting than the normal probable cause standard.   Those courts, for
the most part, upheld warrantless searches, provided they were supported by a
reasonable suspicion that the search would uncover evidence of an infraction of
school disciplinary rules.
Bill O. Heder, The Development of Search and Seizure Law in Public Schools, 1999 B.Y.U.
EDUC. & L. J. 71, 94 (1999) (emphasis added).
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Code, it is the school district’s duty to protect the health and morals of all students, ranging from
ages five to twenty-one, within its supervision.   I.C. §§ 33-201, 33-512(4).   The particular rule in
this case, aimed at such protection of health and morals, applied to all students regardless of
whether they may otherwise legally possess tobacco, and Voss was, at the time, a student subject
to the rule’s enforcement.   Similar to the conclusion in Redding, the plenary ban of tobacco on
school grounds makes  sense, and there is no basis to claim that the search of Voss was
unreasonable owing to some slight shortcoming in such a ban--that it also applies to adult
students.
Nevertheless, Voss argues the United States Supreme Court case of Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646 (1995), demonstrates that a rational application of a school policy
depends on whether it applies to children and whether the particular activity regulated inherently
involves a lower expectation of privacy.    We find Voss’s argument regarding the elements
significant to the Supreme Court’s conclusion in Acton inapposite to this case.   In Acton, the
Court upheld random drug testing of student athletes, which required the production of a urine
sample in the presence of an adult monitor.   It upheld the random testing because:                      (1) the policy
was in regards to children within some custody of the school; (2) student athletes have a reduced
expectation of privacy, voluntarily subjecting themselves to higher degrees of regulation; (3) the
manner in which the samples were gathered was only relatively intrusive; and (4) the school had
a compelling interest in curbing drug use among student athletes.   Id. at 664-65.   While there
were facts similar to Redding, namely the enforcement of a school drug policy and a search that
necessarily may expose intimate body parts, the differing outcomes and the Court’s reasonings
are easily explained:   The Acton court did not analyze the Fourth Amendment issue raised by
enforcement of the school’s drug policy under the test in T.L.O. because the random searches
were not based on any degree of individualized suspicion.   Id. at 653.   Thus, the circumstance
required a closer examination of different elements.    The search in Redding was based on
individualized suspicion and, therefore, was appropriately examined under the two-part test in
T.L.O., providing a different outcome.  As this is a case of individualized suspicion, the search of
Voss’s vehicle is governed by the standards in T.L.O. and Redding.
Moreover, the Acton court did not question the ability of the school to enforce an anti-
drug policy.   The Court stated, “That the nature of the concern is important--indeed, perhaps
compelling--can  hardly  be  doubted,”  but  the  question  was  whether  the  interest                  “appears
9




important enough to justify the particular search at hand.”   Id. at 661.   The Court used those
factors listed above to determine whether a random, suspicionless search was reasonable when
compared to the school’s interest.   Here, there is no question that the assistant principal had
reasonable suspicion that Voss was violating the school policy.   Voss was on school grounds,
smelled of cigarettes, and had driven his car to school that morning.   As Voss did not have
cigarettes on his person, an obvious and customary place to also look was Voss’s vehicle.   The
school official was entitled to rely on this common sense conclusion which established the
necessary nexus between the place to be searched and the possible violation of the school policy
as is required by T.L.O.   Voss has failed to demonstrate the search was not justified at its
inception.
III.
CONCLUSION
We conclude the search of Voss’s vehicle on school grounds was reasonable.   Therefore,
we affirm the district court’s order upholding the magistrate’s denial of Voss’s motion to
suppress evidence.
Judge LANSING and Judge MELANSON CONCUR.
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