¶1dissenting, concurring, and concurring in the result.
¶2I respectfully dissent from part II of the opinion of the Court that overrules the *1000“review denied rule” and the portion of State v. Prestwich, 116 Idaho 959, 783 P.2d 298 (1989), that approved the applicability of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) under article 1, § 17 of our state constitution.
¶3Being liberated, however, by part II from the review denied rule and from Prestwick, I concur in parts I, III, IV, and V(A) of the Court’s opinion, and concur in the result of part YI. In my view, parts V(B)-(D) are dicta.
¶4THE REVIEW DENIED RULE: A SHORT-LIVED PRECEDENT
¶5The review denied rule has been part of the jurisprudence of this state since at least December 21, 1988, the day our opinion in Hays v. State, 115 Idaho 315, 766 P.2d 785 (1988), was issued. See also Nash v. Overholser, 114 Idaho 461, 463-65, 757 P.2d 1180, 1182-84 (1988) (Johnson, J., specially concurring, with Bistline and Huntley, JJ., concurring).
¶6In Hays, we said that when this Court denies review of a decision of our Court of Appeals, the decision of the Court of Appeals becomes “controlling precedent in this state with regard to any new principles of law announced there.” Hays, 115 Idaho at 316, 766 P.2d at 786. Our decision in Hayswas premised on the rule established by our Court of Appeals in Brooks v. State, 108 Idaho 855, 702 P.2d 893 (Ct.App.1985) (review denied). By our decision in Hays, the review denied rule became part of the law of this state. By the opinion of the Court today, this precedent expires before reaching the tender age of four years.
¶7The demise of the review denied rule causes me to ponder whether there remains any vitality in the rule of stare decisis. As articulated by this Court, the rule of stare decisis means “ ‘that a question once deliberately examined and decided should be considered as settled ... unless it is demonstrably made to appear that the construction manifestly is wrong.’ ” Scott v. Gossett, 66 Idaho 329, 335, 158 P.2d 804, 807 (1945) (Ailshie, C.J., quoting State ex rel. Kain v. Fischl, 94 Mont. 92, 20 P.2d 1057, 1059 (1933)). While the rule of stare decisis was discussed by Chief Justice Ailshie in Scottin terms of its application to decisions of the highest court of a state construing constitutional provisions, the rule has been applied in this state in many cases not involving constitutional construction. E.g., Salinas v. Vierstra, 107 Idaho 984, 990-91, 695 P.2d 369, 375-76 (1985); Smith v. State, 93 Idaho 795, 801, 473 P.2d 937, 943 (1970); Bethke v. Idaho Sav. & Loan Ass’n, 93 Idaho 410, 412-13, 462 P.2d 503, 505-06 (1969).
¶8The stability that the rule of stare decisis provides in our legal system is a significant part of what I believe the “rule of law” is all about. If we are free to abandon precedent merely because we are convinced that the rule laid down in a prior case is incorrect or not to our liking, then each appeal has the potentiality to change basic rules upon which this Court, our Court of Appeals and our trial courts have relied in deciding cases. In Bethke, Justice McQuade, writing for the Court, pointed out that adherence to prior rulings is supported by these considerations:
“1. In furtherance of private ordering—
“(a). The desirability of enabling people to plan their affairs at the stage of primary private activity with the maximum attainable confidence that if they comply with the law as it has theretofore been announced, or can fairly be expected to be announced thereafter, they will not become entangled in litigation.
“(b) The desirability of providing private counsel so far as possible with stable bases of reasoning____
“(c) The desirability of encouraging the remedial processes of private settlement by minimizing the incentives of the parties to try to secure from a different judge a different decision than has been given by the same or other judges in the past.
“2. In furtherance of fair and efficient adjudication—
“(a) The desirability, from the point of view of the litigants, of expediting litigation and minimizing its costs by sparing *1001them the necessity of relitigating every relevant proposition in every case.
“(b) The need, from the point of view of the judicial system, of facilitating the dispatch of business — indeed, the sheer impossibility of reexamining de novo every relevant proposition in every case.
“(c) The need of discouraging a rush of litigation whenever there is a change of personnel on the bench.
“(d) The desirability, from the point of view of fairness to the litigants, of securing a reasonable uniformity of decision throughout the judicial system, both at any given time and from one time to another.
“(e) The desirability of promoting genuine impersonality of decision by minimizing the elements of personal discretion, and of facilitating the operation of the check of professional criticism.
“(f) The propriety of according respect to the conclusions of predecessor judges.
“(g) The injustice of disappointing expectations fairly generated at the stage of primary private activity.
“3. In furtherance of public confidence in the judiciary—
“(a) The desirability of maximizing the acceptability of decisions, and the importance to this end of popular and professional confidence in (1) the impersonality of decisions and (2) their reasoned foundation, as manifested both by the respect accorded to them by successor judges and by their staying power.
“(b) The necessity, considering the amorphous nature of the limits upon judicial power and the usual absence of an effective political check at the ballot box, that judges be subject to the discipline and the restraint of an obligation to build upon the prior law in a fashion which can withstand the test of professional criticism.”
¶993 Idaho at 412-413, 462 P.2d at 505-506 (quoting from H.M. Hart, Jr. and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, 587-588 (Cambridge, Mass., tentative ed. 1958)).
¶10Justice McQuade went on to point out in Bethke:
[The rule of stare decisis] is not a rule of unreasoning acquiescence. We will not follow incorrect decisions merely because they are there, “the rule, to stand by decided cases, and to maintain former adjudications, contemplates more than blindly following some former adjudication, manifestly wrong.”
¶1193 Idaho at 413, 462 P.2d at 506 (emphasis in original).
¶12In Smith, 93 Idaho at 801, 473 P.2d at 943, Justice Donaldson, writing for the Court, said:
This Court in the proper performance of its judicial function is required to examine its prior precedents. When precedent is examined in the light of modem reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis but rather a fulfillment of its proper function.
Stare decisis is not a confining phenomenon but rather a principle of law. And when the application of this principle will not result in justice, it is evident that the doctrine is not properly applicable.
¶13In Salinas, 107 Idaho at 984, 990, 695 P.2d at 375 (1985), Justice Bistline, writing for the Court, noted:
While we are cognizant of the importance stare decisis plays in the judicial process, we are not hesitant to reverse ourselves when a doctrine, a defense, or a holding in a case, has proven over time to be unjust or unwise.
¶14See also Harrison v. Taylor, 115 Idaho 588, 595-96, 768 P.2d 1321, 1328-29 (1989).
¶15From these “precedents” we can glean that prior decisions of this Court should govern unless they are manifestly wrong or have proven over time to be unjust or unwise. While I am prepared to accept these limitations on the rule of stare decisis, I am not prepared to allow these limitations to convert the precedents of this Court into ephemeral edicts that are here today and gone tomorrow, the duration of their life-span depending on the composition and disposition of the Court. This is *1002not to say that I am unwilling to overrule precedent that is manifestly wrong. E.g., Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990); State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988).
¶16With this framework for analysis, I examine this decision in which this Court overrules the review denied rule, which was established less than four years ago. The questions we must ask about the rule are whether it has been proven to be manifestly wrong or has proven over time to be unjust or unwise. Keeping in mind the structure of the system of appellate courts in Idaho, I conclude that the review denied rule is neither manifestly wrong nor has it proven over time to be unjust or unwise.
¶17All appeals from the district court in this state are to this Court. No cases may be appealed to the Court of Appeals. I.A.R. 11. The only means by which the Court of Appeals receives cases to decide is by assignment by this Court. I.C. § 1-2406; I.A.R. 108. This distinguishes the relationship of this Court to our Court of Appeals from that of the United States Supreme Court to the circuit courts of the United States. In the federal system, cases are appealed to the circuit courts from the district courts. The circuit courts have their own appellate jurisdiction and are autonomous within that jurisdiction, subject only to being overruled by the United States Supreme Court. The decision of a circuit court is final within the circuit, unless the United States Supreme Court grants certiorari and overrules the circuit. In the federal appellate system, the denial of certiorari does not affect the precedential value of the circuit court’s decision within that circuit.
¶18We have recently clarified the role of this Court in reviewing a decision of the Court of Appeals:
I.A.R. 108 provides that the Court of Appeals shall hear and decide all cases assigned to it by this Court. I.A.R. 118 allows any party to a proceeding aggrieved by an opinion or order of the Court of Appeals to petition this Court to review the opinion or order. Review is granted, if a majority of this Court votes to grant the petition. We may also grant review of an opinion or order of the Court of Appeals on our own motion pursuant to I.A.R. 120.
If we decide to review a decision of the Court of Appeals, we ordinarily consider all the issues presented to the Court of Appeals. Occasionally, we may decide to address less than all of the issues presented to the Court of Appeals. In that case we advise the parties of the issues we will address. As to the issues we decide to address, we consider that we are hearing the matter in the first instance, not merely considering the correctness of the decision of the Court of Appeals.
¶19Sato v. Schossberger, 117 Idaho 771, 774-75, 792 P.2d 336, 339-40 (1990).
¶20This process of review is dramatically different from the review by the United States Supreme Court of decisions of the circuit courts. If the Supreme Court grants certiorari, the Court considers the decision of the circuit court, not that of the trial court, as we do when we grant review of a decision of our Court of Appeals. This is further evidence of the significant structural difference in the relationship of this Court to our Court of Appeals and that of the United States Supreme Court to the federal circuit courts.
¶21In Idaho, the Court of Appeals has no appellate jurisdiction of its own. When this Court receives an appeal, a decision must be made whether the case will be heard by this Court or by the Court of Appeals. If the case is assigned to the Court of Appeals, this Court has, in effect, said to the Court of Appeals, “You decide this case, according to the precedents established by this Court.” As I see it, when the Court of Appeals has decided the case, the decision becomes the law of the case, unless review is granted by this Court and a new decision announced. By its opinion in this case the majority gives all decisions of the Court of Appeals stating new law the status of controlling precedent in the district courts of this state, even if this Court has not denied review.
¶22*1003This view of the effect of decisions of the Court of Appeals will inevitably leave us with the uncertainty of two tiers of jurisprudence in this state. One tier will be composed of the decisions of the Court of Appeals that are controlling on the district courts. The second tier will be composed of the decisions of this Court. This view of the role of the Court of Appeals as a precedent setting court seems to be negated by both the legislation that created it and by the rules of this Court concerning the assignment of cases to it.
¶23I.C. § 1-2406(2) states:
In assigning cases to the Idaho court of appeals, the Idaho supreme court shall give due regard to the workload of each court, to the error review and correction functions of the court of appeals, and to the desirability of retaining for decision by the supreme court those cases in which there is substantial public interest or in which there are significant issues involving clarification or development of the law.
¶24(Emphasis added.)
¶25I.A.R. 108(b) provides:
Assignment of Cases to Court of Appeals. Generally, cases which involve consideration of existing legal principles will be assigned to the Court of Appeals. In assigning cases to the Court of Appeals, due regard will be given to the workload of each court, and to the error review and correction functions of the Court of Appeals. Ordinarily, the Supreme Court will retain the following classes of cases:
(1) Cases in which there is substantial public interest;
(2) Cases in which there are significant issues involving clarification or development of the law, or which present a question of first impression;
(3) Cases which involve a question of substantial state or federal constitutional interpretation;
(4) Cases raising a substantial question of law regarding the validity of a state statute, or of a county, city, or other local ordinance;
(5)Cases involving issues upon which there is an inconsistency in the decisions of the Court of Appeals or of the Supreme Court.
¶26(Emphasis added.)
¶27Obviously, there would not be a dispute about the effect of the denial by this Court of a petition to review a decision of the Court of Appeals, if the Court of Appeals were not sometimes stating new law. Whether this Court has intentionally delegated issues to the Court of Appeals that have led to the announcement of new law, or whether these issues lay hidden in the cases when they were assigned, the result has been the same — the Court of Appeals has announced new law in this state. This was the case in State v. Rice, 109 Idaho 985, 989, 712 P.2d 686, 690 (Ct.App.1985) (review denied). In Rice, the Court of Appeals held that the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was applicable under the unreasonable search and seizure provision of our constitution (article 1, § 17). In State v. Prestwich, 116 Idaho 959, 960, 783 P.2d 298, 299 (1989), I accepted this decision of the Court of Appeals, because when this Court was presented with the opportunity to review Rice, we denied review. Otherwise, I would not have accepted the application of Leonto the exclusion of evidence under article 1, § 17 of our state constitution.
¶28According to the opinion of the Court in this case, if the Court of Appeals makes a decision that states new law, the decision is controlling on the district courts of this state, even though this Court has had no opportunity to consider the correctness of the opinion of the Court of Appeals. This, I think, turns our appellate jurisprudence on its head by delegating the making of new law to the Court of Appeals. In my view, decisions of the Court of Appeals stating new law are controlling only when this Court has been presented with a petition for review and denied review. In that case, it seems to me that the decision should be controlling not only on the district courts, but also on the Court of Appeals and on this Court. When we have *1004denied review, we have had the opportunity to consider the opinion of the Court of Appeals as well as the brief in support of the petition for review. If there is any question as to the correctness of a new statement of law, we should grant review. Our denial of review should be construed as acceptance of the new law.
¶29In my view, the demise of the review denied rule will create less, rather than more, certainty in the law in Idaho. The Court’s decision to overrule the review denied rule dictates that I will vote to review any decision of the Court of Appeals that states new law, even new law with which I agree. Otherwise, the trial bench and the bar will be in doubt, perhaps for years, whether this Court will accept or reject the view of the Court of Appeals on the issue involved.