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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47334

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

RICHARD M. HEATH,

 Defendant-Appellant.

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Boise, February 2021 Term

AMENDED 

Opinion Filed: May 20, 2021

Melanie Gagnepain, Clerk

Appeal from the District Court of the Third Judicial District of the State of Idaho, 

Adams County. D. Duff McKee, District Judge.

The decision of the district court is affirmed.

Richard M. Heath, Pollock, appellant pro se argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. John 

McKinney argued.

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BRODY, Justice,

This appeal arises from a magistrate court’s denial of a defendant’s motion for the return 

of property under Idaho Criminal Rule 41(f) (“Rule 41(f)”). During a traffic stop, police 

confiscated a pipe, a bong, and some marijuana possessed by Richard Heath. Heath was charged 

with misdemeanor possession of marijuana and misdemeanor possession of drug paraphernalia. 

Heath moved to suppress the pipe and bong as evidence against him and the magistrate court 

granted the motion. Heath also moved for the return the pipe and the bong under Rule 41(f), but 

the magistrate court denied the motion after holding that the pipe and bong were contraband. Heath 

appealed the denial of his motion to the district court, which affirmed. For the reasons set out 

below, we too affirm. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2017, Heath was a passenger in a pickup truck driven by his brother when

a police officer stopped them for speeding. After apparently deciding to let Heath’s brother go 

with a warning, the police officer began questioning the two about an odor of marijuana the officer 

detected in the vehicle. During an exchange with the officer, Heath admitted that he had some 

marijuana and produced a small vial of buds and a pipe made from an elk antler. The officer then 

searched the pickup and found three more small vials of marijuana and a bong, also fashioned out 

of an elk antler. The officer seized the drugs, pipe, and bong, and cited Heath for misdemeanor 

possession of a controlled substance under Idaho Code section 37-2732(c)(3) and possession of 

drug paraphernalia under Idaho Code section 37-2734A(1).

In September 2017, Heath pleaded not guilty and informed the magistrate court that he 

intended to represent himself. Heath later filed a motion to dismiss, arguing that the officer’s 

conduct during the stop and subsequent search violated his constitutional rights. The State opposed 

the motion, treating it as a motion to suppress. Two hearings and a number continuances later, the 

magistrate court ruled in June 2018, that the officer unlawfully extended the traffic stop. 

Accordingly, the magistrate court suppressed the evidence obtained from the stop. The State then 

dismissed the charges against Heath.

Though the magistrate court granted the motion to suppress, it reserved judgment on the 

motion at the center of this appeal—a motion under Rule 41(f) for return of the pipe and bong, 

which Heath filed in March 2018. Heath submitted three supplementary briefs in support of his 

motion in July, August, and October 2018, and the magistrate court held hearings on the motion 

in August and November 2018. Heath raised a number of arguments, but his primary contentions 

were: (1) that Rule 41(f) required the return of his pipe and bong, (2) that marijuana is improperly 

prohibited as a schedule I drug under Idaho Code section 37-2705, and (3) that the prohibition of 

marijuana violated his right to religious liberty. The magistrate court denied the motion to return 

property at the November hearing and issued a written opinion shortly thereafter. Heath appealed 

to the district court in January 2019. The district court affirmed the decision of the magistrate court 

in July 2019. Heath timely appealed to this Court. 

II. STANDARD OF REVIEW

“On appeal from a decision rendered by the district court while acting in its intermediate 

appellate capacity, this Court directly reviews the district court’s decision.” State v. Phipps, 166
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Idaho 1, 4, 454 P.3d 1084, 1087 (2019) (quoting State v. Chernobieff, 161 Idaho 537, 539, 387 

P.3d 790, 792 (2016)).

The Supreme Court reviews the trial court (magistrate) record to determine whether there 

is substantial and competent evidence to support the magistrate’s findings of fact and 

whether the magistrate’s conclusions of law follow from those findings. 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’s decision as a matter of procedure.

Id. (quoting Pelayo v. Pelayo, 154 Idaho 855, 858, 303 P.3d 214, 217 (2013)).

III. ANALYSIS

A. Rule 41(f) does not allow for the return of contraband to a defendant.

Idaho Criminal Rule 41(f) provides that “[a] person aggrieved by an unlawful search and 

seizure of property may move for the property’s return.” However, the magistrate court denied 

Heath’s motion for the return of the pipe and bong because it determined they were contraband 

under Idaho Code section 37-2734A. That statute provides: “[i]t is unlawful for any person to use, 

or to possess with intent to use, drug paraphernalia to . . . inhale, or otherwise introduce into the 

human body a controlled substance.” I.C. § 37-2734A(1). Heath does not dispute that he used the 

pipe and bong to consume marijuana and he has not suggested they have any other use.

Primarily, Heath contends that the magistrate court erred in refusing to return the pipe and 

bong because he disagrees that they are contraband. We address these arguments in Section B, 

below. First, however, we consider Heath’s argument that the pipe and bong must be returned even

if they are contraband. In support, Heath notes that Rule 41(f) is silent on the issue of contraband

and that the magistrate court granted his motion to suppress because the search of his brother’s 

pickup was unlawful. Thus, Heath asserts that if we upheld the denial of his Rule 41(f) motion, we 

would “presuppose that violations of the 4th Amendment of the United States Constitution and 

Article I, section 17 of the Idaho State Constitution are fully permitted if the property seized is 

later claimed to be ‘contraband.’ ”

Heath is correct that Rule 41(f) does not mention contraband. However, “[w]e will not 

interpret a rule in a way that would produce an absurd result.” State v. Montgomery, 163 Idaho 40, 

44, 408 P.3d 38, 42 (2017). The absurd consequences of Heath’s position are evident. If we 

interpreted Rule 41(f) to require the return of contraband whenever evidence is suppressed, we 

would open the door for defendants to reclaim much more than drug paraphernalia. For example, 

Heath’s reading of the rule would allow defendants to reclaim illegal drugs themselves (no matter 

the type or quantity), or weapons that defendants may not legally possess, or even property stolen 
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by defendants from others. Moreover, there is no basis for Heath’s contention that constitutional 

violations would be “fully permitted” unless we adopt his interpretation of the rule. The remedy 

we have long recognized in criminal proceedings for illegal searches and seizures (in addition to 

any potential civil remedies) issuppression of evidence. Heath prevailed on his suppression motion 

and the charges against him were dismissed as a result. We need not, and will not, fashion an 

additional remedy from Rule 41(f).

B. The district court did not err in affirming the magistrate court’s finding that the 

pipe and bong are contraband.

Though Heath arguesthat contraband is returnable under Rule 41(f), his primary contention 

is that the district court erroneously concluded the pipe and bong were contraband in the first 

instance. Heath argues the pipe and bong are not contraband for two reasons. First, he contends 

that the provisions of Idaho’s enactment of the Uniform Controlled Substances Act (“CSA”) 

prohibiting the possession and use of marijuana are invalid. Second, he argues that the prohibition 

of marijuana conflicts with constitutional and statutory guarantees of religious liberty.

1. Marijuana is not improperly listed as a controlled substance under Idaho 

Code section 37-2705.

Both the magistrate court and district court held that the use of marijuana was validly 

proscribed under the CSA. Heath raises five arguments to the contrary: (1) marijuana was placed 

on schedule I of the CSA by the Idaho Board of Pharmacy (“Board”), an executive agency, in 

violation of the separation of powers provisions of the Idaho Constitution; (2) marijuana is not 

subject to any regulation because it is a natural herb created by God, not a pharmaceutical drug; 

(3) the State may not regulate marijuana because the Idaho Constitution does not contain a 

provision (analogous to the 18th Amendment to the United States Constitution) that permits 

prohibition of marijuana; (4) although marijuana is categorized as a schedule I drug under the 

CSA, it does not meet the criteria for placement on that schedule; and (5) marijuana is not harmful 

to people and, if it were legalized, it could help “heal the Earth through regenerative agriculture.”

Heath abandoned his first argument after the State pointed out that the legislature, not the 

Board, placed marijuana on schedule I of the CSA. Thus, we do not address the parties’ arguments 

regarding the legislature’s delegation of authority to the Board.

As to Heath’s second and third arguments, it is well established that the regulatory power 

of the state is plenary. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 241, 141 P. 1083, 

1091 (1914). Unlike Congress, which may only exercise the powers expressly granted to it by the 
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federal Constitution, the Idaho legislature may enact any law on any matter unless it is 

constitutionally prohibited from doing so. Id.; see also U.S. Const. amend. X; Standlee v. State, 

96 Idaho 849, 852, 538 P.2d 778, 781 (1975). Thus, no authority analogous to the 18th Amendment

was necessary for the legislature to prohibit marijuana under the CSA. Further, while Heath argues

that the CSA attempts to “criminalize God” for creating marijuana, the CSA only purports to 

regulate the conduct of people within Idaho, not deities. As such, Heath’s second and third 

arguments are without basis in law.

Turning to Heath’s remaining arguments, the CSA lists controlled substances on several 

schedules according to a substance’s potential for abuse and whether it has an accepted medical 

use. See I.C. §§ 37-2704 to 37-2713A. Administration of the regulatory provisions of the CSA is 

delegated to the Board, which “may add substances to or delete or reschedule all substances 

enumerated in the schedules” pursuant to the Idaho Administrative Procedure Act (“IDAPA”). I.C. 

§ 37-2702. Section 37-2704 of the CSA provides that the Board “shall place a substance in 

schedule I” if the substance has both a “high potential for abuse” and “no accepted medical use in 

treatment in the United States . . . .” Marijuana is listed as a schedule I controlled substance. I.C. 

§ 37-2705(d)(19).

Heath argues that marijuana does not meet the criteria set out in Idaho Code section 37-

2704 for placement on schedule I because it is used for medical treatment in many states.

Therefore, Heath contends marijuana’s prohibition under the CSA is invalid. However, by its 

terms, section 37-2704 only establishes criteria the Board must consider in placing drugs on 

schedule I; it does not limit the legislature’s ability to prohibit the use of substances. And while

Heath’s arguments could be construed as a claim that the Board has unlawfully failed to remove 

marijuana from schedule I because it fails the test in section 37-2704, Heath has not complied with 

the requirements of IDAPA to challenge an action (or a failure to act) by the Board. See I.C. §§ 

67-5270 to 67-5279.

Finally, Heath urges this Court to invalidate the listing of marijuana as a controlled 

substance because he alleges that science has shown marijuana is not harmful, that its prohibition 

is motivated by the desire to favor certain industries, and that the legalization of marijuana could 

reduce global warming. However, these arguments concern policy and are properly directed to the 

legislature. A fundamental incident of the separation of powers is that courts are not free to 

invalidate statutes, absent a constitutional infirmity. Idaho Const. art II, § 1; Idaho Power & Light 
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Co., 26 Idaho at 241, 141 P. at 1091. Yet Heath has not presented argument or authority on how 

any of the above allegations, even if accepted as true, would render the statutes he challenges 

unconstitutional. Thus, we do not consider these arguments.

2. The prohibition of marijuana under the CSA does not violate Heath’s

constitutional right to religious liberty.

Next, we turn to Heath’s contention that the CSA’s prohibition on the use of marijuana 

violates his right to religious liberty. The magistrate court rejected this argument and the district 

court affirmed, writing that the issue was firmly settled: 

This issue has been squarely addressed in State v. Fluewelling, 150 Idaho 576 [, 

249 P.3d 375] (2011), which held that the Idaho Constitution does not protect 

against prosecution for conduct that violates a neutral criminal statute of general 

applicability, such as possession of marijuana or related drug paraphernalia . . . .

In Fluewelling, the defendant was convicted of felony possession of marijuana with intent 

to deliver under section 37-2732 of the CSA. 150 Idaho at 577, 249 P.3d at 376. The defendant 

appealed his conviction, arguing that the CSA violated his religious freedom because he was “an 

active practitioner of THC Ministries” who consumed marijuana and shared it with others as a 

sacrament of his religion. Id. The defendant argued that his practices were protected under the First 

Amendment to the United States Constitution, as well as article I, section 4 of the Idaho 

Constitution, which provides that “[t]he exercise and enjoyment of religious faith and worship 

shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or 

capacity on account of his religious opinions . . . .” 

We rejected the defendant’s arguments in Fluewelling. We held that the First 

Amendment “does not relieve an individual of the obligation to comply with a valid and neutral 

law of general applicability on the ground that the law proscribes (or prescribes) conduct that his 

religion prescribes (or proscribes).” Id. at 579, 249 P.3d at 378 (quoting Employment Div., Dep’t 

of Human Res. Of Oregon v. Smith, 494 U.S. 872 (1990) (internal quotations omitted)). We applied 

the same standard to the defendant’s claim under the Idaho Constitution, holding that article I, 

section 4 “does not protect against prosecution for conduct that violates a neutral criminal statute 

of general applicability simply because such conduct may be engaged in for religious reasons.” Id.

Heath contends that the district court erred in affirming the decision of the magistrate court 

under Fluewelling. In part, Heath suggests that the district court erred in relying on Fluewelling

because there are a number of differences between the facts, procedure, and arguments in this case 
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and those in Fluewelling. For instance, Heath notes that Fluewelling did not involve a Rule 41(f) 

motion; that the defendant in Fluewelling did not argue the listing of marijuana on schedule I was 

invalid; and that the charges against the defendant in Fluewelling are different from the charges 

that Heath faced. These differences are irrelevant. The district court did not rely upon Fluewelling

because it is identical to this case, but because it states a legal principle that applies whenever the 

constitutionality of a statute is challenged on religious liberty grounds. However, Heath does raise 

two arguments that bear on the applicability of the rule in Fluewelling. We turn to those arguments 

now. 

First, Heath contends that the provisions of the CSA prohibiting the use of marijuana are 

not neutral and generally applicable. However, Heath’s arguments do not support his conclusion. 

Certainly, the prohibition of marijuana under the CSA impairs Heath’s ability to consume 

marijuana, which he attests is an important element of his belief system. Heath has zealously 

argued this point and we will not question the sincerity of his beliefs. But the impact of the CSA 

on Heath’s ability to legally practice his beliefs is not the dispositive issue. Rather, the issue is 

whether the CSA proscribes religious use of marijuana while permitting non-religious use, or has 

been designed so that it applies primarily to religiously motivated conduct. Cf. Church of the 

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (invalidating municipal ordinances 

that had been “gerrymandered with care to proscribe religious killings of animals but to exclude 

almost all secular killings”). Heath has made no such argument.

Second, Heath argues that Fluewelling does not dispose of this case because it did not 

address the religious liberty provision of article XXI, section 19 of the Idaho Constitution. Article 

XXI of the state constitution is titled “Schedule and Ordinance” and contains numerous 

housekeeping provisions for the transition from territorial status into statehood. Section 19 of 

article XXI is titled “Religious freedom guaranteed—Disclaimer of title to Indian lands.” The first 

sentence of section 19 provides: “It is ordained by the state of Idaho that perfect toleration of 

religious sentiment shall be secured, and no inhabitant of said state shall ever be molested in person 

or property on account of his or her mode of religious worship.” The remainder of section 19 is 

comprised of unrelated provisions having to do with Indian reservations, taxes, and territorial 

debts.

Heath asserts that article XXI, section 19 provides greater protection of religious liberty 

than article I, section 4 because its language is “more emphatic” and the phrases “ ‘[r]eligious 
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sentiment” and ‘mode of religious worship’ were deliberately intended to be broadly inclusive 

terms, well beyond an ‘establishment of religion,’ particularly since they were added at the end of 

said constitution after the guarantee in Article I, section 4.” (Emphasis by Heath). We are 

unpersuaded. 

We have only mentioned the religious liberty provision of article XXI, section 19 in two 

decisions, in both instances simultaneously with article I, section 4. In neither case did we suggest 

any difference in scope between the two sections. See Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 

(1969) and State v. Morris, 28 Idaho 599, 155 P. 296 (1916). This is consistent with the rule that 

we construe like provisions alike when they appear in a single document. See City of Idaho Falls 

v. H-K Contractors, Inc., 163 Idaho 579, 583, 416 P.3d 951, 955 (2018) (quoting State v. Barnes, 

133 Idaho 378, 382, 987 P.2d 290, 294 (1999)) (applying the rule in the context of statutory 

interpretation and noting “[i]t is to be inferred that a code of statutes relating to one subject was 

governed by one spirit and policy, and was intended to be consistent and harmonious in its several 

parts and provisions.”).

Furthermore, nothing during the proceedings of the Idaho constitutional convention 

suggests that the language of article XXI, section 19 was intended to provide greater protection 

than article I, section 4. Rather, the provision—and its specific language—is the result of a 

historical quirk. Whereas the constitutional conventions of other western states “proceed[ed] in an 

orderly fashion under the specific authority of a congressional enabling act[,]” the Idaho 

constitutional convention was called before Congress had passed an enabling act for our state. 1

PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF IDAHO, at iii–iv (I.W. Hart 

ed., 1912). This left the delegates of the Idaho convention in an “uncertain position” because they 

performed their work unaware of what requirements Congress might impose for admission. Id. In 

response to this uncertainty, the delegates modeled article XXI, section 19 on the restrictive 

provisions contained in Section Four of the Congressional Enabling Act of February 22, 1889, for 

North and South Dakota, Montana and Washington (“Section Four”). 2 PROCEEDINGS AND 

DEBATES OF THE CONSTITUTIONAL CONVENTION OF IDAHO 1655–56, 2014–16 (I.W. Hart ed., 

1912). Indeed, the delegates were so concerned with obtaining congressional approval that they 

rejected the first draft of article XXI, section 19 because it did not mirror the language of Section 

Four closely enough. Id. at 2022–24. Thus, it was re-drafted as a nearly word-for-word copy of 

Section Four and was adopted with little further discussion—even though this resulted in the 
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duplication (albeit with different language) of several provisions appearing elsewhere in the 

constitution. Compare Idaho Const. art. I, § 4 (protecting religious liberty); Idaho Const. art. VII, 

§ 4 (providing that federal property is exempt from state taxation); Idaho Const. art. XXI, § 4 

(providing the state will assume territorial debts) with Idaho Const. art. XXI, § 19.

In sum, the language of article XXI, section 19 was not “deliberately intended” to broaden 

the protection guaranteed by article I, section 4. Nor does its placement in the article for “Schedule 

and Ordinance” near the end of the constitution reflect an attempt to expand upon the earlier 

provision. Rather, the language and existence of the latter religious liberty provision merely 

reflects the belt-and-suspenders approach the delegates of the Idaho convention took to 

anticipating and assuaging congressional concerns about admitting Idaho to the Union. Heath has 

not demonstrated that Fluewelling does not apply to this case and we affirm the decision of the 

district court that the CSA does not unconstitutionally infringe on Heath’s religious liberty. 

3. We will not consider Heath’s argument that the CSA violates the Free Exercise 

of Religion Protected Act because it was raised for the first time on appeal. 

In addition to his constitutional arguments, Heath contends that the prohibition of

marijuana under the CSA violates the Free Exercise of Religion Protected Act, Idaho Code section 

73-401, et seq. (“FERPA”). FERPA protects religious liberty beyond the constitutional baseline 

by providing that the “government shall not substantially burden a person’s exercise of religion 

even if the burden results from a rule of general applicability,” unless the government can 

demonstrate the burden is “[e]ssential to further a compelling governmental interest” and “the 

least restrictive means of furthering that compelling governmental interest.” I.C. § 73-402. 

However, the State argues that Heath waived his argument under FERPA because he did not raise 

it below. The State is correct.

The first mention of FERPA that appears in the record is in Heath’s notice of appeal to the 

district court. While Heath asserts that he “br[ought] up” FERPA at the hearing before the 

magistrate court, he concedes that he did not actually argue the issue. Heath notes that because he 

raised a constitutional challenge to the prohibition of marijuana, and FERPA “merely sews up the 

loopholes in our constitutional guarantees,” he thought that arguing the issue before the magistrate 

court “seemed unnecessary.” However, arguing the issue was necessary to preserve it for appeal. 

State v. Gertsch, 137 Idaho 387, 395, 49 P.3d 392, 400 (2002) (“The longstanding rule of this 

Court is that we will not consider issues that are presented for the first time on appeal.”). Thus, 

Heath has waived his FERPA claim. 
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Heath argues that we abandon our constitutional duty to uphold the laws of Idaho by not 

considering his FERPA claim. Heath’s contention is unfounded. By only considering arguments 

properly preserved for appeal, we do not shirk our responsibilities under the Idaho Constitution—

we comply with them. The Idaho Constitution defines the jurisdiction of this Court, and (except in 

unusual circumstances not at issue here) the nature of that jurisdiction is appellate. When 

exercising appellate jurisdiction, we are limited to deciding questions of law and reviewing the 

application of the law to facts found by the lower courts. Our role is not, and has never been, to 

decide the facts in the first instance. See, e.g., Smith v. Sterling, 1 Idaho 128, 131 (1867) (refusing 

to consider facts first alleged on appeal). 

Here, the magistrate court made no findings of fact or conclusions of law that would permit 

appellate review of Heath’s FERPA claim because he never made an argument under FERPA 

before the magistrate court. Although Heath’s arguments on appeal imply that his FERPA claim 

is reviewable as a pure issue of law, it is not. As the Idaho Court of Appeals has observed, FERPA 

claims present “difficult and delicate” questions of fact, including whether a person’s convictions

are “religious beliefs,” which trigger the applicability of FERPA, or philosophical, political, or 

ideological beliefs, which do not. State v. Cordingley, 154 Idaho 762, 767, 302 P.3d 730, 735 (Ct. 

App. 2013). In distinguishing between religious and non-religious beliefs, the Court of Appeals 

has employed a five-element test with ten sub-elements. Id. Though we have not endorsed this test 

and have no occasion to do so here, it illustrates the fact-intensive nature of the inquiry and the

inappropriateness of our considering the issue without any factual findings below. 

As a pro se litigant, Heath’s protests to our application of the rule are understandable.

However, “pro se litigants must conform to the same standards and rules as litigants represented 

by attorneys, and this Court will address the issues accordingly.” Owen v. Smith, ___ Idaho ___, 

___, 477 P.3d 193, 200 (2020) (quoting PHH Mortg. v. Nickerson, 164 Idaho 33, 38, 423 P.3d 

454, 459 (2018) (internal quotations omitted). Heath had an opportunity to present an argument 

under FERPA before the magistrate court, but he did not. In the absence of factual findings below, 

we cannot consider this argument now.

IV. CONCLUSION

For the reasons above, the decision of the district court is affirmed.

Chief Justice BEVAN, and Justices BURDICK, STEGNER, and MOELLER CONCUR.