1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47334

STATE OF IDAHO,

Plaintiff

- Respondent,

v.
RICHARD M. HEATH,

Defendant

- Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) 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.

_____________________ 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

ap pealed the denial of his motion to the district court, which affirmed. For the reasons set out
below , we too affirm.2 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 wi th 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 sub stance under Idaho Code section 37

- 2732(c)(3) and possession of drug paraphernalia under Ida ho Code section 37

- 27 34A (1)

. In September 2017, Heath pl eaded 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 magistra te court ruled in June 2018
, that the officer unlawfully extended the traffic stop

. Accordingly, the magistrate court suppressed the evidenc e obtained from the stop. The Stat e then
dismiss ed the charges against Heath

. Th ough 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 pi pe and bong,
which Heath filed i n 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 m arijuana is improperly prohibited as a schedule I drug under Idaho Code section 37

- 2 705, 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 an d issued a written opinion shortly thereafter. Heath appealed to the district court in January 2019. T he 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 , 1663 Idaho 1, 4, 454 P.3d 1084 , 1087 (2019) (quoting State v. Chernob ieff , 161 Idaho 537, 539, 387 P.3d 790, 792 (2016)).
T he 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 distric t court’ s decision as a matter of procedure

. Id. (quot ing 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 s tatute 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
hu man 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 p ipe and bong because he disagrees that they are contraband. We addres s the s e argument s 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 co urt 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) do es 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. I f 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 rul e would allow defendants to reclaim illegal drugs themselves (no matter the type or quantity), or weapons th at defendant s may not legally possess, or even property st olen4 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. T he remed y we have long recognized in criminal proceedings for illegal search es and seizure s (in addition to any potential civil remedies) is suppression of evidence

. Heath prevailed on his suppression motion
and the charges against him were dismissed as a result. W e 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 argues that 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 conflict s with constitutional and statutory guarantees of religious liberty.
1. M arijuana 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 f ive arguments t o 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) mar ijuana is not harmful to people and, if i t 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 argument s , 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 ex pressly granted to it by the5 federal Constitution, the Idaho legislature may enact any law on any matter unless it is constitutionally prohibited from doing so

. Id.; s ee 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 18 th Amendment was necessary for the legislature to prohibit marijuana under the CSA. Further, while Heath argue s 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 argume nt s , 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

. A dministration 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 sub stance 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 m edical tr eatment in many state s. Therefore, Heath contends marijuana’s prohibition under the CSA is invalid. However, by its

term s, 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 f ailu re 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 st atute s, absent a constitutional infirmity. Idaho Const. art II, § 1; Idaho Power & Light6 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] (201 1 ), which held that the Idaho Constitution does not protect against prosecution for conduct that violates a neutral criminal statute of general applicability, such as posses sion 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

sacram ent 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 Ida ho Constitution, which provides that “[t]h e exercise and enjoyment of rel igious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on ac count of his religious opinions . . . .” We rejected the defendant’s arguments in Fluewelling . We held that the First
Amendment “ does not relieve an individual of t he 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 H uman Res. Of Oregon v. Smith , 494 U.S. 872 (1 990 ) (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

. I n part, Heath suggests that the district court erred in rely ing on Fluewelling
because there are a number of differences between the facts, procedure, and arguments in this case7 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 d ifferent from the charges
that Heath faced. T hese 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 th ose arguments

now. First, Heath contends that the provisions of the CSA prohibiting the use of marijuana are not neutral and generally applicable. However, He ath’s arguments do not support his conclusion. Certainly, the prohibition of marijuana under the CSA impair s Heath’s ability to consume marijuana, which he attests i s an important element of his belief system

. Heath has zealously argued this point and we will not question the sin cerity 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 no t 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 t o do with Indian reservations, taxes, and territorial
debts.
H eath 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]eligious8 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 A rticle I, section 4. ” ( Emphasis by Heath). We are

un persuaded. 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 . I n neither case did we suggest

a ny 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 do cument

. 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 i s 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 constit utional convention suggests that the language of article XXI, section 19 was intended to provide greater protection
tha n article I, section 4. Rather, the provision

— and its specific language

— is the result of a historical quirk. Whereas the c onstitutional conventions of other western states “proceed[ed] in an orderly fashion under the specific authority of a congression al enabling act[,]” the Idaho
constitutional convention was called before Congress ha d passed an enabling act for our state. 1
P ROCEEDINGS AND D EBATES OF THE C ONSTITUTIONAL C ONVENTION OF I DAHO , at iii

– iv (I.W. Hart ed., 1912). T his left the delegates of the Idaho convention in an “uncertain position” because they performed their work unaware of what requirements Congress might im pose for admission

. Id. In response to this uncertainty, the delegates modeled article XXI, section 19 on the restrictive provisions contained in S ection F our of the Congressional Enabling Act of Feb ruary 22, 1889, for
North and South Dakota, Montana and Wash ington (“Section Four”). 2 P ROCEEDINGS AND
D EBATES OF THE C ONSTITUTIONAL C ONVENTION OF I DAHO 1655

– 56, 2014

– 16 (I.W. Hart ed., 1912) . Indeed, the delegates were so concerned with obtaining congressional approval that the y rejected the first draft of art icle 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 the9 duplicatio n (albeit with differe n t 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 s tate will assume territorial debts) with Idaho Const. art. XXI, § 19

. In sum, th e 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
reflect s the belt

- and

- suspenders approach the delegates of the Idaho convention to ok 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 libe rty. 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 burde n 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]s sential to further a c ompelling governmental interest” and “t he
least restrictive means of further ing that compelling governmental i nterest.” 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.
Th e first mention of FERPA that appears in the record is in Heath’s not ice of appeal to the
district court. While Heath asserts that he “br[ought] up” FERPA at th e hearing before the magistrate court, he concede s that he d id not actually argue the issue. Heath notes that because he raised a constitutional challenge to the pro hibition 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.
S tate 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 presente d for the first time on appeal.”). Thus,
Heath has waived his FERPA claim.10 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 f acts found by the lower courts. O ur 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
i s 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 beli efs, ” which trigger the applicability of FERPA, or phil osophical, 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 n ot 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.
A s a pro se litigant, Heath’s protests to our application of the rule are understandable.
However , “pr o 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,

w e can not consider t his argument now

. IV. CONCLUSION For the reasons above, t he decision of the district court is affirmed.

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