State v. Heath ( 2021 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47334
)
STATE OF IDAHO, )
)
Boise, February 2021 Term
Plaintiff-Respondent, )
)
AMENDED
v. )
Opinion Filed: May 20, 2021
)
RICHARD M. HEATH, )
Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
_______________________________________ )
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
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) is suppression 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 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 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.
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