Posted on 10/1/18

Imagine this scenario: The Dallas police stake out a house that they believe is being used to funnel drugs from Mexico into the United States. They have been watching this house for a while and want to obtain more evidence before asking a judge for a warrant. They notice the door opening and send out a plain-clothes officer. A woman exits the house and starts heading down the block. She is approached by the undercover officer and he asks her about finding a smoke. She asks what type of smoke and he responds that he is looking for the one with “the baking soda inside.” She responds that she has some in the house and tells him to return the next night.

The following morning, the officer goes to a judge and submits a request for a warrant. The officer presents various pieces of evidence. Satisfied, the judge issues a search warrant for the house.

That night, the same officer dressed in plain clothes knocks on the door. When asked to identify himself, he states a fictitious name and references the conversation with the woman he had the night before. A minute later, the same woman opens the door and identifies him. She lets him in and motions to some men in the house that he should be searched. Once he is searched, the group lets him in.

Inside, the woman shows him all types of crack displayed on the table. He then asks about heroine. The woman shows him heroine. He asks about a price and she quotes him a price. He says the price is too high and starts haggling for a lower price.

In the meantime, his cell phone rings and the man tells the person on the other line that he is busy and they can speak later. The “busy” word is code for the police to enter. Thirty seconds later, a pack of policemen swarm the house, arrest the people inside, and confiscate the drugs.

The police bring the suspects in for an interrogation. None of them deny anything and all provide the same answer: they are part of a cult and, according to their religious beliefs, taking drugs arouses spirits.

The prosecution charges them with serious drug crimes, even though it is confirmed that drug use is an integral part of their religious practice. Do they have a First Amendment Defense?

First Amendment

TheFirst Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the 1990 case of Smith v. Oregon, a Native American tribe claimed that they smoked peyote as a religious right and therefore cannot be arrested for illegal drugs based on the First Amendment free exercise clause. The Supreme Court ruled that a law applicable to everyone based on health, safety, and the like is not considered protected.

Similarly, there would be no First Amendment protection for this religious group for drug use.

Accused of a crime? Contact the law firm of Christopher Abel.

(image courtesy of Simeon Muller)


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