Religious defense to possession of marijuana was not cognizable in a challenge to a search warrant

Defendant challenged a search warrant for marijuana based on a religious defense raised under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. The district court held that the defense to possession was not cognizable in a motion to suppress the search because it would involve issuing magistrates in determining religious defenses first. United States v. Lepp, 2007 U.S. Dist. LEXIS 66311 (N.D. Cal. September 6, 2007):

To the extent that Lepp challenges the seizure of his marijuana plants as a violation of RFRA, such an argument is easily set aside. As an initial matter, in challenging the seizure of a religious article, such as a sacrament, Lepp invokes the protections of RFRA to the instant seizures; however, the government’s interest overcomes Lepp’s. The government’s compelling interests in enforcing drug laws by executing valid search warrants in pursuit of that aim is long-established. Compare Rush, 738 F.2d at 512-13 (upholding conviction for marijuana possession under strict scrutiny analysis) with Navajo Nation v. United States Forest Service, 479 F.3d 1024, 1044 (9th Cir. 2007) (“We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities … is a governmental interest of the highest order.”) (citation and quotations omitted). Nor does this case present the type of narrow tailoring challenge that the Court confronted in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U. S. 418 (2006). The O Centro Espirita court admonished the government for its failure to analyze the requested religious exemption and its effects on the particular claimant. Id. at 431. Here, the government has not resorted to the slippery-slope argument exclusively, which the O Centro Espirita court rejected, but instead has provided argument that the system proposed by Lepp would be unworkable. Magistrates would have to scrutinize all warrant applications for possible indications of religious exercise. “[T]he government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the required religious accommodation would seriously compromise its ability to administer the program.” O Centro Espirita, 546 U.S. at 435 (citing cases in which such a showing was made). It is clear that the government had no more narrowly tailored alternative for executing a search warrant and enforcing the criminal laws than to seize the marijuana plants on both occasions. Lepp continued to cultivate marijuana after the first seizure. Indeed, there is some evidence that Lepp told agents that he would begin replanting marijuana immediately after a seizure of some of his plants. February 11, 2005 Aff. P 8. Additionally, unlike the religious exception granted to certain Schedule I substances under the Controlled Substances Act, 21 U.S.C. section 801 et seq., there is no evidence that the Attorney General has granted exemptions for other religious uses of marijuana or similar drugs. O Centro Espirita, 546 U.S. at 434-36.

Finally, Lepp asks the court to fashion an exclusionary remedy under its power to grant “appropriate relief” for violations of RFRA. 42 U.S.C. § 2000bb-1(c). Because the court has concluded that no such violation occurred, the court declines Lepp’s invitation to expand the exclusionary rule. Nor is such an invitation appropriate. The court can find no authority for suppressing evidence on the basis of a RFRA violation.