5

In the second season episode of The X-Files "Red Museum," Mulder and Scully visit the home of a devout vegetarian, Odin, who refuses then access to his house because they eat meat.

They don't have a warrant, and Odin states that even with a warrant they would still be denied entrance to his house under the First Amendment.

How would this actually play out?

  • 2
    Possible answer here: No, with a warrant they would not only ignore his protest and carry out the search, but if they wanted to insult him they could eat meat inside his house while executing the warrant and he would have no recourse. – feetwet Oct 15 '15 at 3:12
  • Would there need to be any explicit provisions in the warrant? – Azor Ahai Oct 15 '15 at 3:15
  • Provisions for what? – feetwet Oct 15 '15 at 3:18
  • Breaking the rules of the suspect's religion. – Azor Ahai Oct 15 '15 at 3:18
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    @PressTilty It has that: it tells the officers to search. Suspects are not consulted when drawing up a search warrant, and if they had to be consulted and have a judge modify it to follow their religion it would pretty much defeat the purpose of the warrant (since the evidence would be gone by the time the police return). – cpast Oct 15 '15 at 3:43
9

Religious protection from federal warrants is not a First Amendment issue. If protected at all, the best argument would be in RFRA, the federal statute implemented in 42 U.S.C. §2000bb-1 et seq.

It provides that the "Government shall not substantially burden a person’s exercise of religion..." except if the burden "is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest."

It is my guess that every court in the U.S. would agree that a search warrant issued upon probable cause is in furtherance of a compelling governmental interest, and having an agent or two walk through the house (or whatever is necessary in order to exercise that warrant) is the least restrictive means of furthering that interest.

  • There's also a pretty decent argument that you can't even require the FBI to send other agents -- the government has a compelling interest in preventing destruction of evidence, so you can't really leave and come back later. – cpast Oct 15 '15 at 3:42
  • Great answer. Would it be different in other countries? – Azor Ahai Oct 15 '15 at 3:58
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    @PressTilty There are over two hundred "other countries". It seems very unlikely that anyone would know the answer for all of them. But search warrants wouldn't be very effective in a country that allowed people to refuse the execution of a warrant, under any circumstances. – David Richerby Oct 15 '15 at 8:13
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    @PressTilty: In Germany that is a current subject of discussion: An illegality of the search does not necessarily result in an illegibility of evidence found, which makes it somewhat moot to even discuss whether religious exemptions would be legal or not. ;-) – DevSolar Oct 15 '15 at 8:32
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    @DevSolar Or ineligibility. :-) – David Richerby Oct 15 '15 at 11:53
3

A subject's religion, house rules, etc. are simply not a consideration in the issuance and execution of a search warrant. A warrant authorizes officers to take whatever measures they consider necessary to safely search for and secure whatever is being sought. The only variations in a search warrant are whether:

  1. It has to be served during normal waking hours.
  2. The officers have to knock first, or whether they can conduct a "no-knock" raid.

A subject and his property have virtually no rights in the face of a warrant – certainly no rights to impose rules. See these previous questions.

-1

You are talking about a vegetarian. I don't think you have particularly strong rights against people discriminating against vegetarians, unlike discrimination against gender, race, religion and so on.

Now a search warrant gives the police the right to search your house. I can't see how this would give a police officer the right to eat in your house, or to have a nap on your sofa, or to use your toilet, or to watch TV in your house. On the other hand, if he or she does, you will have a hard time doing anything meaningful about it.

On the other hand: Say a police officer comes with a search warrant that allows him to search the home of a devout muslim for suspected illegal drugs. The police officer demonstratively eats a bacon sandwich in the muslim's home, then finds a significant amount of illegal drugs.

A defense lawyer would have a field day with this. The bacon sandwich eaten in the house of a muslim would be a clear sign of racism (I suspect that police officers very rarely eat bacon sandwiches while they perform a search), and therefore there would be reasonable doubt that the drugs were in the house before the police officer started the search.

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