The Problems with Using Holy Objects in Criminal Investigation
Matthew P. Cavedon
Police are looking for drug runners near the Mexican border. They see a truck with a crucifix hanging from the rearview mirror. Can they factor this in as a reason to stop the truck? Surprisingly, most federal courts have held yes, albeit as a factor carrying very little weight. They do so based on officers’ testimony that prominently displayed holy items work as “religious disclaimers”: signs meant to mislead law enforcement into thinking vehicle occupants are upstanding members of the community. But, despite the reality of some criminals misusing religion as a mask, letting sacred symbols count toward suspicion defies both constitutional rights and common sense. The better rule is to exclude them from the calculation, barring some image- or case-specific reason to do otherwise.
The question is undeniably a sensitive one. I could not find a single opinion treating a religious item as an ordinary piece of evidence. The controversy here is narrow, between those courts that treat religious objects as – at most – only minimally suspicious, and those refusing to consider religious objects entirely. Nevertheless, the difference in terms of rights and sense can be great. A good example of the first approach is a 2000 case arising out of West Texas, United States v. Ramon.186 F. Supp. 2d 665, available at https://law.justia.com/cases/federal/district-courts/FSupp2/86/665/2398594/. There, Border Patrol agents tailed a car with three religious decals on the back: a metallic fish, a sticker of the Virgin Mary, and a sticker with a religious message. One of the agents later testified that “he had been trained to look for religious decals and symbols, as they may be used by smugglers” who are trying to come across as “God-fearing Christians.”
Federal judge Royal Furgeson rejected the officers’ reliance on the decals, based on both civil rights and common sense. He compared the agents’ use of religion to stopping someone based on race, and held that it is illegal to detain people based solely on their ethnicity or their religious beliefs. Nor could he uphold a stop that would threaten the constitutionally protected speech and “right to emphasize one’s religion” that were embodied by the decals. Turning from high principles to basic logic, he also observed that “as a general rule, there is little reason to assume” that religious symbols are a clue of drug activity – “especially in West Texas,” which “is called the ‘Bible Belt.’” He had no trouble recognizing that drug traffickers do “abuse religious symbols to mask their own criminal activity.” But without something more direct, the decals in Ramon just weren’t enough to justify a stop.
Ramon was a narrow decision. It only held that religion can’t be the sole reason to stop someone. But if there had been other reasons to suspect a drug crime, then the agents would have been entitled to take the decals into account. Most other federal courts have reached similar conclusions. For instance, in United States v. Townsend, a 2000 case from southern Ohio2138 F. Supp. 2d 968, available at https://law.justia.com/cases/federal/district-courts/FSupp2/138/968/2461950/., an officer pointed to a Bible in the front seat of the suspect’s car as a reason for detaining him. Like the agents in Ramon, he testified that criminals “will sometimes display Bibles or religious symbols in their automobiles, as a decoy.” But the Townsend court found the Bible to be minimal evidence, because the officer did not say how often criminals – as opposed to non-criminals – display Bibles in their cars. On appeal, the Sixth Circuit agreed, simply finding the Bible “a very weak indicator of criminal activity.”3305 F.3d 537, 544 (6th Cir. 2002) (per Boggs, J.), available at https://law.justia.com/cases/federal/appellate-courts/F3/305/537/593066/.
Also joining in this majority approach is United States v. Mendoza, a 2011 Utah case.4United States v. Mendoza, No. 1:10-CR-152, 2011 U.S. Dist. LEXIS 121932 (D. Utah Sept. 20, 2011) (mag. op.), adopted by 2011 U.S. Dist. LEXIS 119939 (D. Utah Oct. 17, 2011); unpublished op. available at http://bit.ly/37jc8Ds. The officer there used three crucifixes hanging from the rearview mirror as a reason to search an SUV. He called them a “religious disclaimer,” used “so the occupants could pass themselves off as good religious people.” The court dismissed the crucifixes as “very weak” and ambiguous evidence.
Even under this majority approach, federal courts do not routinely give the thumbs-up to officers who stop and search people based on their holy objects. But such items do register, however weakly, on courts’ suspicion radars. This is wrong. And there is a better way. Interestingly, it comes from the very author of Ramon – Judge Furgeson. The prosecutor in United States v. Magana5544 F. Supp. 2d 560 (W.D. Tex. 2008), available at https://www.leagle.com/decision/20081104544fsupp2d56011051. must not have realized that Judge Furgeson had written Ramon eight years earlier. Or maybe he just had chutzpah. Either way, he tried to convince the Judge that a dashboard statue of the Blessed Virgin Mary supported a trooper’s decision to detain a driver. Judge Furgeson responded with a nine-page critique, reaffirming Ramon and canvassing other cases. Unsurprisingly, he rejected the prosecutor’s argument.
Then, he went further. He found the statue to be a completely “impermissible factor” whose use violated the freedoms of speech and religion. “[S]ymbolic speech,” religious or otherwise, cannot be counted toward the decision to restrain someone’s liberty. Allowing even remote weight to attach to the display of religious imagery would threaten vital freedoms. Judge Furgeson refused to issue “a de facto mandate for all citizens to remove any indicia of religion from their vehicles or else possibly face a governmentally sanctioned inference of criminality.”
This conclusion is persuasive. Certainly, the common-sense reality that many law-abiding people display holy objects has already led courts to minimize their role. But the majority approach has still left the tent open to the camel’s nose. People who show religious items are still at a higher risk of being stopped or searched than those who don’t. Never mind that there are some other steps officers have to take along the way: Any time that someone’s apparent free exercise of religion counts as one strike against them – whether out of three, or out of thirty, it does not matter – our sacred rights suffer harm. Besides, allowing holy things to have significance within some bigger picture just invites the police to use their own judgment to figure out when religion is fishy. This can lead to discrimination. So can the simple truth is that certain religions use imagery and items more visibly than others. Given these realities, is it any wonder that three out of the four cases discussed here involve Hispanics who displayed typically Catholic gear? (To be sure, though, one could just as easily imagine a counterterrorism agent finding suspicious an Islamic prayer rug spied through a house’s window.) The best guard against such illegal burdens on religion, and this kind of unjust discrimination, is a ban on weighing religious items toward suspicion.
A broad ban need not be absolute. The cases I’m envisioning involve bona fide holy items that agents randomly encounter. But there are such things as pseudo-religious symbols belonging to the criminal underworld. This was the observation of Judge Michael McConnell, an expert in religious-liberty law. In United States v. Guerrero,6472 F.3d 784 (10th Cir. 2007). he distinguished between run-of-the-mill iconography and those images “identified with gangs.” Surely, a broad approach need not go so far as to block consideration of the semi-religious emblem of the Gangster Disciples:
Cases closer to the borderline would involve statues of “narco saints” – unofficial, semi-religious figures closely associated with the Mexican drug trade.7See John Nova Lomax, “Santa Muerte: Know Your Narco Saints,” Houston Press (4:00AM, Sept. 12, 2012), https://www.houstonpress.com/news/santa-muerte-know-your-narco-saints-6595551.
A second qualification: Even genuinely religious items should be able to raise suspicion when they do so for reasons entirely unrelated to religion. If a car is displaying a unique diamond-encrusted rosary, and the police have good evidence that a certain drug dealer is the only person around with one like it, then of course that can be a good reason to suspect that the car is his.
These exceptions do not present the same problems as the current majority approach. Letting a gang sign count toward suspicion would not threaten the legitimate practice of religion because, by definition, courts would have to be satisfied that the image was not part of it. Letting a religious item count toward suspicion for reasons entirely unrelated to religion would not treat a holy object any differently from a profane one that happened to have similar significance for an investigation. A broad, but not limitless, exclusion of sacred objects could protect liberty without unduly hobbling the police.
It is good that courts treat religious imagery as criminally suspicious only in extraordinary cases. But it would be even better for them to follow Judge Furgeson and start excluding it from the equation altogether.
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.