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Goar asked Pinal County Superior Court Judge William O'Neil to order law enforcers to return the partial peyote button they'd taken from his medicine bag. Leo claimed his constitutional right to free exercise of religion had been violated. And he said he was a member of the Native American Church, which claims a U.S. membership of 250,000.
But now all the publicity was working against Leo. Not a single Native American Church spiritual leader would agree to testify on his behalf.
Instead, the prosecutor convinced one Native American Church leader, a deputy prosecutor for the Navajo tribe named Victor Clyde, to testify against Leo. Clyde disagreed with Leo's peyote cultivation, testified that peyote must be left to grow in the desert; it is too holy to be cultivated by man.
O'Neil ruled in June 1998 that Leo failed to produce convincing evidence that he was using peyote in "bona fide pursuit of a religious practice" as required by state law. The judge refused to order the police to return the partial peyote button.
O'Neil's written ruling strongly rebuked Leo: "Mr. Mercado has failed to demonstrate to this court's satisfaction that peyoteism or the peyote religion, however referred to, is a religion that is embraced by him. Instead, he presents himself far more as some carny offering cotton candy for any and all to use."
County Attorney Olson relished his court win. The judge's decision set the legal stage for the Narcotics Task Force to visit the Mercado ranch yet again, on January 8 and 9.
By this time, the Mercados had filed two separate declarations at the Pinal County Recorder's Office, attesting to their religious use of peyote.
Their "sacramental gardens" contained thousands of peyote cactuses, and Leo had started his "vast experiment" to see how to harvest the peyote cactuses on a sustainable basis. And he does need a lot of peyote. He runs "devotionals" during which he and guests ingest both San Pedro cactus and peyote. He says he models them after Huichol rites. He says he never mixes peyote in ceremonies with anything other than the occasional San Pedro cactus.
Leo insists that peyote ceremonies are reverent affairs.
"The way we eat this peyote in a ceremony takes a lot of work, a lot of devotion and a lot of prayer," he says. "The reward is nothing like drinking a six-pack or snorting cocaine. The reward is the strengthening of spirit and clarification of mind and a reverification of purpose for your life.
"We can prove in court that I don't drink and I don't deal drugs. I could have made a choice to run a Peyote Foundation scam and fund it on the side with drug dealing. I could have made that decision, but I didn't."
None of these arguments holds much sway with prosecutor Olson, which explains why, on January 8, Leo was arrested at his ranch. Once again, he was served with a warrant for failure to pay child support. Of course, the cops spied the "sacramental gardens" and called in the Narcotics Task Force. Leo was arrested and released from jail the next day after he paid $1,000 in child support. Leo claims he can't pay the huge sum he still owes. He says that by selling $25 annual newsletter subscriptions and soliciting donations, the Peyote Foundation earned about $12,000 last year. Raven earned about $2,000 last year selling natural herbs and pottery. That is their total income, he says.
Leo got back from jail in time to see police seize more than 11,300 peyote plants, plus an unidentified "white powdery substance intended for personal use," and some marijuana, according to Pinal County officials. Leo says the police also confiscated the Peyote Foundation's computers, financial records, books and some personal photographs. He says he was told the computers were needed to determine if Leo was involved in drug trafficking.
As the peyote was loaded into trucks, a Native American Church Road Man from Phoenix--alerted by Leo--drove to Kearny and asked police to turn the peyote over to him. They refused.
The Gila County Attorney's Office has since been "inundated" with phone calls from Road Men and others concerned about the seized peyote, says spokesman Charles Ratliff. Olson "consulted a horticulturist" about the proper care of the cactuses, and the peyote is in good condition in a secret location, according to Ratliff.
Leo is heartbroken.
"They're holding the peyote hostage," says Leo.
Leo calls the raid a "hate crime," claims the police illegally seized his peyote, tore up his house, shredded the plastic on his greenhouse, even stuck an unused sanitary napkin on a cabinet that once held peyote. Raven had apparently stored her sanitary napkins in a nearby cabinet.
Minter won't comment on Leo's other charges, citing the ongoing investigation.
"This was a legitimate search warrant," he says. "It was served in the same manner as all warrants are served."
Olson is waiting for the sheriff's office to conclude its investigation before deciding whether to prosecute Leo and Raven.
If the Mercados are successfully prosecuted, their case "will probably set a precedent in Arizona for non-Native American Church members using peyote," says Ratliff.