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January 21, 2010 in Region
Wash. court: Doctor’s pot OK doesn’t preclude search
SEATTLE — A doctor’s permission to use medical marijuana doesn’t preclude police from arresting a patient or searching his home, the Washington State Supreme Court ruled Thursday.
The high court upheld the conviction of Jason Fry, a Stevens County man busted with 2 pounds of marijuana in 2004. Justices said sheriff’s officers who smelled marijuana smoke at his home had probable cause to believe a crime was committed — even after the man presented them with an authorization from his doctor.
Eight of the nine justices said Washington’s law only allows patients to present a medical marijuana defense at trial, and does not protect them from arrest or searches. It’s hard to imagine how police could determine whether someone was complying with the law — such as by only possessing a 60-day supply of marijuana — without conducting a search, they said.
“Possession of marijuana, even in small amounts, is still a crime in the state of Washington,” Justice James Johnson wrote in the lead opinion. “A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence.”
Justice Richard Sanders dissented on that point, saying such an analysis would neuter the state’s compassionate use law, passed by voters in 1998. While the law does create a defense against marijuana charges to be used at trial, he said, it also states that qualifying patients “shall not be penalized in any manner, or denied any right or privilege” for using marijuana under the act.
Under the court’s ruling, a patient could be searched, arrested and hauled to court every time an officer smells marijuana at his or her home, even absent any evidence the patient is breaking the medical marijuana law, Sanders argued.
“I do not find the mercy of the people of Washington for individuals with terminal or debilitating illnesses to be so fickle,” Sanders wrote.
Five justices also ruled that generally, judges must allow a jury to decide whether someone is a qualifying patient under the law. In this case, a Stevens County judge ruled on his own that Fry was not a qualifying patient.
Nevertheless, Fry’s conviction was upheld because a defense lawyer conceded that his severe anxiety and depression are not conditions covered by the law.
Many pro-marijuana activists in Washington are frustrated that patients continue to be arrested and prosecuted, and some prosecutors have also expressed frustration over the difficulty of determining what’s legal and what’s not under the state’s law.
One group, Sensible Washington, cites the confusion as one reason it’s pushing a ballot initiative this year that would remove all state criminal penalties for adult use, possession, growing and delivery of marijuana.
On Wednesday, a state House committee rejected two other marijuana-reform measures — one that would make adult possession of small amounts punishable by a fine only, and one that would legalize marijuana for those 21 and older.
© Copyright 2010 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Children permitted at Washington prison powwows 
terrymr on January 21 at 4:32 p.m.
While correct from a strict reading of the law, this ruling is directly opposite to the spirit of the law. Medical marijuana patients should not have to stand trial every time an officer decides to arrest them.
empyrius on January 21 at 5:57 p.m.
So then a police officer can just say “hey, I smell pot coming from your house”. And then you are subject to having your home and belongings searched, discovering any and all “dirty little secrets” you may have, whether you in fact have pot or not!
All an officer has to do is say he smells pot! This borders upon being a very, very, dangerous state of affairs for all citizens of the United States!
This nation has not “freedom”; “freedom” is simply a lie the mega-corporations and their American government ceaselessly brainwash us with: in fact, if you look close enough you will find that your daily life is quite heavily regulated in many shapes and forms!
We better re-legalize marijuana this November people b/c this will be about the last chance for citizens to change a law on our own without judges and lawyers deciding for us what is permissible . . .
Be right with YHWH: legalize marijuana!
Amen
twoandthree on January 21 at 6:45 p.m.
Terry MR correct. The intent of the law should be whats ruled on .. Perhaps the legislature should review law 101 and rewite it the way it should have been.
It would be nice if the Judiciary reviewed these laws prior to being passed so we know what we are getting.
We are supposed to be secure in our person and belongings w/o unreasonable search.
If indeed they can search your stuff, then any non-marijuana items/laws should not be part of the search. Called forbidden fruit.
empyrius on January 21 at 8:08 p.m.
“Fruit-of-the-poisonous-tree doctrine”: Criminal procedure.
“The rule that evidence derived from an illegal search, arrest, or interrogation is inadmissable because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”). Under this doctrine, for example, a murder weapon is inadmissable if the map showing its location and used to find it was seized during an illegal search”.
“Fruit-of-the-poisonous-tree doctrine”. Black’s Law Dictionary. 1999 (7th) ed.
If the cops say, “we have probable cause”, then there is no “forbidden fruit” to be called upon b/c the search will have been “legal”.
Seriously! If the cops can simply say, “I smell weed”, and then search you and your home, we are all in a very bad place.
Legalize marijuana!
Amen