January 21, 2010 in Region

Wash. court: Doctor’s pot OK doesn’t preclude search

Associated Press
 
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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.

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