January 22, 2010 in City

Washington court disallows medical pot defense

Prescription no shield from marijuana searches
Gene Johnson Associated Press
 
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Background and the latest updates

The law

Washington’s medical marijuana law states that qualifying patients “shall not be penalized in any manner, or denied any right or privilege” for using marijuana under the act.

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 court upheld the conviction of Jason Fry, a Stevens County man arrested 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 Fry 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 if they were complying with the medical marijuana law, Sanders argued.

Steve Trinen, a lawyer with the Pierce County Prosecutor’s Office who argued the case before the Supreme Court, said he agreed with the court’s finding that a medical marijuana authorization does not negate probable cause to search a patient’s home.

But the Legislature should clarify the law to better protect legitimate patients, he said.

For example, lawmakers could set out procedures for obtaining a medical marijuana authorization – “a large number of which appear to be dubious at best,” or based on very cursory examinations, Trinen said.

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