Thursday, January 21, 2010

WA Supremes: No Matter If You're A Marijuana Patient, Cops Can Search And Arrest

By Steve Elliott in Toke of The Town
marijuana-arrest1.jpg
Graphic: thefreshscent.com
If you're a legal medical marijuana patient in Washington and you thought your doctor's recommendation protected you from search or arrest, you're wrong. According to a new court ruling, you can be arrested and hauled into court every time an officer smells pot at your home -- even if you are complying with the law.

In a sharply divided decision, the Washington Supreme Court Thursday ruled against a patient arrested for possessing marijuana -- despite the fact that the patient had a doctor's recommendation for medicinal pot.

Incredibly, the court found that police had probable cause to search the patient's home, even after he presented what both he and the police believed to be a valid medical marijuana authorization form under Washington's medical marijuana law.


"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, reports Gene Johnson of The Seattle Times. 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.

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Photo: NORML
Alison Holcomb, ACLU: "This ruling is disappointing, as the citizens of Washington have clearly expressed support for the rights of patients who are suffering to use marijuana for medicinal purposes"
​ "This ruling is disappointing, as the citizens of Washington have clearly expressed support for the right of patients who are suffering to use marijuana for medicinal purposes," said Alison Holcomb, ACLU of Washington drug policy director.

"This ruling shows that police may search and arrest a patient even though he has his doctor's authorization for the medical use of marijuana," Holcomb said.

"As interpreted by the court, all Washington's medical marijuana law provides is a defense patients can raise at trial -- after having been subjected to the stress and stigma of arrest and criminal charges," Holcomb said. "Patients acting in good faith on their doctor's advice should not have to fear arrest."

Wednesday's ruling arose from the case of patient Jason Fry, a resident of Stevens County. In December 2004, members of the sheriff's department went to Fry's home with what they called "suspicion" that he was growing marijuana.

Upon their arrival, the deputies smelled marijuana, but were denied entry into the home after Mrs. Fry showed them her husband's medical marijuana authorization form. The officers then obtained a search warrant.

After the search, Fry was arrested and charged for marijuana possession.

A trial court did not allow him to raise the defense that he possessed marijuana under Washington's Medical Use of Marijuana Act. The court capriciously ruled that Fry was not a qualifying patient and found him guilty of possessing marijuana; an appeals court unaccountably upheld the conviction.

Even after Fry was subjected to prosecution, the trial court refused to allow him to raise the medical marijuana defense because his doctor had mistakenly authorized the medical use of marijuana for a condition not listed in the law.

In other words, the patient was punished for the doctor's mistake.

The court unfortunately did not address the issue of whether Fry should have been allowed to present the jury with a defense that he reasonably relied on his physician's authorization for the use of medical marijuana.

The court was highly divided, with only four justices signing the majority opinion. In a concurring opinion, four justices asserted that patients should, in general, be able to present a medical marijuana defense at trial. Justice Sanders wrote a dissenting opinion.

Washington's Medical Use of Marijuana Act was adopted by voter initiative in 1998.

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