Uncertainty in Law Fuels Reform Movement for Marijuana

In Washington, a person with proper documentation from a physician can legally possess marijuana, right?  It isn’t that simple.   The State Supreme Court essentially said this month that even if you possess the valid certificate from a doctor, the police can still search your house and still arrest you.  The certificate can only be brought up later in court to defend you.  See decision In a case out of  Stevens County, Washington, the sheriffs deputies approached the home of Jason and Tina Fry and smelled marijuana from the front porch.   Tina Fry presented proof of medical authorization, but the police obtained a warrant anyway.  As you would expect, marijuana was found in the home.  The Frys’ criminal defense lawyer filed a motion to dismiss and to have the search thrown out of court.  The Stevens County judge denied the lawyer’s motion to suppress the evidence.   The Frys’ defense lawyer appealed all the way up to the State Supreme Court.  There the court explained:

A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize his use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore, based on the information of a marijuana growing operation and the strong odor of marijuana when the officers approached the Frys’ home, a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause and the search warrant was properly obtained.

The ruling essentially says that medical marijuana is not legal; rather it is illegal until you go to court and present a defense.  Is that clear?  Unfortunately not.  Another similar area of the law was fought out in December in King County Superior Court.  Aaron Pelley, a Seattle criminal defense lawyer, won a legal challenge on behalf of Scott Verner, a medical marijuana patient.   During a routine traffic stop, a state trooper smelled the marijuana in Verner’s car and searched it even though Verner produced a doctor’s authorization.  Attorney Aaron Pelley took the State to court and won a groundbreaking case that forced the police to return the marijuana.  I am sure the police considered that quite an indignity.  But, it is probably also  an indignity for sick medical marijuana patients to stand by the side of the road when their cars are searched.  The article made news nationally, and is available here.

Are marijuana patients and criminal defense lawyers the only ones who are fed up with the confusion in the law?  Mason County Prosecuting Attorney Gary Burleson also seems fed up.  “I don’t have a problem with marijuana being legal, and I don’t have a problem with it being illegal,” Burleson said. “But right now, I have a big problem understanding what’s legal and what’s not.”  See story.

See prior post on medical marijuana.

What do you think?  Was the Supreme Court’s ruling correct?  The court seemed to take a narrow view of the law and a literal reading of the earlier initiative authorizing medical use.  Is the new initiative more clear?  What can we look forward to from the courts in the future?  Doesn’t it seem like the police are reluctant to fully respect the medical marijuana law?  What will their reaction be to the legalization or decriminalization of marijuana?

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Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
Law Office of Steve Graham
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