# Petition — Smith v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 873

## Text

Supreme Court U
» U.S,

LMCHAEL ROOK ecm
IN THE

o

Supreme Court of the United States
October Term 1980

JAMES HENRY SMITH,
Petitioner,
v.

STATE OF WASHINGTON,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF WASHINGTON

Timotny K. Forp

DaniEL Hoyt SMITH
2200 Smith Tower
Seattle, Washington 98104
Telephone: (206) 622-5942

CHARLEs S. SIMs
American Civil Liberties
Union Foundation
132 West 43d Street
New York, New York 10036
Telephone: (212) 944-9800
Attorneys for Petitioner

ISSUF PRESENTED FOR REVIEW

Whether the Fourth Amendment creates a
right to privacy in the home which requires
some Swett ses tee justification for
forcible intrusions into private dwellings
to enforce statutory prohibitions of purely
private conduct, even if that conduct does

not involve the exercise of distinct

Constituitional rights.

QUESTION PRESENTED

Whether the decision of the Supreme
Court of Washington, denying the existence
of a distinct constitutional right to
privacy against official invasions of one's
home unsupported by a legitimate state
interest, is in conflict with this Court's

decision in Stanley v. Georgia, 394 U.S.

557 (1969), and with the language and

intent of the Fourth Amendment.

TABLE OF CONTENTS

TABLE OF AUTHORITIES . e e . o o = oa 2 ° * .

OPINIONS BELOW he a ee ee ee ee ae voy cok er ee |

JURISDICTION e . a . . o ° a * . o . . . « a

CONSTITUTIONAL AND STATUTORY

PROVIS IONS INVOLVED + = e a ° o o . am a *

STATEMENT OF THE CASE @ o e 7 e © « e . eo =

The 1“ crime “J ° e . ec . . a a e-e* as i. e oa
The trial ° s e e a7 7 e e ° e a . e 7
The hearing * + + . 2 = eo . 6 . . . * e

The trial court's decision Soe eh ee ae

7 Ge ee we 6 Oe ee

HOW THE FEDERAL QUESTION WAS RAISED

AND DEC z DED BELOW e + e e oe e e 6 s ° .

REASONS FOR GRANTING THE WRIT .....e-s

1.
2.
3.

6.

The issue is squarely presented here. .
dic thos 4 tentiantal MA oe ae ee
The issue is substantial .......
The Court has not decided the issue ..
Lower courts have divided on the issue .

The issue is of extraordinary importance

CONCLUS ION 7 e « a . . . . + « e « * so a7 “

45

TABLE OF AUTHORITIES

Statutes and Court Rules Page

Supreme Court Rule 20.1 ....«s«-eecee
Laws of Washington 1979, ch.67 §1 .....
= Be i i ee a ae eo
ROW 69.50.401(c) 2.2 ew ca eo weve ee ae
ROW GS.S0.401(€) «we cence ves euss
RCW 69.50.509 ee tas ae et oe oe ee Te et ae
Cases

Application of the President and

Directors of Georgetown Hospital,

331 F.2d 1010 (D.C.Cir. 1964),
cert. denied 377 U.S. 978 (1964) ....

Belgard v. State, 543 P.2d 206 (Alaska 1975)

Boraas v. State, 229 So.2d 244 (Fla. 1969),
appeal dismissed 400 U.S. 800 (1970) ..

Carey v. Population Services Int'l,
431 U.S. 678 (1977) . . . * . e* e@ 7 . °

Cavanass v. State, 581 P.2d 475, (Ok.Cr.
1978), cert. denied 439 U.S. 1117 (1979)

Doe v. Commonwealth's Attorney,
403 F. Supp. 1199 (E.D. Va. 1975),
etree gam Usb. SO C1976) se 2 0 2

Evans v. State, 569 P.2d 503 (Ck.Cr.1977) .

Fuller v. Alaska, 393 U.S. 80 (1968) ....

Gaskin v. State, 490 S.W.2d 521 (Tenn.),
appeal dismissed 414 U.S. 886 (1973) ..

33
38

34

36

34,40

38

34

7%

-iii-

Griswold v Connecticut, 381 U.S. 479 (1965) 31-2,37

Illinois NORML v. Scott, 66 Ill. App. 3d 633,
Dp Bh eS Sr

Louisiana NORML v. Guste, 300 F.Supp. 404
(E.D.La. 1974) aff'd 511 F.2d 1400 (5th
Cir.) cert. denied 423 U.S. 867 (1975) 34,40

Marcaux v. Attorney General, Mass. __,,
375 N. E.2d 688 (1978) . 7 . . ° . s » * 7 40

Mugler v. Kansas, 123 U.S. 623 (1887) ... . 36

NORML v. Bell, ton .,
26 Cr. L. 2505 (D.C.D.C. Feb. 11, 1980) . 40

Olmstead v United States, 277 U.S. 438 (1928) 33

Papachristou v. City of Jacksonville,
5% i. ip |< Be Ly ) Pe *
Paris Adult Theater No. 1 v. Slaton,
413 U.S. 49 (1973) oe 61s 6 t+ & oan

Payton v. New York, 48 U.S.L.W. 4375
(U.S, April } i. F 1980) oe. @- &-@" 6 26-7,31

People v Sinclair, 357 Mich. 91,
194 N.W.2d 878 (1972) . 2... +++ + 37,42

People v. Summit, 517 P.2d 850 (Colo. 1974) . 12

Poe v. Ullman, 367 U.S. 497 (1961) ..... 36

Powell v. Texas, 392 U.S. 514 (1968) ... . 37

Ravin v. State, 537 P.2d 494 (Alaska 1974) . 30

State v. Anderson, 16 Wn.2d 553,
558 P.2dq 307 (1976) Sere i he a ee 19

-*

-iv-

State v. Baker, 535 P.2d 1394 (Hawaii 1975)

State v. Chrisman, 364 So.2d 908 (La. 1978)

State v. Donovan, 344 A.2d 401 (Me. 1975) .

State v. Kantner, 53 Hawaii 327, 493 P.2d
306, cert. denied 409 U.S. 948 (1972) °

State v. Kells, 199 Neb. 374,

8 i REET 9) re

State v. Kincaid, 98 Idaho 440,
P. (1977) . 7 . . . . . . 7

State v. Liens, 234 N.W.2d 645 (Iowa 1975)

State v. Mitchell, 563 S.W.2d 18 (Mo.1978)
State v. Muepny 117 Ariz. 57,
> 0 (1977) . 7 7 7 7 . . . .

State v. Rao, 370 A.2d 1310 (Conn. 1976) .

State v. Shepard, N.Y¥.2d ’
WEOd ~une 6, 1980) ... 0.

State v. Smith, 93 Wn.2d 329 (1980) ....

State v. Strong, 245 N.W.2d 277 (S.D.1976)

State v. Zornes, 78 Wn.2d 9,
P, (1970) . . . . . 7 . . 7

United States v. Kiffer,
Le),
cert. “denied mate, Wan (1973) . c «

United States v. Rode ez-Camacho,
ir.)
cert. denied diac U.S. 984 (1972) ...

42
41
38

34,39—40

» 41

» 41
. 38
. 38

» 41
. 38

41
passim
» 38

» 35

- 12

. 38

o

-V=

United States v. Orito, 413 U.S. 139 (1973) 31-3,38

Weeks v. United States, 232 U.S. 383 (1914). 28

Zander v. District Court, 591 P.2d 656,
P, Mont. 979) > 8 2 2 ut 8..e 40,42

Other Authorities

Barratt, Personal Rights. property
Rants and the Ame nt,
. 7 2,2 ¢ 26,30
Bonnie and Whitebread, The Forbidden Fruit
and the Tree of Knowledge: An Histo

of the American Marijuana tion,
IN . . 5 ) a a i 12

FREEMAN, NARCOTICS CASES:
PROSECUTION AND DEFENSE (1970) ..... 26

HEARING BEFORE THE SUBCOMMITTEE OF THE
COMMITTEE ON THE JUDICIARY, UNITED STATES
SENATE, 93rd CONG. 2nd SESS., "Marijuana-
Hashish Epidemic and Its Impact on United
States Security” (1973) ...«s«eescee 43

KAPLAN, MARIJUANA=-THE NEW PROHIBITION (1971) 44

LASSON, THE HISTORY AND DEVELOPMENT
OF THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION (1937) . . . 2730

MARIHUANA AND HEALTH, Seventh Annual Report
ta the U.S. Congress from the Secretary
of Health, Education and Welfare (1978) . 17

MARIHUANA AND HEALTH, Eighth Annual Report
to the U.S. Congress from the Secretary
of Health, Fducation and Welfare (1980) 17,43

-vi-

MARIJUANA: A STUDY OF STATE POLICIES AND
PENALTIES (National Gov. Conf. 1977) .

NATIONAL COMMISSION ON MARTHUANA AND DRUG
ABUSE, MARIHUANA: A SIGNAL OF

MISUNDERSTANDING (1972)
New York Times, July 24, 1979

Soler, Of Cannibis and the Courts,

6 CONN. L. .

42

42
37

38

No. 80-
IN THE SUPREME COURT OF THE UNITED STATES

October Term 1980

JAMES HENRY SMITH,
Petitioner,
Vv.
STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF WASHINGTON

James Henry Smith prays that a writ of
certiorari issue to review the decision of
the Supreme Court of Washington affirming
his felony conviction for possession of

marijuana for his own use in his own home.

s*

-.

-}

ae, oe

OPINIONS BELOW

The opinion of the Supreme Court of the
State of Washington affirming petitioner's
conviction, four Justices dissenting, is
published at 93 Wn.2d 329, and set out as
Appendix A. The trial court's Decision
rejecting petitioner's constitutional claim

is unpublished, and set out as Appendix B.

JURISDICTION

The decision of the Supreme Court of
Washington was issued on April 24, 1980.
This Petition is being filed within 90 days
of that date.1 Jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

l By Order dated April 14, 1980,
effective June 30, 1980, this Court's Rule
20.1 was amended to require that Petitions
for Certiorari in criminal cases from
state courts be filed "within 60 days after
entry of such judgment." Petitioner has
assumed that this amendment did not
retroactively make this Petition late. If
it did, the defect is not jurisdictional,
Fuller v. Alaska, 393 U.S. 80 (1968), and
petitioner would respectfully move’ the
Court for leave to file this Petition out
of time.

i.

~ a

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

This case involves the Fourth, Ninth and
Fourteenth Amendments to the Constitution
of the-United States.

This case also involves the following
provisions of the law of the State of

Washington:

RCW 69.50.204:

(a) The controlled substances listed in
this section are included in Schedule I.

x &

(d) Any material, compound, mixture or
preparation which contains any quantity
of the following hallucinogenic
substances, their salts, isomers’ and
salts of isomers, unless’ specifically
excepted, whenever the existence of
these salts, isomers, and salts of
isomers is possible within the specific
chemical designation: ...

x * ®
(10) Marihuana; .. .

—”~

RCW 69.50.401(c):2

(c) It is unlawful for any person to
possess a controlled substance unless
the substance was obtained directly
from, or pursuant to, a valid
prescription or order of a practitioner
while acting in the course of his
professional practice, or except as
otherwise authorized by this chapter.
Any person who violates this subsection
is guilty of a_ crime, and upon
conviction may be imprisoned for not
more than five years, fined not more
than ten thousand dollars, or both,
except as provided for in subsection (d)
of this section.

RCW 69.50.401(d):2

(d) Except as provided for in subsection
(a)(1)(ii) of this section any person
found guilty of possession of forty grams
Or less of marihuana shall be guilty of a
misdemeanor.

é By laws of Washington 1979, ch.67 §1l, an
additional section to RCW 69.50.401 was
added numbering former subsections (c) and
(d), subsections (d) and (e) respectively.

RCW 69.50.509:

If, upon the sworn complaint of any
person, it shall be made to appear to
any judge of the superior court, justice
of the peace, district court judge or
municipal judge that there is probable
cause to believe that any controlled
substance is being used, manufactured,
sold, bartered, exchanged, administered,
dispensed, delivered, distributed,
produced, possessed, given away,
furnished or otherwise disposed of or
kept in violation of the provisions of
this act, such justice of the peace or
judge shall, with or without’ the
approval of the prosecuting attorney,
issue a warrant directed to any law
enforcement officer of the state,
commanding him to search the premises
designated and described in such
complaint and warrant, and to seize all
controlled substances there found,
together with the vessels in which they
are contained, and all implements,
furniture and fixtures used or kept for
the illegal manufacture, sale, barter,
exchange, administering, dispensing,
delivering, distributing, producing,
possessing, giving away, furnishing or
otherwise disposing of such controlled
substances, and to safely keep the same,
and to make a return of said warrant
within three days, showing all acts and
things done thereunder, with a
particular statement of all articles
seized and the name of the person or
persons in whose possession the same
were found, if any, and if no person be
found in the possession of said
articles, the returns shall so state.
The provisions of RCW 10.31.030 as now
or hereafter amended shall apply to
actions taken pursuant to this act.

|

~

STATEMENT OF THE CASE

This Petition seeks review of James
Smith's felony conviction for possession of
marijuana in his own home for his own use.

l. The "crime" occurred on October 15,

1976: as Jim and Donna Smith and their
family were sitting down to dinner, four
Snohomish County Sheriff's officers knocked
at their door. RP 36-8.2 The officers had
a search warrant, based on an affidavit
saying a "concerned citizen" had "observed
what the citizen believed to be marijuana
growing in one of the greenhouses"4 at the
Smith residence, and had "obtained a sample
of the suspected marijvana and brought said
sample to Sgt. Nelson (SCSO)",. Warrant
Affidavit, Exhibit 9.

: Throughout this Petition, citations to
the Reporter's Transcript of Testimony at
trial are preceded by "RP"; citations to the
Clerk's Fapers are preceded by "CP",

4 there were two small greenhouses at the
Smith residence: one inside the garage
connected to the house, and one just behind
it. RP 6, 38. Both were closed and
invisible from off the’ property, and
contained a variety of plants. RP 39, 57.

mm, 7m

The officers ordered the Smith family
into the living room, and held them there
while the house was searched. RP 4, 38.
The search lasted roughly an hour and a half |
(RP 31), and penetrated every compartment of
the Smith's home--including their bed, bed-
room and private papers (RP 19-20). As the
trial court found, "from the perspective of
the Smith family, the search was a complete
ransacking." Mem. Decision at 2, App. B12.
According to the officers it was "standard
Operating procedure” in such cases. RP 29.

The officers found a bundle of half-
grown marijuana plants, two plastic baggies
of marijuana leaves and some marijuana seeds
--a total of some ten ounces of usable
marijuana. RP 16. For possession of that
substance, a felony under RCW 69.50.40l(c),
they placed Jim Smith under arrest and took
him off to jail. RP 72.

alu

2. The trial on the charge was brief;

the facts were undisputed. Jim Smith
testified the marijuana was his and that he
had intended "to smoke it" (RP 40), as he
had done for two years--since his wife gave
him "an ultimatum to quit drinking or she
was going to divorce me, plain and simple."
RP 69.°
"Mr. Smith had found that his anxieties
and tensions were only aggravated by his
former use of alcohol, and that the
substitution of marijuana had not only
helped these problems, but had
significantly improved his relationships
within his family."
Mem. Decision 1, App. B2. The prosecutor
disclaimed any issue of intent: "“he is
charged with possession, not possession with
intent to deliver or manufacture;" "“({wle are

not charging him with possession with intent

to deliver." RP 48, 50.

5 gim testified he grew his own marijuana
for two reasons: "there's no chemicals. I
didn't particularly want people who do deal
in drugs around my children." RP 43.

unQur

The sole defense claim was that the
felony prohibition of marijuana possession,
as enforced against private possession by an
adult in his own home, was unconstitutional.
RP 76; Motion to Dismiss, CP 134.

3. The hearing on the Motion to Dismiss

was joined with the trial of the facts of
the case. °® In it both sides submitted
some nineteen volumes of documentary
materials’ and called witnesses to testify,

regarding the effects of marijuana use.

The witnesses included both "nationally

6 phe trial was continued a month so that
the state could compile all its evidence and
secure its witnesses. CP 75.

7 The documentary materials--including
scientific papers, governmental commission
reports, and books regarding the history and
effects of marijuana use--are listed in
State v. Smith, supra, 93 Wn.2d at 358-9
(Dolliver, J., dissenting), App. A.

wide
recognized experts, "8 and field profession-
als? who testifieu to their experiences with
and studies of the effects of the drug.

There was little dispute among the witnesses

8 Mem. Decision 2, App. B3. The defense
called four experts: Dr. Alan Marlatt, a
psychologist, and Dr. Lawrence Halpern, a
neuropsychopharmacologist, both from_ the
University of Washington; Dr. Joel Fort, a
psychiatrist long specializing in drug abuse
problems; and Dr. Thomas Ungerlieder, a
psychiatrist and a Commissioner on the
National Commission on Marihuana and Drug
Abuse. The State called two experts: Dr.
Reese Jones, a pharmacologist, psychiatrist,
and consultant to the National Institute on
Drug Abuse; and Dr. Gabriel Nahas, a
physiologist from Columbia University.

9 The defense called two public health
professionals from the City of Seattle,
where marijuana possession is not a crime--
Arthur Simmons, Director of the Center for
Addiction Services, and Fred Gianolla, head
of the King County Jail paramedical program
--both of whom testified their agencies'
records contained no cases of marijuana-
related health or drug problems. RP 578-
579, 1045-1050. It also called Dr. Brian
Ford, who conducted an Air Force study of
American military personnel in Spain which
found no medical or social problems
associated with marijuana use. RP 589,
600-601. The prosecution called Washington
State Trooper F. B. Walser, who testified
that he had encountered "several instances"
of “erratic driving" where he "suspected the
driver was high on marijuana" (RP 976-7),
and Brent Ebinger, a former drug addict, who
said that he had used marijuana and had
committed crimes "for drugs, and for, you
know, to live." RP 800,

7?

°**

wl Lee
On any relevant subject, 19

4. The trial court's decision came after

it took the case under advisement for a
month. It reflected the overwhelming weight
of the evidence. Primarily focusing on the
defense claim of the right to privacy in the
home--which it said required that = any
intrusion have a "fair and_ substantial
relationship" to a governmental interest in
"the health, morals, education and welfare
of the people," Mem. Decision at 5, App.B9--
it examined, and rejected, each of the

arguments that had historically been made in

10 ‘The major difference between the
State and defense experts regarded the
certainty with which the studies to date had
ruled out various possible adverse health
consequences of long-term, heavy marijuana
use. Even on this, the parameters of the
difference were fairly narrow. None of the
witnesses disagreed significantly with Dr.
Jones, the State's principal expert: "it's
hard to think of a drug that is harmless
completely in all situations." RP 401. "I
view tobacco and nicotine as exceedingly

toxic substances. Its hard for me to
conceive that marijuana would be much
worse." RP 420. "There's more known

dangers to alcohol, you iknow, [than
marijuana]; no question about that." RP 458.

-12-
support of the marijuana prohibition: +1

"(T)here is not an addictive quality,
and even psychological dependence is very
unusual. The rare case of anything
related to withdrawal symptoms seems to
occur with only extremely heavy usage,
and even then moderate irritability seems
to be the only apparent symptom.

The ‘stepping stone' theory as a
characteristic of marijuana use simply is

not true. There is no evidence that
marijuana leads one on to the use of
other drugs. No cause and effect

relationship exists. ...

Marijuana does not make the user more
violent and aggressive. To the contrary,
the effect of marijuana intoxication is
to relax and make one less aggressive.

No evidence has been developed to
substantiate the frequently stated belief
that marijuana causes an increase in
criminal activity of any kind, much less
violent crime... .

ll w(T}he rationale for the criminal-
ization of marijuana has shifted over time."
United States v. Kiffer, 477 F.2d 349, 354
(2d Cir.) cert. denied 414 U.S. 831 (1973).
The history of these shifts is comprehensiv-
ely reviewed in Bonnie and Whitebread, The
Forbidden Fruit and the Tree of Knowledge:

An History of the American Marijuana Pro-
hibition, 56 VIRGINIA L. REV. 571 (1970).
Courts have uniformly found the original
arguments for the marijuana laws "medically

insufficient, if not absurd." People v.
Summit, 517 P.2d 850, 853 (Colo. 1974).

wide
The court then discussed the evidence

regarding the long-term health consequences

of marijuana use, noting first that
"Despite exhaustive research by the
medical profession in this country and
abroad in recent years, and observations
of entire cultures of marijuana smokers
Over generations around the world, there
does not appear to be a single documented
case of permanent’ physiological or
psychological harm from this drug."

App. BlO. The court made it clear this did

not mean the drug was totally harmless

however used: 12

12 the court also noted that "contrary"
conclusions on the health issues had been
reached by Senator James Eastland in the
HEARING BEFORE THE SUBCOMMITTEE OF THE
COMMITTEE ON THE JUDICIARY, UNITED STATES
SENATE, 93rd CONG. 2nd SESS., "“Marijuana-
Hashish Epidemic and Its Impact on United
States Security", xi-xii, one of the
documents the State put into evidence. Mem.
Decision at 9-12, App. B19-24. In his
introduction to these hearings--which he
said were one-sided because they were called
"to present the ‘other side' of the story,"
id. at xv--Senator Eastland pointed to an
Warray of frightening social consequences,
Or possible consequences" of marijuana use.
Id. at xi. Senator Eastland also noted that
"the scientists who testified before the
Subcommittee were unanimous on the point
that it made no sense to send young people
to prison for simple possession of a few
joints of marijuana." Id. at xvi.

wide

"Although it may be safe to say that
moderate or even mcecderately heavy use of
marijuana has not been shown to. be
harmful to the human organism, that is
not the same thing as saying that science
may not soon show that it does cause harm
as studies and research tech .iques
improve. ° ° . Already, reputable
scientists are convinced that the burning
vegetable matter of which marijuana is
composed will be shown to be cancer
producing in much the same way as
tobacco. . « o”

App. BlO. But it concluded that

"the known oor suspected harm from
Marijuana would seem to provide an
inadequate foundation on which to base a
felony statute. The remote prospect of
some future harm does not seem. to
constitute a fair and substantial basis
for such an enactment. If the statute is
to stand, its justification must be found
in the acute or immediate effect of the
GUase 544s 6”

App. B1l5-16.

The court then found a purpose for the
marijuana prohibition unique in fifty years
of arguments over the subject, in the nature

of marijuana intoxication itself.43 tt

13 Because neither side had claimed it
was an issue, there was little testimony on
what marijuana intoxication was like. Dr.
Jones, the State's expert, did describe it
in passing thus: "the most common effect is
» « « @ relaxed, mixed relaxed, stimulated,
perceptually sharp mood state; time sense
altered, you know, a very’ pleasurable
state." RP 386.

*y?

a) Se
discounted "hallucinations and panic anxiety
reactions to marijuana intoxication" as
"extremely rare phenomena" cured by
"discontinuance and reassurance." App. B16.
But it said:

"Marijuana does interfere with the
orderly processes of the mind. The sense
of time is modified somewhat by the
relaxing effect of the drug, and complex
reasoning is interfered with, as is the
ability to concentrate effectively.
Carefully controlled experiments have not
explained just how the learning process
is affected, but there is7 reliable
evidence that information acquired during
intoxication is not stored efficiently in
the memory centers of the brain. The

intangible known’ as ‘incentive’ is
depressed while under the influence, and
motor mechanical coordination is
significantly impaired. . Detailed and
carefully controlled studies now

establish that the operation of motor
vehicles while under- the influence
produces a significantly greater number
of automobile accidents, including
fatalities, than is the case with
non-users. Airplane pilots, in simulator
studies, made substantially greater
errors in judgment while under_ the
influence of marijuana, and some errors
persisted for six hours after use."

App. Bl7-18. Without further elaborating on
how these effects, in private use, related
to any State interest, the court declared

these were were "matters clearly affecting

e-?

ai6a
the health, education and welfare of the
people of the state" and that justified the
criminal prohibition of marijuana. App. B27.

Rejection of the other defense arguments
followed in train: though the court
acknowledged that the defense claim that
other, legal substances were more harmful
"would appear to be true," it said this did
not "compel a conclusion" the laws against
marijuana denied Equal Protection; and
because it found a "fair and substantial"
basis for the law, it held the felony
punishment it carried was not cruel and
unusual. App. B26-27.

The court accordingly entered a finding
of guilt (App. B27-28), and later sentenced
Jim Smith to five years imprisonment,
deferred on condition of probation and a

°*

al Fa

S. The appeal went directly to the

Supreme Court of Washington, and was joined
with that of two other cases raising similar

issues. State v. Smith, 93 Wn.2d 329 (1980),

App. A. After extensive briefing, +4 and
argument and reargument of the case, that
Court affirmed by a sharply divided vote.
Ibid. Both the majority and dissenting
Justices accepted the factual findings of
the trial court, id. at 338 (majority
Opinion), 359-362 (Dolliver, J., dissenting)
--but considered them relevant to different

issues.

14 While the appeal was pending,
petitioner submitted additional authorities
indicating that "few new developments have
been reported" regarding the human effects
of marijuana in the scientific literature
since the hearing in this case. MARIHUANA
AND HEALTH, Seventh Annual Report to the
U.S. Congress from the Secretary of Health,
Education and Welfare at 2 (1978); see also
MARIHUANA AND HEALTH, Eighth Annual Report
to the U.S. Congress from the Secretary of
Health, Education and Welfare at v-vii
(1980).

718

The majority applied the factual findings
only to one of the issues raised on appeal--
the claim that classification of marijuana
as a criminally prohibited substance denied
equal protection. Id. at 335-8. To reject
that claim, it specifically overrulled its
prior holdings that a criminal "“classifica-
tion must rest upon some difference that has

a fair and substantial relation to the

legislation." Id. at 336n.2. Instead it
rejected the equal protection argument
because the defense had failed to “show,
beyond a reasonable doubt, that no state of
facts exists or can be conceived sufficient
to justify the challenged classification,"
id. at 337--given the trial court's findings
and the possibility that “the legislature
may well have considered more evidence than
was brought before the trial court in this

case," id. at 338,15

15 the record contained an affidavit
from the legislative author of RCW Chapter
69.50 which said, "No evidence was taken by
the legislature on thle] specific subject"
of whether "marijuana met the criteria for
inclusion in Schedule I. ..." CP 120.

ol Ga

The majority's decision on the privacy
issue did not depend on any findings or
assumptions of fact. Adopting the rationale

of State v. Anderson, 16 Wn.2d 553, 558 P.2d

307 (1976), it said that the sources of
""the right to privacy in the home... .
limit that right to activities involving
important or fundamental rights,'" and
""refuse[d] to extend the right of privacy
in the home to . eo « the possession .. .
of marijuana.'" 93 Wn.2d at 348. It thus
held that enforcement of the marijuana
prohibition against private possession in
the home impacted no constitutional right at
all, thereby dispensing with the need to

find it served any state interest.

=20-

Similarly, the majority rejected the
argument that the felony punishment of
private marijuana possession was constitu-
tionally cruel and unusual, holding that "a
deferred sentence of five years and
probation of three years, was not grossly
disproportionate to the offense." Id. at
329. Four Justices dissented from this last
conclusion: 16 they held that imposition
of "the status of a convicted felon, to
lose the right to vote .. . or hold public
GCEEICS . «+ GAG your "Givil righte* «..
simply for mere possession of over 40 grams
of marijuana does not comport with current
Standards of decency" and "“violate[s] both
the Eighth Amendment and [Washington] Const.
art. 1, §14." Id. at 366-367 (Dolliver, J.

dissenting).

16 Chief Justice Utter, agreeing that a
felony conviction "for possession of
marijuana .. . violate[s] federal and state
prohibitions on cruel and unusual punish-
ments" did "not reach the equal protection
and privacy claims" made in the appeal. Id.
at 354.

my

HOW THE FEDERAL QUESTION WAS RAISED AND
DECIDED BELOW

Before trial, petitioner moved to dismiss

the charge on the ground, inter alia, that

the law "making private possession of
marijuana in the home a felony" "violates
the right to privacy .. . guaranteed by the
Fourteenth Amendment to the Constitution of
the United States ... .” CP 134. In
support of that Motion he argued that the
law against private "possession of marijuana
tramples on this right by telling the
individual . . . what he may do and possess
in the privacy of his own home where no one
else is affected--and by sending in agents
of the State .. . when it is suspected the
State's dictates are not being followed."
Prelim. Memo at 7, CP 142. The trial court
held that the "legislature is properly
concerned with minimizing the impact" of the
"euphoric state of intoxication" marijuana
creates, and denied the Motion. Memorandum

s
Decision at 14, App. B27.

ata

On appeal to the Washington Supreme Court
petitioner argued that, particularly under
the Fourth Amendment, "The power of the
State to regulate and control its citizens’
activities ° ° - without’ significant
justification clearly ends at the threshhold
of the private dwelling." App. Br. 34-5.
That Court rejected that argument, holding
that "'the right of privacy in the home'" is
""limit[ed] . . . to activities involving

important or fundamental rights.'" State v.

Smith, supra, 93 Wn.2d at 348.

matin

REASONS FOR GRANTING THE WRIT

This Petition asks this Court to decide
one limited and fundamental issue: whether,
under the Fourth Amendment, there is a
general right to be free from searches of
homes which are "unreasonable" because they
are aimed at purely private activity which
neither involves nor affects anyone other
than the homeowner himself; or whether, as
the court below held, the right to privacy
in the home is limited, and applies only to
activities subject to distinct protection
under the Constitution.

That issue arises here in the context of
a prosecution for possession of marijuana;
but it involves no question of the power of
the government to regulate that drug or any
Other. It questions only the power of the
government to enforce its regulations by
intrusion into private homes, to interdict
purely private behavior which has no moral
component and which demonstrably affects no

public interest. ‘

otha

Petitioner respectfully submits that, by
every measure, it is an issue worthy of
this Court's review.

l. The issue is squarely presented here.

The invasion of home privacy in this
case was.as severe as any such governmental
intrusion could be. Acting on a report
from a “concerned citizen," State officers
penetrated into the most private parts of
Jim Smith's house--his marital bedroom and
personal papers (RP 19-20)--and then took
him from it under arrest (RP 739). This
was "standard operating procedure" (RP 29)
in the enforcement of this law.

The State made no claim this action
served any purpose but to control Jim
Smith's purely private behavior. It alleged
no implications of his conduct to others
than himself, and made it clear it was "not
charging him with intent to deliver or

manufacture." RP 48,

=a%§e
The trial court held the intrusion was
constitutional--though the "crime" it was
aimed at posed no danger to others--finding
a state interest in protecting "the health,
education and welfare of the people” by
prohibiting them from temporarily altering
their “learning, incentive, efficiency, and
motor coordination" by using marijuana,
even in private. See page 16, above. The
Washington Supreme Court held the intrusion
required no justification, because "“"'the
right to privacy in the home'" is "'limited
» « « to activities involving important or
fundamental rights.'" See page 22, above.
Those decisions, and the facts of this
case, squarely present the issue raised

here.

>

-26-

2. The issue is fundamental.

The idea of a distinct right of privacy
in the home is hardly of modern origin. An
"overriding respect for the sanctity of the
home...has been embdeded in our traditions
since the origins of the Republic." Payton

v. New York, 48 U.S.L.W. 4375, 4383 (U.S.,

April 15, 1980).

"The zealous and frequent repetition of
the adage that ‘a man's house is his
castle,' made it abundantly clear that
both in England and the colonies the
‘freedom of one's house' was one of the
most vital elements of English liberty."

Id. at 4381 (footnotes omitted).

The defenses of this freedom that led to
its protection in the Fourth Amendment held
that the power of the government to enter
into homes was, or should be, limited:

"When Pitt denounced the cider tax and

James Otis spoke out against the writs

of assistance and Patrick Henry opposed

the adoption of the Constitution without

a Bill of Rights, they were primarily

interested in protecting the homes of

ordinary persons against indiscriminate
and unreasonable governmental invasions.

Barratt, Personal Rights, Property Rights,

and the Fourth Amendment, 1960 SUP. COURT

REV. 46, 71 (1960) (footnotes omitted).

So

Pitt's defense of the right of the
"poorest man .. . in his cottage [to] bid
defiance to all the forces of the Crown,"
which "echoed and re-echoed throughout the

Colonies," Payton v. United States, supra,

48 U.S.L.W. 4383 n.54, warned “particularly
against the dangerous precedent of
admitting officers of the ecise_ into
private houses." LASSON, THE HISTORY AND
DEVELOPMENT OF THE FOURTH AMENDMENT OF THE
UNITED STATES CONSTITUTION 41 (1937). That
precedent--even under the plausible guise
of enforcement of the taxing power}7_-
was a marked expansion of the authority of
the government to enter and search homes,

which at common law had been limited to

17 whe tax to which Pitt sooke applied
to "'subjects who from the growth of their
own orchards, make Cyder and Perry'" and
made their "'private houses .. . liable to
be searched at pleasure.'" LASSON, supra,
at 42. It was later repealed, "coincidental
with the resolution of the House of Commons
concerning general warrants." Ibid.

=~28—

"cases of felony."18 The response to
that expansion forged the concept of
liberty that later found expression in the
Fourth Amendment. LASSON, supra at 40-50.

Part of that concept held the power to
‘search homes should be restricted, not just
by proper warrant procedures, but by
limiting the occasions where it could be
exercised. One of Pitt's proposals to end
abusive searches for papers would have
explicitly limited the offenses for which
any such warrant could issue. Id. at 49.
Henry's argument thirty years later for "a
bill of rights" to "restrai[n] within
proper bounds" the power of the government
to "go into your cellars and rooms, and

search, ransack, and measure everything you

18 Weeks v. United States, 232 U.S. 383,
390 (1914). Of course, among the felonies
against which search warrants were most
abusively employed in England were crimes
of. political and religious dissent foreign
to our law. See LASSON, supra at 25-32.
But by the standard of the time, they were
serious public offenses nonetheless.

@29@
eat, drink, and wear," 3 ELLIOT, DEBATES
448-9 (1854), clearly called for similarly
substantive limitations on that power.

The language of the Fourth Amendment
answered that call and clearly prohibited
all “unreasonable searches and seizures."
That distinct guarantee was first proposed,
and later inserted, by Egbert Benson, who
argued that though the warrant clause

"was good as far as it went, it was
not sufficient .. . The provision as he
proposed it contained two clauses. The
general right of security from unreason-
able search and seizure was given a
sanction of its own and the amendment
thus intentionally given a_ broader
scope. That the prohibition against
"unreasonable searches" was intended,
accordingly, to cover something other
than the form of the warrant is a
question no longer left to implication
to be derived from the phraseology of
the Amendment."

LASSON, supra at 103 (original emphasis).
The clear import of that language, and

the idea to which it responded, was that

the freedom of the home is not limited, but

is a general right which yields only to

=%tie
superceding public interests. James Otis
sparked the fight for American liberty with
exactly that argument

"A Man, who is quiet, is as secure in
his House, as a Prince in his Castle--
notwithstanding all his Debts, & civil
processes of any kind.--But for Flagrant
Crimes, and in Cases of great public
Necessity, the Priviledge may be incrohd
on."

Barrett, supra, at 71, quoting Quincy's

Mass. Rep. 471 (1865). That is the same
argument petitioner relied on below:

"The privacy of the individual's home
cannot be breached absent a persuasive
showing of a close and_ substantial
relationship of the intrusion to a
legitimate governmental interest. Here,
mere scientific doubts will not suffice.
The state must demonstrate a need based
upon proof that the public health or
welfare will in fact suffer if the
controls are not applied.”

Ravin v. State, 537 P.2d 494, 511 (Alaska

1974). The explicit rejection of that
claim by the court below calls’ into
question the very scope and meaning of the

Fourth Amendment.

>

a3tev

3. The issue is substantial.

This Court has clearly recognized "the
Constitution extends special safeguards to

the privacy of the home." United States v.

Orito, 413 U.S. 139, 142 (1973).

"The Fourth Amendment' protects the
individual's privacy in a variety of
settings. In none is the zone of
privacy more clearly defined than when
bounded by the unambiguous’. physical
dimensions of an individual's home--a
zone that finds its roots in clear and
specific constitutional terms: ‘the
right of the people to be secure in
their...houses...shall not be violated.'
That language unequivocally establishes
the proposition that '[a]t the very core
[of the Fourth Amendment] stands’ the
right of a man to retreat into his own
home and there be free from unreasonable
government intrusion,.' Silverman v.
United States, 365 U.S. 505, r

Payton v. New York, supra, 48 U.S.L.W. at

4380.

This Court has twice enforced the Fourth
Amendment's ban on entries into homes which
are "unreasonable" because they serve no
legitimate state interest--in cases which,
like this one, criminal prosecutions for

private domestic conduct were involved.

7%

=t2=

Griswold v Connecticut, 381 U.S. 479 (1965)

invalidated state laws "forbidding the use
of contraceptives rather than regulating
their manufacture or sale" because of the
intrusions into "the sanctity of the home"
they implied. Id. at 484-5 (plurality

opinion). Stanley v. Georgia, 394 U.S. 557

(1969), similarly held that criminal laws
against obscenity could not “reach into the
privacy of one's own home" because the
state "cannot constitutionally premise
legislation on the desirability of
controlling a person's private thoughts,"
and because there was "little empirical
basis" for any contention that the private
perusal of obscene matter led to public
anti-social behavior. Id. at 565-7.

These cases seem to embody "a reaffirma-

tion that 'a man's home is his castle.'"19

19 paris Adult Theater No. 1 v. Slaton,
413~ U.S. 49, 69 (1973). If “obscene
material has no protection under the First
Amendment," id. at 66, Stanley can only be
read as a privacy case. Ibid.

-y

a3 3u
They speak of “myriad activities that may
lawfully be conducted within the privacy of
the home, but may be prohibited in public."

United States v. Orito, supra, 413 U.S. at

142. They say that, at least in the home,
"the right to be let alone" is "the most

comprehensive of rights." Olmstead v United

States, 277 U.S 438, 478 (1928) (dissenting
opinion of Mr. Justice Brandeis).

This petition asks whether that is what
these cases mean--whether the right to be
let alone in the home protects even actions
possibly foolish or unhealthy which affect
no one else. 29 It is a question this
Court has not previously addressed, and one

worthy of its review.

20 See Application of the President and
Directors of Georgetown Hospital, 331 F.2d
1010, 1017 (D.Cc.Ccir. 1964), cert. denied
377 U.S. 978 (1964) (dissenting opinion of
Judge Burger); cf. Papachristou v. City of
Jacksonville, 405 U.S. 6, 163 (1972).

Pie

o34<

4. This Court has not decided the issue.

No previous decision of this Court has
Clearly determined if the right to privacy
in the home encompasses private acts in
that setting which--like possession of
marijuana--have no special claim to consti-
tutional protection, but which impact no

cognizable state interest.*1 Nor has it

21 Certainly, this Court has never
decided whether the constitution permits
the enforcement of laws against private
marijuana possession in the home. Its two
decisions on the merits of challenges to
marijuana prohibitions understandably found
without substance a privacy claim in a case
involving marijuana sale, Boraas v. State,
229 So.2d 244, 246 (Fla. 1969), appeal
dismissed 400 U.S. 800 (1970), and a con-

tention that marijuana use is a protected
religious practice, Gaskin v. State, 490
S.W.2d 521, appeal dismissed 414 U.S. 886
(1973). Only three previous applications
for certiorari petitioner has found have
raised this issue: one in an injuncation
action, Louisiana NORML v. Guste, 300
F.Supp. 404 (E.D.La. 1974) aff'd 511 F.2d
1400 (5th Cir.) cert. denied 423°U.S. 867
(1975), and two decided below partly on
procedural grounds, State v. Kantner, 53
Hawaii 327, 493 P.2d 306, cert. denied 409
U.S. 948 (1972); Cavanass_v. State, 581
P.2d 475, 478, (Ok.Cr.App. 1978), cert.
denied 439 U.S. 1117 (1979).

a

o38e
indicated such acts somehow fall outside
the scope of that right.

This Court has twice said, in dicta,
that among the "very limited circumstances"
which justify exceptions from the “right to
be free . . . from unwanted governmental

intrusions into one's privacy," Stanley v.

Georgia, supra, 394 U.S. at 546, are those

involving the use of drugs which have clear
public consequences. Even in the home,
“possession of . . . narcotics" may not be
entitled to privacy protection, id. at
568n.11, because of the decidedly public
"problem of the addict . . . [who] will
commit crimes, if necessary, to obtain his

drug." State v. Zornes, 78 Wn.2d 9, 19n.5,

475 P.2d 109 (1970). But marijuana “is not
» « « a narcotic drug" id. at 16, as "its
use does not lead to addiction" or "create
the problems of addiction." Id. at 19.
Nor is there any evidence, or any claim or

finding here, that “idleness, disorder,

=-36<
pauperism, and crime. .. are traceable to"

marijuana use. Compare Mugler v. Kansas,

123 U.S. 623, 662 (1887).

Acknowledgement of the state's power to
enter homes to interdict the use of drugs
which create those kinds of social problems
does not answer the question here. Nor is
the validity of state laws prohibiting
""'traditional offenses against good
morals'"22-- a "difficult question" which
"the Court has not definitively answered,"

Carey v. Population Services Int'l, 43l

U.S. 678, 694n.17 (1977)--any part of the
issue in this case. Laws against drug use
have neither religious nor common _ law
roots, see FREEMAN, NARCOTICS CASES:
PROSECUTION AND DEFENSE 76 (1970), and have

no “moral" content: "Possession of a

22 Doe v. Commonwealth's Attorney, 403
o. < Buens LL99, 1202. (BeBe Was’ L97S)5
affirmed 425 U.S. 901 (1976), quoting Poe
7 @eeeen, 367 U.S. 497, 333 T1 oly
(dissenting opinion of Mr. Justice Harlan).

-

°®

a)
natural growing plant can hardly be malum

in se." People v Sinclair, 357 Mich. 91,

194 N.W.2d 878, 905 (1972) (Brennan, J.).
Private marijuana possession is in no
category of acts this Court has declared
subject to state control in the home. It
is neither more nor less’ entitled to
constitutional protection than anything
else. Its only distinguishing feature, as
the court below found, is that it involves
an intoxicant. Whether that fact is enough
to justify state entry into a home , 23
or what is enough, are questions to which
this Court has not finally spoken. Compare

Powell v. Texas, 392 U.S. 514, 533 (1968).

23. The trial court's assertion of a
state interest in prohibiting the "state of
intoxication" caused by marijuana itself
approaches an endorsement of governmental
"power to control men's minds" against
which “our whole constitutional heritage
rebels." Stanley _v. Georgia, supra, 394
U.S. at 565. The government of Iran lately
Outlawed broadcast music for much the same
reason the trial court used: it "stupifies
persons . . . and makes their brains
inactive and frivolous." The New York
Times, July 24, 1979 1:1.

~38=

5. Lower courts have divided on the issue.

The decision of the court below is
consistent with those of most other courts
which have confronted the issue presented
here in cases involving private marijuana
possession in the home. 24 But at least
One state Supreme Court has reached a

directly contrary result.

24 Relatively few constitutional challenges
to marijuana laws have involved private
possession and claims based on the right of
privacy in the home. The vast majority of
such challenges have come in importation,
sale, conspiracy to sell, possession with
intent to sell, or other plainly commercial
activities. See Soler, Of Cannibis and the
Courts, 6 CONN. L. REV.601 (1974) and cases
there cited; see also, e.g., United States
v. Rodriguez-Camacho, 468 F.2d 1220 (9th
Cir.), cert. denied 410 U.S. 984 (1972);
State v. Rao, 370 A.2d 1310 (Conn. 1976);
State v. Liens, 234 N.W.2d 645 (Iowa 1975);
State v. Donovan, 344 A.2d 401 (Me. 1975);
State v. Mitchell, 563 S.W.2d 18 (Mo.1978);
Evans v. State, 569 P.2d 503 (Ok.Cr.1977);
State v. Strong 245 N.W.2d 277 (S.D.1976).
None of these cases are in point here,
because of the basic difference "between
legislation which seeks to regulate econ-
omic and social relationships and that
which intrudes into the purely private
sphere of human life." State v. Kantner,
supra, 493 P.2d at 317-8 (Abe, J.). See
- United States _v. Orito, supra; compare
Ravin v. State, 537 P.2d 494 (Alaska 1975),
with Belgard v. State, 543 P.2d 206 (Alaska
1975).

7%

a3 Ou

A unanimous court in Ravin v. State, 537

P.2d 494 (Alaska 1975) held that--because
"the home carries with it associations and
meanings which make it particularly impor-
tant as a situs of privacy" protected
"under “both the federal and Alaska
constitutions," and because no "close and
substantial relationship between the public
welfare and control of .. . possession of
marijuana in the home for personal use"
could be shown--the enforcement of laws
against private marijuana possession in the
home is unconstitutional. Id. at 504. In

State v. Kantner, supra, 493 P.2d at 306,

three of five Justices reached similar

conclusions?2--but because one of them

25 see id. at 312-3 (Abe, J.) ("that
marijuana is harmful to the user does not
authorize the State under its police power
to prohibit its use"), 315 (Levinson, J.)
("the State has failed to establish that
the private, personal use of marihuana.
harms either the user or society"), 320
(Kobayashi, J.) ("the harm created by plac-
ing a criminal sanction on the activity of
a significant percentage of our population
- « « far outweighs any present benefit to
be derived from the effects of classifying
marihuana as a narcotic.").

-40-
found the issue improperly preserved in the
trial court, id. at 3ll (Abe, J.), a major-
ity voted to uphold the conviction.

Other courts have rejected such privacy
challenges. Several have done -so in the
context of civil actions to enjoin the
enforcement of such marijuana laws, which
they understandably saw as asking’ the
"court to substitute its judgment... for
that of the respective legislatures. "26
But several others have upheld criminal
convictions2’ for private possession of

marijuana in the home against privacy

26 Louisiana NORML v. Guste, supra, 380

F. Supp. at 408; see also NORML v. Bell,

F. Supp. 26 Cen. gees (Os.C.0.G.

Feb. 11, 1980); Illinois NORML v. Scott, 66

Ill. App. 3¢ 633, 383 N.E.2d 1330 (1978);

Marcaux v. Ar torney ceneral, Mass. __—_,
).

375 N.E.2d 688 (19

27 Significantly, two recent cases have
upheld police entries into homes on which
marijuana prosecutions were based, on the
explicitly limited ground that the entries
were made for another legitimate purpose.
Cavanass v. State, supra, 581 P.2d at 478;
Zander v. District Court, 591 P.2d 656, 594
P.2d 273 (Mont. 1979).

+

.$o0.2d 908 (La. 1978); State v. shepard:

white
challenges--either simply deferring to the
legislative decision to prohibit the sub-
stance,*8 or holding, as the court did
here, that the right of privacy did not
"extend" to the possession of marijuana. 2?
Thus, though there is a split among the
lower courts on this issue, the conflict is
not wide. But it is deep: individual
Justices writing separately have protested
the decisions in the most vehement terms:
"(T]he real purpose of the criminal-
ization of the possession of marijuana
is simply to perpetuate society's...
prejudice against marijuana ... .
Clearly, the only confirmed harm of
marijuana is, not in marijuana per se,
but he laws which criminalize the

possessor.

State v. Baker, supra, 535 P.2d at 1405

(Kobayashi, J., dissenting).

28 see State v. Baker, 535 P.2d 1394
(Hawaii 1975); State v. Kincaid, 98 Idaho
440, 566 P.2d 763 (1977); State v. Kells,
199 Neb. 374, 259 N.W.2d 19 (1977).

29. State v. Murphy, 117 Ariz. 57, 570
P.2d 1070 (1977); State v. Chrisman, 364

N.Y. 2d ? N.E.2d (June 6,

a4 2e

"Too often we want protection for what
‘we' do in the privacy of ‘'our' homes
but not for what '‘'they' do in the
privacy of ‘their’ homes."

Zander v. District Court, supra, 594 P.2d

at 297 (Shea, J., concurring in part).

"'"Big Brother’ cannot, in the name of
public health, dictate to anyone what he
can eat or drink or smoke in the privacy
of his own home."

People v. Sinclair, 387 Mich. 91, 194

N.W.2d 878, 896 (Kavanagh, J., concurring).
Though the direct conflict here is with
only one other State's highest court, its
remarkable result is that people like Jim
Smith are subject to felony conviction for
acts which, across the state line, are held
protected by the federal constitution, 3?
That, and the conflicting voices of the
judges who have spoken out on this issue,
further underscore the importance of this

Court's review here.

30 It is worth noting again in this
context that--neither in Alaska nor in the
jurisdictions which have legislatively
removed criminal penalties for private
marijuana possession--have adverse social
consequences been reported. See MARIJUANA:
A STUDY OF STATE POLICIES AND PENALTIES
(National Governors Conf. 1977); note 9,
above.

7%

af 3@

6. The issue is of extraordinary importance

Literally millions of American homes are
subject to the kind of intrusion the Smith
family suffered in this case. As of four
years ago, marijuana was "smoked regularly
by nearly fifteen million Americans;
probably in excess of thirty million
citizens hald] tried it."3l Any law
which penetrates so far into so many lives
is clearly a matter of major constitutional
concern.

But the greatest constitutional cost of
the enforcement of these laws is not the
present jeopardy of police intrusion into
these person's homes--nor the disruption of
the judicial process which their arrests

cause or the disrespect for the rule of law

31 State v. Smith, supra at 93 Wn.2d 354
(Dolliver, J., dissenting). These numbers
appear to have increased, perhaps
substantially, since 1976. MARIJUANA AND
HEALTH, Eighth Annual Report to the U.S.
Congress from the Secretary of Health,
Education and Welfare at 2 (March 1980).

=>

*?

wlda
it creates.32 The greatest damage done
to the Constitution by the marijuana laws
lies in the legacy of decisions like the
one below. When the fears that led to the
marijuana laws are forgotten and the recom-
mendations of all the Commissions become
law; when the use of marijuana is no longer
seen to be rebellious or stylish, but as
the relatively harmless self-indulgence it
is; those decisions will stand if this
Court lets them. Under the precedent they
set, the home will be a refuge only for
activities to which legislatures and
courts, by fiat, say the right of privacy
"extends." That precedent will be ready
for the next wave of social reformers who
decide what is best for the “health,
education and welfare" of others, in a
technological age where no refuge will be

conceivable if there is none in the home.

32 These costs are not insignificant.
See, e.g., NATIONAL COMMISSION ON MARIHUANA
AND DRUG ABUSE, MARIHUANA: A SIGNAL OF
MISUNDERSTANDING 144-5 (1972); KAPLAN,
MARIJUANA--THE NEW PROHIBITION 36-7 (1971)

-45-

Before these precedents are implanted
more deeply into our law, this Court should
decide whether they are consistent with
what the Constitution means.

CONCLUSION

The writ of certiorari should be granted.

Respectfully submitted,

Timothy K. Ford

Daniel Hoyt Smith

SMITH, KAPLAN, WITHEY,
SOWA & SALMI

2200 Smith Tower

Seattle, Washington

Charles S. Sims

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

132 W. 43d Street

New York, N.Y. 10036

Seattle,
July 22, 1980.

APPENDIX A:
DECISION OF THE SUPREME COURT
OF THE STATE OF WASHINGTON

Apr. 1980 STATE v. SMITH 329

93 Wn.2d 329
[Nos. 45296, 44890, 44597. En Banc. April 24, 1980.]

THE STATE OF WASHINGTON, Respondent, v. JAMES H.

Smitu, Appellant.

THE STATE oF WASHINGTON, Respondent, v. Davin L.

ANDERSON, Petitioner.

Tue STATE oF WASHINGTON, Respondent, v. Davin J.

(1)

(2)

[3]

[4]

[5]

REDWINE, ET AL, Appellants.

Constitutional Law — Equal Protection — Classifications
— Test — Rational Relationship. The rational relationship
test for determining the validity of statutory classifications chal-
lenged on equal protection grounds is applied whenever the legis-
lation does not infringe upon fundamental rights or create a
suspert classification. The party challenging the classifications has
the burden of proving beyond a reasonable doubt that no state of
facts could reasonably be conceived which shows a rational rela-
tionship between the classifications and a legitimate governmental
objective. Courts will not consider the wisdom of the classifications
or changes in public opinion.

Controlled Substances — Possession .— Penalties —
Power of Legislature. Once the legislature has reasonably
determined that a drug is dangerous, it has broad discretion in
prescribing criminal penalties for its possession.

Controlled Substances — Marijuana — Possession or
Delivery — Equal Protection. RCW 69.50.401(a) and former

’ (c) (now (d)), which prescribe criminal penalties for possession and

delivery of marijuana, are rationally related to the protection of
public health and safety and do not violate equal protection
guaranties.

Constitutional Law — Equal Protection — Scope of Reg-
ulation. A statute does not violate equal protection merely
because it does not regulate all of the evils perceived by the
legislature.

Criminal Law — Punishment — Cruel and Unusual Pun-
ishment — Presumption of Validity. In determining whether
a criminal penalty violates the prohibition against cruel and
unusual punishment, a court will presume the validity of the legis- |
lative determination and will not invalidate a penalty merely
because it believes that a less severe ney, would adequately
serve the ends of public policy.

330

(6)

(7)

[8]

(9)

(10).

(11)

[12]

STATE v. SMITH Apr. 1980
93 Wn.2d 329

Criminal Law -- Punishment — Cruel and Unusual Pun-

ishment — What Constitutes. A criminal penalty is grossly
disproportionate to the offense so as to constitute cruel and
unusual punishment only if the conduct should never be pro-
scribed or the punishment is clearly arbitrary and shocking to the
sense of justice.

Controlled Substances — Marijuana — Possession —
Cruel aud Unusual Punishment. A defendant convicted of
possessing more than 40 grams of marijuana under former RCW
69.50.401(c) (now(d)) is not subjected to cruei and unusual pun-
ishment by virtue of the classification of the crime as a felony or
by the imposition of a deferred sentence appropriate to a felony.

Controlled Substances — Marijuana — Possession or
Delivery — Right to Privacy. The prohibition of RCW 69.50-
.401' against possession and delivery of marijuana does not inter-
fere with any fundamental right. The constitutional right to
privacy in the home does not encompass a right to possess or
deliver marijuana for personal use in one's home.

Criminal Law — Entrapment — What Constitutes. Entrap-
ment occurs when the criminal design originates in the mind of the
law enforcement official rather than the accused and the accused is
lured or induced into committing a crime which he otherwise had
no intention of committing. When considering an entrapment
defense, the trier of fact need not weigh public policy factors or
the good faith of the law enforcement official.

Criminal Law — Subterfuge — Due Process. A police offi-
cer's use of subterfuge does not violate a defendant's due process
rights unless his conduct is so shocking as to violate fundamental

fairness.

Searches and Seizures — Warrant — Underlying Evi-
dence — Sufficiency. A magistrate may properly exercise his
discretion to issue a search warrant if his consideration of all the
facts and circumstances sworn to as well as the reliability of any
informant leaves him with good reason to believe that criminal
activity has occurred.

Criminal] Law — Punishment — Discretion of Court —
Review. The imposition of a criminal sentence constitutes an
abuse of discretion only if the reviewing court can say that no rea-
sonable person would take the view adopted by the trial court.

Utter, C.J., and Dottiver, Hicxs, and WiL.iams, JJ., dissent in part by
separate opinions. :

Apr. 1980 STATE v. SMITH 331
93 Wn.2d 329 .

Nature of Action: Separate prosecutions for marijuana
related offenses. Defendant Anderson was charged with
delivery of marijuana and possession of less than 40 grams
of marijuana. Defendants Redwine and Smith were charged
with possessing over 40 grams of marijuana.

Superior Court: Defendant Anderson was convicted in
the Superior Court for Cowlitz County, No. 5075, Frank L.
Price, J., on January 17, 1975. Defendants Redwine were
convicted in the Superior Court for Grant County, No.
3855, B. J. McLean, J., on December 19, 1975. Defendant
Smith was convicted in the Superior Court for Snohomish
County, No. 8418, John E. Rutter, Jr., J., on January 12,

1978.

Court of Appeals: The court affirmed the conviction of
defendant Anderson at 16 Wn. App. 553, holding that his
right to privacy in his home did not extend to the posses-
sion or delivery of marijuana.

Supreme Court: Holding that the criminal penalties
for possessing and delivering marijuana prescribed by RCW
69.50.401 do not violate equal protection of the law or the
right to privacy or constitute cruel and unusual punish-
ment, and that the lower courts had made no errors in giv-
ing instructions, imposing sentences, and issuing a search
warrant, the court affirms the judgments.

Clifford R. Kuhn, Don L. McCulloch, and Roethler &
McCulloch, for petitioner Anderson.

Ries & Kenison, by Jerry J. Moberg, for appellants
Redwine.

Smith, Kaplan, Withey, Theiler & Sowa .and Daniel
Hoyt Smith (Timothy K. Ford of American Civil Liberties
Union of Washington and the National Organization for
the Reform of Marijuana Laws), for appellant Smith.

Robert E. Schillberg, Prosecuting Attorney for
Snohomish County, David G. Metcalf and Carl K. Chen,
Deputies, Paul Klasen, Prosecuting Attorney for Grant

332 STATE v. SMITH Apr. 1980
93 Wn.2d 329

County, and James A. Whitaker, Deputy, Henry R. Dunn,
Prosecuting Attorney for Cowlitz County, and James E.
Warme, Deputy, for respondent.

Robert H. Aronson on behalf of University of
Washington Appellate Advocacy Program, amicus curiae.

ROSELLINI, J.—This is a consolidated appeal of four indi-
vidual criminal convictions. Each of the defendants was
convicted of a violation of the Uniform Controlled Sub-
stances Act, RCW 69.50. We consolidated the appeals to
facilitate the resolution of issues which raise constitutional
challenges to the statutory prohibitions. We affirm the con-
victions. |

Petitioner Anderson was convicted in Cowlitz County
‘Superior Court of violation of RCW 69.50.401{a), the proof
showing that he gave a small amount of marijuana to a
police agent. In addition, he was convicted of a misde-
meanor, possession of marijuana in a quantity less than 40
grams. Division Two of the Court of Appeals affirmed the
convictions in a published opinion. State v. Anderson, 16
Wn. App. 553, 558 P.2d 307 (1976). This court granted a
petition for review.

The appellants Redwine and Smith were respectively
convicted in Grant and Snohomish County Superior Courts
for violations of RCW 69.50.401(c), punishing the felonious
possession of over 40 grams of marijuana. The activity upon
which their convictions are factually based was confined to
areas in and around their private residences. None of these
parties disputes the sufficiency of the evidence to establish |
possession or delivery of marijuana. Rather, they argue that
in light of the locus of the crimes and current information
regarding marijuana, their convictions are constitutionally
infirm.

These parties, referred to herein as the defendants, join
in two constitutional challenges. They argue that the statu-
tory scheme prohibiting marijuana delivery or possession

Apr. 1980 STATE v. SMITH 333
93 Wn.2d 329

bears no fair and substantial relation.to legitimate govern-
mental objectives and thus violates equal protection guar-
anties; and that their constitutional right to privacy
protects marijuana possession and use within the home,
because the State has shown no substantial reason for the
regulation. The defendant Smith adds a contention that the
punishment prescribed for possession is cruel and unusual.
These constitutional challenges are framed against the trial
record of defendant Smith. We will precede our discussion
of the constitutional issues by reviewing this record which
defendants assert establishes the unconstitutionality of the
challenged statutory scheme.

The record upon which defendants rely contains the tes-
timony of several expert witnesses. In addition, it contains
the testimony of a former drug addict, as well as the testi-
mony of a police officer. The record establishes that mari-
juana, like alcohol, when ingested into the human body,
produces physiological and psychological effects. The chief
active ingredient in marijuana, and the one largely respon-
sible for its effects, is called tetrahydrocannabiniol (THC).
The level of THC in samples of marijuana varies, and this
variation accounts in part for the differences in human
reactions to the drug. There is no way of predicting how
much THC will be found in a given quantity of marijuana,
since it is a plant—a collection of substances easily subject
to change. 7

There is little question, under the evidence, that once a
threshold dose of THC, as in marijuana, is ingested by a
person, it will produce a euphoric state of intoxication. In
addition to this state, there is accompanying distortion of
the person's sensory perceptions. The record reflects that
use of marijuana impairs an individual's motor coordina-
tion, learning ability, and motivation.

Expert witnesses also informed the trial judge that there
are other frequently recognized and often debated effects of
marijuana. These include effects on: (1) chromosomes,
(2) the endocrine system, (3) testosterone (a hormone), and

334 STATE v. SMITH Apr. 1980
93 Wn.2d 329

(4) the formation of deoxyribonucleic acid (DNA) (the
substance of which genes are composed).

There is evidence that marijuana may cause deleterious
effects not caused by alcohol. Thymidine is a chemical
which is the building block of DNA. The testimony indi-
cates that marijuana may affect the incorporation of
thymidine into DNA, whereas alcohol does not. Further,
THC is not degraded in the body in the same way that
alcohol is. A dose of THC may. remain in the body up to 8
days.

Scientific findings respecting marijuana effects are not
settled. One expert said that chromosome studies are “at
variance with each other". Another expert, remarking on
the difficulty of experimentation and documentation in the
area of marijuana effects stated candidly: "It is not some-
thing you get a quick answer to."

This is amply demonstrated by the divergent results of
studies. For example, in one experimental study com-
mented upon by an expert Witness, evidence of brain atro-
phy was found in marijuana users. Yet, in another study
which utilized a different measurement technique, no evi-
dence of atrophy was found. This divergence led an expert
to state that with regard to marijuana's effects: "There is
generally legitimate debate amongst people I have a great
deal of respect for." }

The defendant's record does not seem to resolve this
debate. Rather, from it, we, like the trial judge, learn that
the long term effects of marijuana are not fully known. This
is partially because studies have been limited. For example,
the Food and Drug Administration prohibits the use of
women subjects. Thus, it will be at least a generation before
fetal effects may be fully explored. There has been little
study of the effects on children.

The trial judge ruled that in light of present uncertainty
with respect to the effects of marijuana, the legislature
could classify marijuana as a drug with potential for abuse.
He concluded that the defendant had not sustained his

-

Apr. 1980 STATE v. SMITH , 335
93 Wn.2d 329

burden of proving the act unconstitutional. We are con-
vinced the trial judge carefully, correctly held that the bur-
den of proof was not met.

While defendants do not contend that they have a con-
stitutional right to possess marijuana, they urge that we
independently review the record and their arguments. See
State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978); and
State v. Byers, 85 Wn.2d 783, 539 P.2d 833 (1975). We have
reviewed that record, but we are not permitted to ignore or
question the credibility of the testimony of the State's wit-
nesses or disregard the unresolved debate regarding
marijuana's effects, as the defendants would have us do.
With this in mind, we now turn to the constitutional chal-
lenges.

I

Defendants challenge the constitutionality of RCW
69.50.401(a) and (c) on equal protection grounds.’ They
assert that prohibition of marijuana bears no fair and sub-
stantial relation to a legitimate state interest.

At the outset of any equal protection analysis it is neces-
sary to define the standard of review against which to test
the challenged legislation. In this case, the designation of
the appropriate test is important since defendants’ argu-
ment is that marijuana prohibition must bear a fair and
substantial relation to a legitimate state objective.

[1] Two tests are used to judicially measure classifica-
tions alleged to violate equal protection: the strict scrutiny
test and the rational relation test. Nielsen v. Washington

'*(a) Except as authorized by this chapter, it is unlawful for any person to
manufacture, deliver, of possess with intent to manufacture or deliver, a con-
trolled substance.* RCW 69.50.401(a).

*(c) It is unlawful for any person to possess a controlled substance unless the
substance was obtained directly from, or pursuant to, a valid prescription or order
of a practitioner while acting in the course of his professional practice, or except
as otherwise authorized by this chapter. Any person who violates this subsection
is guilty of a crime, and upon conviction may be imprisoned for not more than five
years, fined not more than ten thousand dollars, or both, except as provided for in
subsection (d) of this section." RCW 69.50.401(c) (now RCW 69.50.401(d)).

336 ; STATE v. SMITH Apr. 1980
93 Wn.2d 329

State Bar Ass'n, 90 Wn.2d 818, 585 P.2d 1191 (1978). The
former is applied whenever a legislative classification
involves a fundamental right or creates a suspect classifica-
tion. Nielsen v. Washington State Bar Ass'n, supra;
Graham v. Richardson, 403 U.S. 365, 371-72, 29 L. Ed. 2d
534, 91 S. Ct. 1848 (1971).

The latter, the rational relation test, despite contrary
dicta appearing from time to time in our cases, is used
whenever legislation does not infringe upon fundamental
rights or create a suspect classification.’ Brewer v. Cope-
land, 86 Wn.2d 58, 69 n.8, 542 P.2d 445 (1975); see State v.
Laitinen, 77 Wn.2d 130, 459 P.2d 789 (1969), and State v.
Ruzicka, 89 Wn.2d 217, 570 P.2d 1208 (1977).

The statutory prohibition in this case neither creates a
suspect classification nor, as defendants readily admit, does
it involve a fundamental right. Thus, in considering this
equal protection challenge, we will sustain the challenged
classification if it is rationally related to a legitimate gov-
ernmental objective. And, in looking for a rational relation,
we may assume the existence of any necessary state of facts
which we can reasonably conceive. State v. Ruzicka, supra;
Brewer v. Copeland, supra; Aetna Life Ins. Co. v. Wash-
ington Life & Disability Ins. Guar. Ass'n, 83 Wn.2d 523,

2Much if not all of defendants’ equal protection argument is premised on the
faulty assumption that the relationship shown must be more than a mere rational
relationship. They consistently argue the statute bears no fair and substantial
relation to governmental objectives. These arguments have no merit since, as we
have noted, the relationship need only be rational. We have never adopted and
used a higher standard in the absence of a suspect class or fundamental right.

In State v. Martinez, 85 Wn.2d 671, 680, 538 P.2d 521 (1975), the court inval-
idated a criminal prohibition on due process vagueness grounds. Thereafter, in
dicta, the court suggested that in cases where a penal statute involving possible
incarceration was challenged as violative of equal protection, invigorated scrutiny
should be applied. See State v. Martinez, supra at 682. The essence of ‘invigo-
rated” scrutiny is that a classification must rest upon some difference that has a
fair and substantial relation to the legislation. We have not, contrary to defend-
ants’ suggestion, adopted this standard. To the extent, however, that Martinez,
Houser v. State, 85 Wn.2d 803, 540 P.2d 412 (1975), and Standow v. Spokane, 88
Wn.2d 624, 564 P.2d 1145 (1977) contain dicta to the contrary, they are expressly
overruled.

a

Apr. 1980 STATE v. SMITH 337
93 Wn.2d 329

520 P.2d 162 (1974). In order to defeat the legislation, the
defendant must show, beyond a reasonable doubt, that no
state of facts exists or can be conceived sufficient to justify
the challenged classification, or that the facts have so far
changed as to render the classification arbitrary aud obso-
lete. Brewer v. Copeland, supra, State v. Ruzicka, supra.

In an effort to meet this burden, the defendant Smith
compiled a substantial record. If the defendants’ view of
the facts is correct, marijuana is not as harmful as the leg-
islature believes, and therefore the legislation was perhaps
ill advised. But a challenge, however meritorious, which is
directed to the wisdom of the statute will not justify a court
in finding it unconstitutional. Washington State School
Directors Ass'n v. Department of’ Labor & Indus., 82
Wn.2d 367, 378, 510 P.2d 818 (1973). The legislature repre-
sents the people when it determines that a law is necessary,
wise, or desirable, and the court is not empowered to sub-
stitute its judgment for that of the legislature.

The record also tends to show that public opinion
regarding use of marijuana has vacillated and shifted over
the years. But a shift in public opinion is not a basis for
invalidations of law. State v. Grabinski, 33 Wn.2d 603, 206
P.2d 1022 (1949).

[2] There can be no question of the authority of the
State, in the exercise of its police power, to regulate the
administration, sale, prescription and use of dangerous and
habit-forming drugs. The right to exercise this power is so
manifest in the interest of the public health and welfare,
that it is too firmly established to be called in question.
Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S.
Ct. 1417 (1962). : :

The Supreme Court said there that the legislature may
impose criminal sanctions upon the possession of narcotics
within its borders, and the wisdom of such, legislation would
not be open to judicial review. While marijuana may not be
a narcotic (see State v. Zornes, 78 Wn.2d 9, 475 P.2d 109
-(1970)) or habit forming, if the legislature reasonably has:

338 STATE v. SMITH Apr. 1980
93 Wn.2d 329

concluded that it is dangerous, it has a broad discretion in
prescribing penalties for its possession.

[3] Our review of the record reveals certain critical facts
which show that marijuana presents certain dangers, and
that its prohibition is reasonably related to the public
health and safety. Marijuana creates a euphoric state of
intoxication which impedes learning, incentive, efficiency,
and, importantly, motor coordination. There remains a
conflict of expert opinions regarding the seriousness of
marijuana's effects, and much has yet to be learned. From
reading this record, we cannot say that all doubts about the
safety of marijuana have been resolved in its favor.

Assuming that the legislature had before it the evidence
in this case concerning the known effects of marijuana and
the as yet unknown properties of the drug, it could reason-
ably find that marijuana creates a danger to users and
others.

Furthermore, the legislature may well have considered
more evidence than was brought before the trial court in
this case. We cannot say, therefore, that the adoption of
laws imposing criminal penalties was not reasonably indi- .
cated to protect the public welfare.

We note that the apparent dangers of marijuana use have
been recognized by other courts. Recent judicial opinions,
including Ravin v. State, 537 P.2d 494 (Alaska 1975), find
that in spite of advanced knowledge the suggested dangers
are, as yet, rationally based. See also Marcoux v. Attorney
General, _. Mass. ——, 375 N.E.2d 688 (1978), and see
Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State
v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); and see Peo-
ple v. Summit, 183 Colo. 421, 517 P.2d 850 (1974).

In legislating for health, safety and welfare, certain con-
straints upon individual freedom have traditionally been

+The United States Supreme Court recently declined to review a conviction
under Virginia law for the possession of marijuana with intent to distribute it.
Moon v. Virginia, No. 78-63 (U.S. Supreme Court, November 6, 1978). The peti-
tioner in that case urged that the classification of marijuana with hard drugs for
punishment purposes is without rational basis and therefore violates due process.

Apr. 1980 STATE v. SMITH 339
_ 93 Wn.3d 329

imposed by the State. Often, such constraints protect both
society generally and the individual personally from the
perceived harm. See, e.g., State v. Laitinen, supra
(motorcycle helmet law sustained). It is not our proper
function to substitute our judgment for that of the legisla-
ture with respect to the necessity of these constraints.‘

[4] We hold the statutory prohibitions against mari-
juana use are rationally related to the accomplishment of a
legitimate governmental objective—public health and
safety. As such, they are not violative of equal protection.
We also note in ruling on this matter that, contrary to
defendants’ suggestion, there is no constitutional require-
ment which dictates that the legislature must be held rig-
idly to a rule of regulating all or none of the evils it
perceives. :

It is enough that the present statute strikes at the evil

where it is felt and reaches the class of cases where it
_° most frequently occurs.

Silver v. Silver, 280 U.S. 117, 124, 74 L. Ed. 221, 50 S. Ct.
57, 65 A.L.R. 939 (1929); see Aetna Life Ins.-Co. v. Wash-
ington Life & Disability Ins. Guar. Ass'n, supra. Ravin v.
State, supra, and State v. Kells, supra.

II -

Next, the defendant Smith raises a contention that his
conviction is barred under the eighth amendment to the
United States Constitution and Const. art. 1, § 14, both of
which forbid the imposition of cruel punishment, the fed-
eral constitution also forbidding "unusual" punishment.°

‘An annotation in 50 A.L.R.3d 1164, 1177 n.18 (1973) reveals that the major-
ity of courts which have entertained equai protection challenges on grounds that
marijuana is not a narcotic drug have sustained the challenged laws. After our
decision in State v. Laitinen, 77 Wn.2d 130, 459 P.2d 789 (1969), the legislature in
response to substantial public pressure amended the iaw, deleting the helmet
requirement, thus illustrating the efficacy of this principle. Laws of 1977, lst Ex.
Sess., ch. 355, § 55, p. 1598.

*We have in the past accorded these two constitutional standards essentially
identical treatment. See, e.g., State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968);

*%

340 STATE v. SMITH Apr. 1980
93 Wn.2d 329

While this provision is thought to have been designed
primarily to prohibit torture and other forms of physical
crueity, as well as the imposition of sentences unauthorized
by law, it was held in Weems v. United States, 217 U.S.
349, 54 L. Ed. 793, 30 S. Ct. 544 (1910), that it also prohib-
its legislation which mandates a punishment which is
grossly excessive. In that case, the petitioner had been con-
victed under a statute of the Philippines which provided a
minimum sentence of 12 years for the falsifying of a public
record. Also attached to the sentence were a number of
onerous “accessories,” including the performance of hard
and "painful" labor throughout the term, the wearing of a
chain at the ankle and wrist; no assistance from friend or
relative, no marital authority or parental rights or rights of
property, no participation in family council; and after a
term in prison, constant surveillance by the criminal mag-
istrate. These "accessories" the court found excessive when
inflicted upon one who had committed an offense which
might well have harmed no one. |

The two dissenters in that case, one of whom was Justice
Holmes, did not believe that the constitutional provision
was intended to affect the legislative power to determine
and apportion punishment, so long as forbidden bodily
punishments were not imposed. Nevertheless, the Court
has adhered to the majority's interpretation in the ensuing
years. Justice White said, in his concurring opinion in Fur-
man v. Georgia, 408 U.S. 238, 313-14, 33 L. Ed. 2d 346, 92
S. Ct. 2726 (1972):

Judicial review, by definition, often involves a conflict
between judicial and legislative judgment as to what the
Constitution means or requires. In this respect; Eighth
Amendment cases come to us in no different posture. It
seems conceded by all that the Amendment imposes

some obligations on the judiciary to judge the constitu-
tionality of punishment and that there are punishments

and Woods v. Burton, 8 Wn. App. 13, 503 P.2d 1079 (1972), review denied, 81
Wn.2d 1010 (1973).

Apr. 1980 STATE v. SMITH 34]
93 Wn.2d 329

that the Amendment would bar whether legislatively

approved or not.

[5] In Gregg v. Georgia, 428 U.S. 153, 175, 49 L. Ed. 2d
859, 96 S. Ct. 2909 (1976), the following, from the concur-
ring opinion of Frankfurter, J., in Dennis v. United States,
341 U.S. 494, 525, 95 L. Ed. 1137, 71 S. Ct. 857 (1951), was
quoted with approval:

"Courts are not representative bodies. They are not
designed to be a good reflex of a democratic society.
Their judgment is best informed, and therefore most
divasttanis within narrow limits. Their essential qual-
ity is detachment, founded on independence. History
teaches that the independence of the judiciary is jeop-
ardized when courts become embroiled in the passions
of the day and assume primary responsibility in choos-
ing between competing political, economic and social
pressures."

The court said:

Therefore, in assessing a punishment selected by a
democratically elected legislature against the cons itu-
tional measure, we presume its validity. We may not
require the legislature to select the least severe penalty
possible so long as the penalty selected is not cruelly
inhumane or disproportionate to the crime involved. And
a heavy burden rests on those who would attack the
judgment of the representatives of the people.

‘In ascertaining contemporary standards, the court said,
the legislative judgment weighs heavily, because the legisla-
ture, rather than the courts, is constituted to respond to the
will and consequently the moral values of the people,
pointing out that the specifications of punishment are
peculiarly questions of legislative policy.

The court said that it could not invalidate a category of
penalties because it deemed less severe penalties adequate
to serve the ends of penology.

The court there upheld a death sentence for armed rob-
bery and murder. On the other hand, in Coker v. Georgia,
433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977), it held.
invalid a death sentence which was imposed, pursuant to |

342 STATE v. SMITH . Apr. 1980
93 Wn.2d 329

statutory authority, for commission of the crime of rape
under aggravating circumstances.

Here, the defendant Smith was given a deferred sentence
of 5 years. He was placed on probation for a period of 3
years. He does not claim that this sentence constituted
cruel and unusual punishment, and indeed there is no case
which has even suggested that a deferred sentence or pro-
bation could fall within the constitutional prohibition.
Rather, his argument is that the statute makes his crime a
felony and that such designation is unwarranted by the
seriousness of his offense. The statute does not expressly
designate the offense a felony, but rather calls it a "crime."
The punishment prescribed is provided in RCW 9A.20.020
for class "C* felonies, and this offense should be regarded -
as such. Even so, we are shown no authority for the propo-
sition that classification of a person's offense, or the dis-
abilities attached to that classification can, without more,
constitute cruel and unusual punishment.

A similar theory was advanced in Commonwealth v. Leis,
355 Mass. 189, 243 N.E.2d 898 (1969), where persons
charged with possession of marijuana challenged the con-
stitutionality of their indictments. The statute under con-
sideration there, like our statute, provided no minimum
‘penalty. Since the defendants had not been tried, it was not
yet determined whether they would be required to serve
any sentence or pay any fine. For this reason, the Massa-
chusetts court held that a challenge to the statute upon
Eighth Amendment grounds was totally without merit.

In State v. Fairbanks, 25 Wn.2d 686, 171 P.2d 845
(1946), where the appellant had been convicted of taking
indecent liberties with a female child and sentenced to a
term of not more than 20 years, we held that a claim of
cruel and unusual punishment could not be considered
until his minimum term had been set by the Board of
Prison Terms and Paroles. Implicit in all the cases which
have come to our attention, with the exception of Robinson
v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417

Apr. 1980 STATE v. SMITH 343
93 Wn.2d 329

(1962),° is an acknowledgment that, before these constitu-
tional provisions can be invoked, the defendant must show
that the punishment which he suffers by reason of the sen-
tence imposed is cruel and unusual.

Smith calls our attention to the fact that a number of
states have not seen fit to designate as a felony the offense
of possession of 40 grams of marijuana. There are others
which have done so. See National Governors’ Conference, 3
Maruisuana: A Study of State Policies and Penalties (1977)
(hereafter State Policies). Tixis study indicates that simple
marijuana possession is always punished as a felony in two
jurisdictions, never punished as a felony in three, and one
state, Arizona, leaves the decision whether to treat posses- |
sion as a felony to the court's discretion.

Of the remaining 48 jurisdictions, 24 have specified an
- amount above which possession will always be considered

a felony; in the other 24, the distinction still depends
soll on the intent of the possessor.
(Italics ours.) State Policies, supra at 90.

The report on state marijuana policies further indicates
there is little consensus regarding the amount required to
elevate possession to felony status. Florida uses 5 grams;
Hawaii:uses 1 kilogram. The most popular elevation point
is 1 ounce (28 grams). State Policies, supra at 90, 93. With
regard to another factor, maximum imprisonment, it
appears the laws also lack uniformity. However, a maxi-
mum of 5 years' imprisonment is decreed for the least seri-
ous felony in at least eight jurisdictions (including
Washington) while at least five impose a maximum of less
than 5 years and at least five set the maximum at more
than 5 years. State Policies, supra at 95.

®In that case, the statute in question had made it a criminal offense to have
the status of drug addict. The court likened this to punishment for having a dis-
ease and said that such a punishment would universally be regarded as cruel and
inhuman. While the minimum punishment prescribed was only 90 days in prison,
the court said any punishment would be cruel and unusual, just as it would for
the ‘crime’ of having a common cold. There is no contention here that marijuana
smoking is a status, cognizable under the Robinson doctrine, or that any punish-
ment at all would be cruel and unusual. :

|.

344 STATE v. SMITH Apr. 1980
93 Wn.2d 329

Washington's statute makes possession of over 40 grams
of marijuana or delivery of any amount punishable by a
nonmandatory maximum of 5 years’ imprisonment. When
we set these provisions alongside nationwide practices, it is
evident that the statutes of this state do not conflict with
current punishment standards. Moreover, Washington is
among the states which have added statutory provisions for
the expungement or sealing of the state arrest records of
persons who are not convicted. RCW 43.43.730(1); State
Policies, supra at 108. One who. receives probation, as
Smith did here, may, upon compliance with the conditions
of his probation, have the information or indictment dis-
missed. RCW 9.95.240.

Under any objective test, the punishment prescribed for
possession of 40 grams or more of marijuana is not offensive
to current societal values. Likewise, historical attitudes do
not reflect an abhorrence of the penalties prescribed. Vir-
tually every state remains committed to a policy of dis-
couraging marijuana use. Federal law, applicable even in
states where decriminalization has been achieved, pro-
scribes its possession. 21 U.S.C. § 844(a) (1970). Histori-
cally, Washington's citizens who support liberal marijuana °
laws have consistently failed to gain broad-based citizen
support for marijuana legalization or decriminalization ini-
tiatives. Evidently a substantial number of citizens are
content with the existing laws and are not shocked by the
penalty.

[6] We cannot say that these citizens, as well as the leg-
islature, are wrong and that the punishment for marijuana
possession is grossly disproportionate to the offense. A
punishment is grossly disproportionate only if the conduct
should never be proscribed, see, e.g., Robinson uv.
California, supra,’ or if the punishment is clearly arbitrary

"In Robinson v. California, supra,’a state attempted to punish a person for his
status as a drug addict. Possession of a drug is not a status. Also, defendants

admit marijuana possession, at least in some circumstances, may be proknnen,

thus, Robinson's tes: is inapplicable.

Apr. 1980 STATE v. SMITH 345
93 Wn.2d 329

and shocking to the sense of justice. Kasper v. Brittain, 245
F.2d 92 (6th Cir. 1957), cert. denied, 355 U.S. 834, 2 L. Ed.
29d 46, 78 S. Ct. 54 (1957); Louisiana Affiliate of Nat'l
Organization for the Reform of Marijuana Laws uv. Guste,
380 F. Supp. 404 (E.D. La. 1974), affd, 511 F.2d 1400 (5th
Cir. 1975), cert. denied, 423 U.S. 867, 46 L. Ed. 2d 96, 96 S.
Ct. 129 (1975). |

{7] In Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630,
78 S. Ct. 590 (1958), the Supreme Court held that
denationalization for wartime desertion was shocking and
violative of this standard because it placed the individual
totally at the sufferance of the country in which he finds
himself. In State v. Gitchel, 5 Wn. App. 93, 486 P.2d 328
(1971), a punishment which required a convicted person to
absent himself permanently from the state was held exces-
sive. But no appellate courts, insofar we we have been
shown, have been persuaded that a punishment of up to 5
years in prison and/or a fine for marijuana possession is
shocking to the sense of justice and totally arbitrary.” Nor
has any held that conviction of a felony, without regard to
the punishment imposed, violates these constitutional pro-
visions.

Considering all the factors that have a bearing on the
question, then, we conclude that Smith's punishment, a
deferred sentence of 5 years and probation of 3 years, was
not grossly disproportionate to the offense.

Accordingly, we hold that the defendant Smith was not
subject to cruel and unusual punishment for his violation of
RCW 69.50.401(c).

III
Defendants also contend RCW 69.50.401(a) and (c) are
unconstitutional as applied to possession of marijuana for
personal use in one's own home. They argue enforcement of
these statutes under the above circumstances invades a

®rhe theory was rejected in Louisiana Affiliates of Nat’! Organization for the,
‘Reform of Marijuana Laws v. Guste, supra.

346 STATE v. SMITH Apr. 1980
93 Wn.2d 329

right to privacy, and that this invasion is not justified when
the prohibited activity is relatively harmless.

[8] This contention was raised before the Court of
Appeals, Division Two, in State v. Anderson, 16 Wn. App.
553, 558 P.2d 307 (1976). Speaking through Pearson, J.,
that court delivered an opinion upon which we do not
believe we can make substantial improvement. We there-
fore adopt it in pertinent part, with minor modifications, as
our own, and set it forth herewith:

[The defendants urge] this court to hold, first, that
there is a constitutional right to privacy in the home
encompassing the possession and noncommercial delivery
of marijuana, and second, if such a right exists, that the
State does not.have the compelling state interest neces-
sary to justify regulation in this area. We decline to
adopt the position that the right of privacy extends to
the possession or delivery of marijuana.

hile there is no "right of privacy" found in any spe-
cific guaranty of the United States Constitution, the
United States Supreme Court has recognized constitu-
tional "zones of privacy” which limit governmental
ower. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96
. Ct. 1155 (1976). Only personal rights that can be
deemed "fundamental" or "implicit in the concept of
ordered liberty" are included in this guaranty of personal
rivacy. Roe v. VW/ade, 410 U.S. 113, 35 L. Ed. 2d 147, 93
. Ct. 705 (1973). If the possession and noncommercial
delivery of marijuana come within a constitutional "zone
of privacy” then there must be a compelling state inter-
est to justify regulation in this area. Roe v. Wade, supra;
cf. Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975).

The overwhelming majority of jurisdictions which have
considered the right of privacy and the possession or use
of marijuana are in accord. No constitutional right of
privacy exists which encompasses the right to possess
and use marijuana. Kreisher v. State, 319 A.2d 31 (Del.
1974). The constitutional right of privacy does not pre-
vent the legislature from proscribing the possession of
marijuana for private use. State v. Renfro, _._ Hawaii —_
[56 Haw. 501], 542 P.2d 366 (1975). Michigan laws which
prohibit the possession, use and sale of marijuana do not.
violate the constitutional right to privacy. People uv.
Alexander, 56 Mich. App. 400, 223 N.W.2d 750 (1974).

Apr. 1980 STATE v. SMITH 347
93 Wn.2d 329

The right to smoke marijuana is not fundamental to the
American scheme of justice, it is not necessary to ordered
liberty, and it is not within a zone of privacy. Common-
wealth v. Leis, 355 Mass. 189, 243 NE 2d 898 (1969).
Possession of marijuana is not a fundamental right guar-
anteed by the United States Constitution. State v.
Anonymous, 32 Conn. Supp. 324, 355 A.2d 729 (1976).

Only one jurisdiction has recognized a right to privacy
in the home which encompasses the use oa possession of
marijuana. The Alaska Supreme Court in Ravin v. State,
537 P.2d 494 (Alas. 1975) held that no adequate justifi-
cation exists for the state's intrusion into the citizens’
right of privacy by its prohibition of the possession of
marijuana by adults for personal consumption in the
home. There are at least three grounds for refusing to
apply the Alaska ruling in this case.

First, the Ravin decision is substantially based upon
the strong right to privacy provision of the Alaska
Constitution.' The Alaska court evidenced the impor-
tance of this provision to its ruling when it concluded
that "citizens of the State of Alaska have a basic right to
privacy in their homes under Alaska's constitution. This
right to privacy would encompass the possession and
ingestion of substances such as marijuana in a purely
personal, non-commercial context in the home .. ."
Ravin v. State, supra at 504. Washington does not have
an equivalent privacy provision in its constitution, nor

- does case law establish such a strong right to privacy.

A second distinction is that the Alaska court rejected
the fundamental right-compelling state interest *<.., and
used a special test to determine the constitutionality of
the statute prohibiting the possession of marijuana. The
court preeretl that if it was employing the fundamental
right-compelling state interest test "we would hold that
there is no fundamental right, either’'under the Alaska or
federal constitutions, either to possess or ingest mari-
juana." Ravin v. State, supra at 502. Washington courts

ave utilized the fundamental right-compelling state
interest test in the past, see Darrin v. Gould, supra, and
we will not adopt a special test at this time. °

Finally, the basis for the Ravin decision was the exten-
sion of the right of privacy in the home to the possession
of marijuana. A leading case on the right of privacy in
the home, Stanley v. Georgia, 394 U.S. 557, 22 L. Ed. 2d

348 STATE v. SMITH Apr. 1980
93 Wn.2d 329

542, 89 S. Ct. 1243 (1969), involved the possession of ©
obscene material for an adult's personal use in the home.
The United States Supreme Court held that possession
of the material was protected in the home because the
strong and fundamental First Amendment right to
receive information was involved. The Supreme Court
noted that its ruling did not infringe upon the power of
the state to prohibit the possession of narcotics in the
home. Other cases discussing the right to privacy in the
home also limit that right to activities involving impor-
tant or fundamental rights.’ Possession of marijuana is
not a fundamental right, State v. Anonymous, supra, and
it is not tantamount to the exercise of a First Amend-
ment right. Additionally, no authority or logic supports
the contention that a right to deliver marijuana is [any]
more fundamental than the right to possess it. Therefore,
we refuse to extend the right of privacy in the home to
either the possession or delivery of marijuana.
The Ravin decision is not persuasive and we adopt the
ees. of those jurisdictions holding that statutes simi-
to RCW 69.50.401(a) and (d) do not unconstitution-
ally interfere with any right to privacy.

‘Article 1, § 22 of the Alaska Constitution provides, in
part: "The right of the people to privacy is recognized .-
and shall not te infringed."

*See’ generally, Parts Adult Theatre I v. Slaton, 413
U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973); United
States v. Orito, 413 U.S. 139, 37 L. Ed. 2d 513, 93 S. Ct.
2674 (1973). Cf. State v. Elliott, 88 N.M. 187, 539 P.2d
207 (1975).

The trial courts and the Court of Appeals correctly
refused to hold the statutes unconstitutional.

IV

Defendant Anderson raises an additional assignment of
error peculiar to his case. He asserts the circumstances of
his arrest warrant a finding of police misconduct or, at a
_minimum, an instruction informing jurors that police activ-
ity surrounding an arrest. must be in good faith and not
violative of public policy.

Prior to defendant Anderson's arrest, he was contacted at
home by a police undercover agent. The agent's plan was to

Apr. 1980 STATE v.SMITH * 349
93 Wn.2d 329

pose as a drug dealer attempting to deliver two 1-pound
packages of marijuana to some other party. The agent sub-
sequently executed this plan and contacted Anderson.
Anderson, upon seeing the marijuana, commented that it
looked like "good stuff". The agent replied it was indeed
quality marijuana. When Anderson further inquired
whether the agent would be willing to sell the marijuana,
the agent indicated he would not, because it was previously
committed to another person. After this, Anderson agreed
that the agent could come back at a later date and they
could work out an arrangement for the sale of marijuana.

The agent returned on two later occasions, but neither
time was opportune for discussing business. On a third
occasion, however, the agent and Anderson discussed the
drug price, and Anderson indicated his desire was to pur-
chase between 1 and 3 pounds of marijuana. After this
manifestation of intent, the agent asked Anderson if he had
any marijuana in the house. When the agent received an
affirmative reply, he suggested the two of them ought to
smoke some in order to get better acquainted. Anderson
declined to smoke, but gave the agent a small quantity of
marijuana and invited him to take some with him. There is
conflicting evidence as to whether the agent ever smoked
this marijuana, but it is undisputed that Anderson pos-
sessed marijuana and also delivered the substance to the
agent. ;

Sometime later a search warrant for Anderson's home
was obtained based upon the presence of marijuana in that
location.- Upon execution of the warrant, marijuana in a
quantity of less than 40 grams was confiscated, and Ander-
son was charged with the offenses of delivery and posses-
sion of marijuana.

It is Anderson's contention that, at trial, the court erred
by refusing to give this proposed jury instruction:

You are instructed that a criminal defendant invokin
the defense of entrapment must show that the crimin

design originated in the mind of the police officer and not
with the accused, and that the accused was lured or

350 STATE v. SMITH Apr. 1980
93 Wn.2d 329

induced to commit a crime he had not intended to com-
mit. If the crime originated in the mind of the accused,
an officer may afford the accused an opportunity to com-
mit the crime, and, when acting in good faith and not
acting against public policy, make use of deception.

The trial court judge gave instruction No. 8, which reads: °

You are instructed that Entrapment is a defense to the
charge against the defendant, and if established entitles
the defendant to an acquittal.

Entrapment occurs where the criminal design origi-
nates in the mind of the police officer or informer and
not the accused, and the accused is lured or induced into
committing a crime he had no intention of committing.

The mere use of a decoy or informer to present an
individual with an opportunity to commit a crime does
not in itself constitute entrapment. |
[9] The majority view in entrapment cases treats police

conduct as secondary unless the conduct serves to entrap
an unwary defendant into committing a crime he had no
intention of committing. United States v. Russell, 411 U.S.
423, 36 L. Ed. 2d 366, 93 S. Ct, 1637 (1973); State v.. Gray,
69 Wn.2d 432, 418 P.2d 725 (1966); State v. Emerson, 10
Wn. App. 235, 517 P.2d 245 (1973). It has never been sup-
posed that the jury mst be instructed to weigh public pol-_
icy or good faith in reaching its decision on whether the
defense of entrapment has been made out. Rather, under
Washington law its deliberations are to be directed to the
question of whether the criminal design originated in the
mind of law enforcement officials who lured or induced the
defendant to commit a crime which he otherwise had not
intended to commit.

The jury instruction given by the court correctly reflects
this concept and the law regarding the defense of entrap-
ment. Failure to give the proposed instruction was not
error. ot

Defendant further argues that as a matter of law the
police conduct was contrary to public policy.

[10] In affording a suspect with an opportunity to vio-
late the Jaw, police may use some subterfuge. For example,

Apr. 1980 STATE v. SMITH 351
93 Wn.2d 329

an officer may pose as a drug dealer, fence, or prostitute.
State v. Gray, supra. In United States v. Russell, supra,
the defendant argued that the government's agent who
supplied a scarce ingredient had become so involved in the -
criminal activity that any prosecution for manufacturing ar
illegal drug violated fundamental principles of due process.
The United States Supreme Court, noting the necessity of
the agent's illicit participation, stated that the conduct was
not so shocking as to violate fundamental fairness.

The conduct of the officer in Anderson's case, which, dis-
tasteful as all subterfuge is, can hardly be said to have been
so shocking as to violate fundamental fairness.

Vv

Defendants Redwine also raise additional assignments of
error peculiar to their case. They contend the search war-
rant for their home is constitutionally infirm, that the
police violated the knock and notice statute, and that the
sentences were unfair. :

The defendants Redwine urge that the trial court erred
in admitting in evidence the fruits of a search conducted
pursuant to a warrant issued by a magistrate. The warrant
authorized a search of the defendants’ home and of the
fenced yard behind it, in which an officer had observed
marijuana plants growing. He testified before the magis-
trate that there was "no question” but what the plants were
marijuana plants. The officer's inspection of the yard had
been made in response to a complaint that such plants were
growing in it. The Redwines contend that the officer's
opinion of the identity of the plant was not sufficient to
support a finding. of probable cause to search. They suggest
that a chemical test should have been made. Further, they
maintain that information which the officer received from
an informant was not shown to be reliable.

We find no merit in these contentions. The officer satis-
fied the magistrate that he had sufficient familiarity with
marijuana plants to recognize one when he stood within 10
feet of it, as he did in this case. There is no suggestion that

2:

ase
_

PT

352 STATE v. SMITH Apr. 1980
7 93 Wn.2d 329

a marijuana plant is not distinctive enough to be recognized
as such. As for the reliability of the officer's informant, that
is rendered immaterial by the fact that the officer himself
observed the plants growing.

[11] Federal and state constitutional requirements for
search warrants are met when the issuing magistrate has,
considering all the facts and circumstances sworn to by the
police officer seeking the warrant, good reason to believe
that criminal activity has occurred. State v. Patterson, 83
Wn.2d 49, 515 P.2d 496 (1973). As we said there, if the affi-
davit or testimony reveals nothing more than a declaration
of suspicion and belief, it is legally insufficient; but if the
underlying facts or circumstances are stated, as they were
here, and the informant is reliable, and if the alleged facts
show that a crime has probably been committed, the mag-
istrate has before him evidence sufficient to justify the
issuance of a warrant.

Where, as here, the officer himself has observed the
incriminating evidence, the element of reliability is estab-
lished, assuming the magistrate has confidence in the
integrity of the officer.

The issuance of a search warrant is a matter of judicial '
discretion, and this court reviews its exercise only for abuse.

There can be no question but that the magistrate was
justified in accepting the officer's opinion that what he had
seen growing in the yard was marijuana. The testimony of’
the informant was unnecessary to establish this fact. This
showing was sufficient to obtain a warrant to search the
yard. Whether it also justified a search of the house we
need not decide. The evidence shows that-there were 178
plants growing in the yard. We can take judicial notice that
this number of plants would produce more than 40 grams
of usable drugs. Thus the State's prima facie case was
established by the evidence of the number of plants grow-
ing in the yard, which were admittedly in the possession of
the defendants Redwine. Thus, even though the admission _
of the fruits of the search of the house was error, which we

' do not decide, it was harmless error.

Apr. 1980 . STATE v. SMITH 353
93 Wn.2d 329

For this reason also, we need not consider a further con-
tention that the search of the unoccupied house was rend-
ered invalid because one of the officers involved failed to
knock before entering. :;

Finally, the Redwines contend their sentences lacked an
appearance of fairness and were in fact unfair because the
sentences were inspired by a suspicion the Redwines were
dealing in drugs.

[12] Appellate courts may review a trial court's imposi-
tion of sentence for abuse of discretion. Discretion is
abused only when it can be said no reasonable person
would adopt the view which was adopted by the trial court.
State v. Derefield, 5 Wn. App. 798, 491 P.2d 694 (1971).
Both Redwines were given deferred 5-year sentences to
state correctional institutions. David Redwine was placed
on probation for 3 years and was sentenced to 365 days in
jail and fined $500. Loralyn Redwine was placed on proba-
tion for 2 years and sentenced to 90 days in jail. In both
cases, the court reserved the right to suspend a portion of
the jail sentence and indicated that it would do so. They
state that the judge customarily did not impose a sentence
of more than 60 days for possession of marijuana. It is con-
tended that the judge was influenced by his belief that the
Redwines were dealing in drugs, which it is alleged was not
the case. The judge's remarks on sentencing indicate that
he was concerned with David Redwine's prior juvenile
record, as well as with the amount of marijuana being
grown by the Redwines. He imposed jail sentences because
he believed that a fine alone would not deter further viola-
tions. 7

We cannot say that, having this consideration in mind,
the trial judge abused his discretion in prescribing the
sentences.

The convictions are affirmed.

-StarFORD, WRIGHT, BRACHTENBACH, and Horow!Tz, JJ.,
concur. . ; ; Vs

354 ‘ STATE v. SMITH Apr. 1980
93 Wn.2d 329

Urrer, C.J. (concurring in part; dissenting in part)—I
concur with the majority in affirming Anderson's conviction
for delivery of a controlled substance in violation of RCW
69.50.401(a). Anderson's constitutional challenge to the
conviction is limited to a claim of privacy in the perfor-
mance of the unlawful conduct. Whatever may be the pri-
vacy claim of individuals in possession of marijuana for
personal use, this claim does not protect those who would
manufacture or deliver the substance.

I do agree with Justice Dolliver that the convictions of
Smith and the Redwines for possession of marijuana under
the terms of RCW 69.50.401(c) (now RCW 69.50.401(d))
violate federal and state prohibitions on cruel and unusual
punishments.

I do not reach the equal protection and privacy claims of
those convicted for possession of marijuana, nor the alter-
native constitutional claims regarding delivery which are
not before us.

Doutuiver, J. (concurring in part; dissenting in part)—
Marijuana is an intoxicant. It is one of three major recrea-
tional drugs used in the United States; the other two are .
tobacco and alcohol. It is smoked regularly by nearly 15
million Americans; probably in excess of 30 million citizens
have tried it. National Institute on Drug Abuse, Secretary
of Health, Education and Welfare, 6th Annual Report to
United States Congress, Marihuana and Health (1976). In
every state there is some penalty for the possession of mar-
ijuana. 3 National Governors Conference Research and
Case Studies, Marijuana: A Study of State Policies and
Penalties 99-104 (1977). It is probable "no other 'crime' is
prosecuted so rarely in relation to the number of times it is
committed, and no other conduct is so consistently rejected
as being ‘criminal’ by so many people." M. Soler, Of Can-
nabis and the Courts: A Critical Examination of .Constitu- ~
tional Challenges to Statutory Marijuana Prohibitions, 6
Conn. L. Rev. 601, 686 (1974). In Washington, a person who
possesses more than 40 grams (28 grams equals 1 ounce) of

Apr. 1980 STATE v. SMITH 355
93 Wn.2d 329

marijuana may be arrested and convicted of a felony with a
maximum sentence of 5 years in a state prison, a fine of up
to $10,000, or both (RCW 69.50.401(c)) (now RCW 69.50-
.401(d)), and will lose certain rights. See, e.g., RCW 29.01-
.080, RCW 42.04.020, RCW 4.44.160 and Const. art. 6, § 3.
See generally W. Grant, The Collateral Consequences of a
Criminal Conviction, 23 Vand. L. Rev. 929 (1970).

I agree with the majority that constitutional rights of
equal protection and privacy are not offended by RCW
69.50.401(a), (c). I do not, however, agree with the majority
as to the inapplicability of the eighth amendment to the
United States Constitution and Const. art. 1, § 14. I would
hold RCW 69.50.401(c) as it applies to mere possession of
marijuana to violate these constitutional provisions which
prohibit cruel and unusual punishment. I do not contend
RCW 69.50.401(a), which makes it a crime "to manufacture,
deliver, or possess with intent to manufacture or deliver, a
controlled substance", violates either the federal or state
constitutions.

While the majority recites both the history of cruel and
unusual punishment and the general view taken by the
courts for application of the constitutional restraint, it fails
to delineate fully the tests developed by courts to trigger
the application of the constitutional requirements or to
measure RCW 69.50.401(c) against those tests. :

Although legal literature and cases on the use of the
Eighth Amendment are meager, some general principles
have evolved. See, e.g., The Cruel and Unusual Punish-
"ment Clause and the Substantive Criminal Law, 79 Harv.
L. Rev. 635 (1966); Soler, supra at 676; The Eighth
Amendment, Beccaria, and the Enlightenment; An Histor-
ical Justification for the Weems v. United States Exces-
sive Punishment Doctrine, 24 Buffalo L. Rev. 783 (1975);
Marijuana Possession and the California Constitutional
. Prohibition of Cruel or Unusual Punishment, 21 U.C.L.A.
L. Rev. 1136 (1974); Coker v. Georgia, 433 U.S. 584, 53 L.
Ed. 2d 982, 97 S. Ct. 2861 (1977); People v. Lorentzen, 387
Mich. 167, 194 N.W.2d 827 (1972); In re Lynch, 8 Cal. 3d

356 STATE v. SMITH Apr. 1980
93 Wn.2d 329 ©

410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972); see generally
Length of Sentence as Violation of Constitutional Provi-
sions Prohibiting Cruel and Unusual Punishment, Annot.,
33 A.L.R.3d 335 (1970).

In Weems v. United States, 217 U.S. 349, 367, 54 L. Ed.
793, 30 S. Ct. 544 (1910), the Supreme Court stated:

[I]t is a precept of justice that punishment for crime

should be graduated and proportioned to offense.

In State v. Fairbanks, 25 Wn.2d 686, 689, 171 P.2d 845
(1946), we said:

It may be conceded that duration of imprisonment fixed
as a penalty may be so incommensurate with the gravity
of the offense committed as to be violative of this provi-
sion of the state constitution and of the kindred provi-
sion contained in the eighth amendment to the Federal
constitution.

Not only must the proportionality of the punishment to
the offense be considered, it must be considered "in the
light of contemporary human knowledge". Robinson v.
California, 370 U.S. 660, 666, 8 L. Ed. 2d 758, 82 S.Ct.
1417 (1962). See also Trop v. Dulles, 356 U.S. 86, 2 L. Ed.
2d 630, 78 S. Ct. 590 (1958). In a recent review of th
Eighth Amendment, the Supreme Court said: |

(T)he Eighth Amendment bars not only those punish- |

ments that are "barbaric" but also those that are "exces-

sive" in relation to the crime committed. Under Gre

Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S.

t. 2909 (1976)], a punishment is "excessive" and uncon-
stitutional if it (1) makes no measurable contribution to
acceptable goals of punishment and hence is nothin

more than the purposeless and needless imposition o

pain and suffering; or (2) is grossly out of proportion to

the severity of the crime. A punishment might fail the
test on either ground.
Coker v..Georgia, supra at 592. In this case, only the ques-
tion of proportionality is relevant.

The question is not whether the state can or should reg-
ulate or discourage the use of marijuana; both are clearly
within its power. Nor is the question before us the social

Apr. 1980 STATE v. SMITH | 357
93 Wn.2d 329 »

desirability of discouraging the use of marijuana. Rather, it
is whether the punishment chosen by the legislature for
violating its statutory regulations. as to the possession of
over 40 grams of marijuana is disproportionate to the
offense when tested against “evolving standards of
decency". Trop v. Dulles, supra at 101.

As to the question of cruel and unusual punishment, the
trial court concluded: :

Finally, the defense has argued that the felony statute,
in providing for a prison sentence of five years, consti-
tutes cruel and unusual punishment. Again, the authori-
ties cited by counsel do not establish that the defendant
has standing to make this argument prior to conviction
and sentence. Notwithstanding, as with the other consti-
tutional arguments raised by the defendant, the hazards
presented to society by the use of marijuana do not per-
mit this court to conclude that RCW 69.50.401(c) is not
fairly and substantially related to a legitimate legislative
purpose. /

The trial court's use of the rational relationship test may
have been appropriate for determining whether the statute
violated equal protection guaranties. It is not, however,
appropriate for determining whether the sentence imposed
under the statute is grossly disproportionate to the crime
and constituted cruel or unusual punishment. The proper
analysis to determine whether the felony classification for
conviction and the maximum 5-year sentence and $10,000
fine is excessive or overly severe is a threefold test which
appears to be generally accepted for determining if the
punishment is disproportionate to the crime and thus vio-
lative of the prohibitions against cruel and unusual punish-
ment. See Jn re Lynch, supra; In re Jones, 35 Cal. App. 3d
531, 110 Cal. Rptr. 765 (1973); Jn re Grant, 18 Cal. 3d 1,
553 P.2d 590, 132 Cal. Rptr. 430 (1976); Downey v. Perini,
518 F.2d 1288 (6th Cir. 1975), vacated and remanded on
other grounds, 423 U.S. 993, 46 L. Ed. 2d 367, 96 S. Ct. 419
(1975); State -v. Mitchell, 563 S.W.2d 18, 28 (Mo. 1978)
(Seiler, J., dissenting); 21 U.C.L.A. L. Rev., supra at 1146.

>>

358 STATE v. SMITH Apr. 1980
93 Wn.2d 329

Those tests (only the last of which is even mentioned by
the majority) are:

1. The degree of danger the offender and the subject
matter of the offense, in this case marijuana, present to
society;

2. A comparison of the punishment for possession of
marijuana with the punishment for more serious crimes and
for offenses of a similar nature; and

3. A comparison of the punishment for marijuana posses-
sion in Washington with the punishment for the same
offense in other jurisdictions.

I

I see nothing to be gained by arguing with the majority
or the trial court over the evidence as to the dangers of
marijuana nor is it necessary to do so. The views of the
plaintiffs and defendants were fully documented before the
trial court, the trial court made a thorough review of the
evidence, and its findings contained in the memorandum
decision are sufficient. The following documents were
admitted in evidence before the trial court: National Insti-
tute on Drug Abuse, United States Department of Health,
Education, and Welfare, Marijuana Research Findings:
1976 (Petersen ed. 1977); L. Grinspoon, Marijuana Recon-
sidered (2d ed. 1977); National Institute on Drug Abuse,
Secretary of Health, Education, and Welfare, 4th through
6th Annual Reports to the United States Congress, Mari-
juana and Health (1974-76); National Commission on
Marijuana and Drug Abuse, Ist Report, Marijuana: A Sig-
nal of Misunderstanding (Shafer Rep., 1972); National
Commission on Marihuana and Drug Abuse, 2d Report,
Drug Use in America: Problem in Perspective (Shafer
Rep., 1973); Consumers Union Report, Licit & Illicit Drugs —
(Brecher ed. 1972); Report. of the Commission of Inquiry
into the Non-Medical Use of Drugs, Cannabis (Canada
1972); L. Miller, Marijuana Effects on Human Behavior
(1974); Hearings Before the Subcommittee to Investigate
the Administration of the Internal Security Act and other

Apr. 1980 STATE v. SMITH 359
93 Wn.2d 329

Internal Security Laws of the Senate Committee on the
Judiciary, 93d Cong., 2d Sess., Maritjuana-Hashish Epi-
demic and Its Impact on United States Security (1975); G.
Nahas, Keep Off the Grass (1976); J. Tinklenberg, Mari-
juana and Health Hazards (1975); M. Braude and S. Szara,
1 and 2 Pharmacology of Marihuana, A Monograph of the
National Institute on Drug Abuse (1976); G. Nahas, Mari-
huana Chemistry, Biochemistry, and Cellular Effects
(1976).
In its decision, the trial court said:

It is apparent from the evidence presented by both
sides in this proceeding that marijuana has been grossly
misunderstood by many Americans of both high and low
stations in life.

Despite exhaustive research by the medical profession
and other scientists in this country and abroad in recent.
years, and observations of entire cultures of marijuana
smokers over generations around the world, there does
not appear to be a single documented case of permanent
physiological or psychological harm from this drug.
Clearly, marijuana is most notable for the psychological
"high" it produces, a form of intoxication similar in some
respects to that produced. by alcohol. It is this "euphoria"
which has encouraged in excess of 30 million people in
this country to try it, and which keeps perhaps half of
that number coming back.

The intensity of the effect of the drug is dependent
upon the quantity consumed, although it is accepted that
tolerance to the drug is developed with regular use, and
there often is a moderate seeking of higher dosage levels.
However, there is not an addictive quality, and even psy-
chological dependency is very unusual. The rare case of
—s related to withdrawal symptoms seems to occur
with only extremely heavy usage, and even then moder-
ate irritability seems to be the only apparent symptom.

The "stepping-stone" theory as a characteristic of
marijuana use simply is not true. There is no evidence

_ that marijuana leads one on to tne use of other drugs. No
cause and effect relationship exists. The fact that

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0124%3A1. Public record. Not legal advice.