Opposition — Smith v. Washington

No. 80-101

IN THE

Supreme Court of the United States

October Term 1980

James Henry Smith,

Petitioner,

Vv.

State of Washington,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF WASHINGTON

BRIEF FOR RESPONDENT IN OPPOSITION

Russ JUCKETT

Prosecuting Attorney for

Snohomish County

Snohomish County Courthouse

Everett, Washington 98201

Telephone: (206) 259-9333

ASA D. GLAZER

Deputy Prosecuting Attorney

Attorneys for Respondent.

TABLE OF CONTENTS

Page

I GO PART ions inckscccsnnsnresescisonsesncenans ii

EPR e GR Tie CAGE noe cicscccvcsseccnescocsnsssens 1

SUMMARY OF ARGUMENT ......0000.....0.0.......:::ccceeee 2

ARGUMENT

I.

II.

Il.

THE FEDERAL QUESTION PRESENTED

FOR REVIEW WAS NEITHER RAISED

POC EPRI RIESED BRI IY oon encsvecocenecennadbnsiveinnee 3

THE SEIZURE OF MARIJUANA FROM A

PRIVATE RESIDENCE PURSUANT TO A

VALID SEARCH WARRANT DOES NOT

VIOLATE THE FOURTH AMENDMENT.... 5

THE STATE OF WASHINGTON MAY

CONSTITUTIONALLY REGULATE THE

PRIVATE USE AND POSSESSION OF

DPT IE ili ci sicitcssvsdakntiuenithardbbiehsosidccsvoosoce 6

THE FEDERAL CONSTITUTIONAL

RIGHT OF PRIVACY DOES NOT

ENCOMPASS THE PRIVATE POSSESSION

OF MARIJUANA IN ONE’S HOME ................ 9

THERE IS NO CONFLICT OF

AUTHORITY ON THE FEDERAL

QUESTION PRESENTED................00:-ccccsssecee0. 14

NI lisesi icin cy degalld hveeisasininichecesebpion ealadibideaing 16

*%

TABLE OF AUTHORITIES

Table of Cases

Page

Air Pollution Variance Board v.

Western Alfalfa Corp.,416 U.S. 861 (1974).......... 7

Blincoe v. State, 231 Ga. 886,

ee I io cswmanccccdsccnvcnctiossscces 10

Cardinale v. Louisiana, 394 U.S.

RREIRES SS SSCL SE ape eo a 3

Cavaness v. State 581 P.2d 475,

(Okla. Cr. App. 1978), cert. denied,

UT ie cessive 10, 16

Crane v. Campbell, 245 U.S. 304 (1917) .................. 13

DeBacker v. Brainard, 396 U.S.

SN SRS ES ASME Sema a A 4

Gioe v. Commonwealth's Attorney, 403

F.Supp. 1199 (E.D. Va. 1975), aff'd,

a es cusscesncnes g

Harris v. McRae, 48 U.S.L.W. 4941

a a a ss wasesccsiveenee :e

Hester v. United States, 265 U.S.

Ge EME DCSE: SRR a 5

Illinois NORML v. Scott, 66 Ill.App

3d 633, 23 Ill. Dec. 303, 383

II, OPIS 5.5, Jas ics vancidedbveensenpoaparinsveceadons 10

Laird v. State, 342 So.2d

no ad cunesmnsecstcorned 10

Lo-Ji Sales, Inc. v. New York,

oe a ssenceneebenusces 6

Louisiana NORML v. Guste, 380

F.Supp. 404 (E.D. La. 1974), aff’d.,

511 F.2d 1400 (Sth Cir.), cert.

denied, 423 U.S. 867 (1975)............2.....22..---- 10, 16

ll.

Marcoux v. Attorney General, ........ Mass.

Santi Mayet & Fo ees, | ee

Marcus v. Search Warrants, 367 U.S.

FEE REE picka seceeestidaeisinedesin Sinan 6

Mugler v. Kansas, 123 U.S. 623 (1887).............-.---+- 13

NORML v. Bell, 488 F.Supp. 123

CTA TIS: RIED. cocisiieeh besten eect ices rehins 8-10, 15

NORML v. Gain, 100 Cal.App.3d 586,

BOE Cok Weis BGS. Carey ekrccics ee cticencicnncroteniens 16

Paris Adult Theatre I v. Slaton,

Poh et Ge, | | er aoe yee oni Ae | Tmenes 11

Paul v. Davis, 424 U.S. 693 (1976)...........2.....2c000ee002 11

Payton v. New York, ........ it gate , 100

Aes COT Fy at Maen GS WO Rv cvnccsstberiidenseneces 5

People v. Shepard, ........ PO ES scesenee ;

hci PRED petinnice. GMI HG: ROPE) cccececcosnsccsnccenatasen, 20

Ravin v. State, 537 P.2d 494

CI III aa ceived binds ccdihcrnidccasnsanstsscdndoiienaechadh 14-15

Roaden v. Kentucky, 413 U.S. 496 (1973)................ 6

Robinson v. California, 370 US.

Bh * SUIS oe RO Say ACTS OE RO 6

Stanford v. Texas, 379 U.S. 476 (1965).................... 6

Stanley v. Georgia, 394 U.S. 557 (1969).............. 10-11

State v. Baker, 535 P.2d 1394

CRIES TRIED Acs isdn dtceceisadedecendtlinstbiinsnnaniinieesorn 10, 15

State v. Chrisman, 364 So.2d 906

CEs. SII Aiicetiensecidcssibhelisnedesdedseenteneteey ibaa incall 10

State v. Daniel, 589 P.2d 408

FS 5 ICSE nn ee ON ae. SOMME He ee 15

State v. Giaudrone, 109 Wash.

SE Re LD CR tee tetentciectecesctnsccthainbiions 13

i

Page

State v. Kantner, 53 Hawaii 327,

493 P.2d 306 (1972), cert. denied,

EE Re) Ca a 14, 16

State v. Kells, 199 Neb. 374,

EE FO ois... .... cccccccaccocccccncccccesbacsone 10

State v. Kincaid, 98 Idaho 440,

cn... cesesncnecscunsvacscocees 10

State v. Murphy, 117 Ariz. 57,

I Eicon... cssccnccccecenseccccccsrerceses 10

State v. Smith, 93 Wn.2d 329,

I no. acnincceecccncntececscnce 2, 7-8

United States v. Drotar, 416

F.2d 914 (Sth Cir. 1969), vacated

on other grounds, 402 U.S. 939 (1971).................. 10

United States v. Ortiz, 422 US.

EES ES SS 4

Walter v. United States, 48 U.S.L.W.

EE ES |) 10

Whipple v. Martinson, 256 US.

2. § eee Te os secmepsnomenetons 6

Zander v. District Court, 591 P.2d

ec sncacsinesiinonasoasiobe 16

Zurcher v. Stanford Daily, 436

Teen ea sasibecccasacsnsonuvcs 5

Other Authorities

MARIJUANA AND HEALTH, Seventh Annual

Report to the U.S. Congress from the

Secretary of Health, Education and

i a a caiineapeoncetecs 13-14

iv.

STATEMENT OF THE CASE

On December 1, 1977, petitioner James Smith was

found guilty of possession of marijuana, in violation of

Washington law. The defendant’s prison sentence was

deferred; he was placed on probation for.three years and

fined $500.00.

The facts underlying the charge have never been con-

tested. Using marijuana seeds purchased at a local tavern,

defendant began cultivating marijuana in two greenhouses

located on his property. One of the greenhouses, 10 feet

long by 8 feet wide, was located fifty feet from defendant’s

home.

For a period of approximately two years, Mr. Smith

would smoke, on average, one or two marijuana cigarettes

per day, occasionally in the presence of his two young

children. He also provided marijuana to his wife and to

visiting friends.

Law enforcement officers eventually learned of the

marijuana garden and a warrant was issued authorizing

a search of the residence as well as outbuildings on the

property. The search warrant was executed on October

15, 1976. Marijuana was discovered during the course

of the search, seized, and subsequently admitted into

evidence during defendant’s trial. The validity of the

search warrant has never been challenged by the defense

(Brief of Appellant at 3 n. 2).

The defendant moved to dismiss the information charg-

ing him with commission of a crime on three separate

constitutional grounds: (1) violation of his right of

privacy; (2) denial of equal protection; (3) imposition of

cruel and unusual punishment (Petition at B4-B5). After

a lengthy evidentiary hearing, the trial court denied the

defense motion.

The same constitutional challenges were again raised

| 1

on appeal and also rejected by the Washington Supreme

Court. State v. Smith, 93 Wn.2d 329, 332-33, 610 P.2d

869 (1980). Although the court divided on the issue of

cruel and unusual punishment, both the majority and the

dissent concluded that the constitutional right of privacy

does not protect the use and possession of marijuana in

the home. Id. at 345-48, 355. Chief Justice Utter, con-

curring in part and dissenting in part, did not reach the

invasion of privacy claim. Jd. at 354.

Defendant does not seek review in this Court of the

equal protection and cruel and unusual punishment claims.

Although the petition is in one sense limited to the right

of privacy issue, defendant has reformulated his consti-

tutional argument in terms of an asserted Fourth Amend-

ment violation. Defendant now contends, for the first

time, that the seizure of marijuana from a home pur-

suant to a search warrant is per se unreasonable (Petition

at 23).

This contention was neither presented to nor passed

on by either of the courts below. In fact, defendant’s 95-

page opening brief to the Washington Supreme Court

contained only a passing reference to the Fourth Amend-

ment (Brief of Appellant at 33-34), which did not war-

rant inclusion in his 13-page Table of Authorities.

SUMMARY OF ARGUMENT

The question presented in this petition, asserting a

violation of the Fourth Amendment, was neither raised

nor decided in the lower state courts. Even assuming

that the issue is properly before this Court, there is no

merit in the defendant’s argument.

Having neglected to challenge the validity of the search

warrant, the defendant is restricted to the position that

any warranted search of a home for marijuana is per se

2

unreasonable. This contention is faultily premised on the

defense assumption that the State of Washington has no

legitimate governmental interest in regulating the private

use and possession of marijuana, a view which was ex-

pressly repudiated by the Washington Supreme Court.

Furthermore, the Fourth Amendment claim is particularly

inapplicable to the facts of the present case, involving

seizure of marijuana not only from the defendant’s home,

but also from a greenhouse situated 50 feet from his home.

The defendant did raise the right of privacy issue in

the courts below, though not in the context of a Fourth

Amendment claim. The Washington Supreme Court con-

cluded that the federal constitutional right of privacy does

not encompass the private possession of marijuana in the

home.

Contrary to the defendant’s assertion, there is no author-

ity in conflict with the state court’s decision on this federal

issue. Recognizing that the use and possession of mari-

juana does not implicate any specific constitutional guar-

antee and cannot be constitutionally distinguished from

the possession of other prohibited drugs, lower courts

have consistently rejected similar privacy challenges.

ARGUMENT

I,

THE FEDERAL QUESTION PRESENTED

FOR REVIEW WAS NEITHER RAISED

NOR DECIDED BELOW.

It is well-settled that this Court “will not decide federal

constitutional issues raised here for the first time on

review of state court decisions,” Cardinale v. Louisiana,

394 US. 437, 438 (1969), though there is some am-

biguity as to whether the rule is based on jurisdictional

or policy grounds.

-”

The defendant’s presentment of the issue and argument

are not straightforward. Although reference is made to

the constitutional right of privacy (Petition at 32, 35),

which was clearly raised below, the essence of defendant’s

argument is that the search of his property was unreason-

able, in violation of the Fourth Amendment.

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 af-

fects anyone other than the homeowner himself;

(Petition at 23).

Having so postured the issue, petitioner has erected

substantial barriers to review. As previously stated, no

Fourth Amendment issue was raised or decided in the

state courts below. Nor was the validity of the search

warrant ever contested.!

The record here is even more inadequate than that in

DeBacker v. Brainard, 396 U.S. 28 (1969). In DeBacker,

this Court declined to review a contention where the

appellant “made only passing reference to the issue in his

brief” to the Nebraska Supreme Court and the state court

“did not pass on the issue, nor even refer to the conten-

tion.” 396 U.S. at 32. See also United States v. Ortiz,

422 U.S. 891, 898 (1975).

But the most blatant deficiency here is the inconsistency

between the defendant’s Fourth Amendment claim, focus-

ing on the privacy of the home, and the facts surrounding

the search and seizure of his marijuana. Marijuana was

seized from a greenhouse located approximately 50 feet

1, Attorney Ford has represented the defendant throughout these

proceedings.

4

* 3

from the defendant’s home, as well as from the home

itself.

The lower courts were not given an opportunity to

determine whether or not this greenhouse was situated

within the curtilage of the defendant’s home. If it were

not, and the “open fields” doctrine governed, the green-

house would not be entitled to any Fourth Amendment

protection. Air Pollution Variance Board v. Western

Alfalfa Corp., 416 U.S. 861 (1974), reaffirming Hester

v. United States, 265 U.S. 57 (1924).

The inappropriateness of permitting review of this un-

timely issue could not be more evident.

II.

THE SEIZURE OF MARIJUANA FROM A

PRIVATE RESIDENCE PURSUANT TO A

VALID SEARCH WARRANT DOES NOT

VIOLATE THE FOURTH AMENDMENT.

There is no precedent in this Court suggesting that the

seizure of marijuana from a home pursuant to a valid

search warrant might constitute an unreasonable search.

On the contrary, “valid warrants may be issued to search

any property . . . at which there is probable cause to

believe that fruits, instrumentalities, or evidence of a

crime will be found.” Zurcher v. Stanford Daily, 436 U.S.

547, 554 (1978).

Defendant’s reliance on Payton v. New York, ........

RAM ‘hse , 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), is

misplaced. Payton merely reiterated the cardinal principle

that “the Fourth Amendment has drawn a firm line at the

entrance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a war-

rant.” 100 S.Ct. at 1382. Here, of course, the State ob-

tained a warrant, which has never been challenged and

must be presumed valid.

**

The special constraints placed upon search warrants

directed at material arguably protected by the First Amend-

ment, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979),

have never been extended to seizures of “weapons, nar-

cotics or cases of whiskey.” Stanford v. Texas, 379 USS.

476, 486 (1965). See also Roaden v. Kentucky, 413 US.

496 (1973).

The additional safeguards afforded books, pamphlets

and movies derives from the unique vulnerability of pro-

tected expression. .““The line between speech uncondition-

ally guaranteed and speech which may legitimately be

regulated, suppressed, or punished is finely drawn.” Marcus

v. Search Warrants, 367 U.S. 717, 731 (1961).

The rationale of these First Amendment cases is plainly

inapplicable to the seizure of contraband. Defendant’s

argument that marijuana should be given special Fourth

Amendment protection necessarily rests on his assertion

that the private use and possession of the drug “impact

no cognizable state interest.” (Petition at 34). Neither

the evidentiary record compiled below nor the decisional

law, including the opinion of the Washington Supreme

Court, supports such an assumption.

ITT.

THE STATE OF WASHINGTON MAY

CONSTITUTIONALLY REGULATE THE PRIVATE

USE AND POSSESSION OF MARIJUANA.

It is firmly established that the State of Washington

may, in the exercise of its police power, regulate the use

and possession of dangerous or habit-forming drugs.

Robinson v. California, 370 U.S. 660 (1962); Whipple

v. Martinson, 256 U.S. 41 (1921).

6

Correctly appiying the rational relation test,2 the Wash-

ington Supreme Court found that the state legislature

could have reasonably concluded that marijuana is a

dangerous drug.

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. Mari-

juana creates a euphoric state of intoxication

which impedes learning, incentive, efficiency,

and, importantly, motor coordination. There re-

mains 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 ef-

fects of marijuana and the as yet unknown pro-

perties of the drug, it could reasonably find that

marijuana creates a danger to users and others.

Furthermore, the legislature may well have

considered more evidence than was brought be-

fore the trial court in this case. We cannot say,

therefore, that the adoption of laws imposing

criminal penalties was not reasonably indicated

to protect the public welfare.

We note that the apparent dangers of mari-

juana 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

2. “Where . .. the Congress has neither invaded a substantial

constitutional right or freedom, nor enacted legislation that pur-

posefully operates to the detriment of a suspect class, the only

requirement of equal protection is that congressional action be

rationally related to a legitimate government interest.” Harris v.

McRae, 48 U.S.L.W. 4941, 4949 (U.S., June 30, 1980).

7

7%

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 People v. Summitt, 183 Colo.

421, 517 P.2d 850 (1974).

In legislating for health, safety and welfare,

certain constraints upon individual freedom have

traditionally been 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 (motor-

cycle helmet law sustained). It is not our proper

function to substitute our judgment for that of

the legislature with respect to the necessity of

these constraints.

We hold the statutory prohibitions against

marijuana use are rationally related to the ac-

complishment of a legitimate governmental ob-

jective — public health and safety. As such,

they are not violative of equal protection.

State v. Smith, supra at 93 Wn.2d 338-39 (notecalls

omitted ).

The court’s finding was based on an independent re-

view of the extensive evidentiary record. Jd. at 335. It

is consistent with the recent decision of a three-judge

panel of the United States District Court for the District

of Columbia, also made after a lengthy hearing on the

effects of marijuana.

Experts still strongly disagree about the safety

of marijuana, and its long-term effects remain an

open question. Studies indicate that marijuana

may impair the circulatory, the endocrine, and

the immunity systems of the body, alter chro-

mosomes, and change cell metabolism. Although

many dispute these findings, this contradictory

-

evidence demonstrates that important questions

about marijuana use persist.

Given the continuing debate over marijuana,

this court must defer to the legislature’s judg-

ments on disputed factual issues.

NORML v. Bell, 488 F.Supp. 123, 136 (D.D.C. 1980).

The federal district court recognized, as did the Wash-

ington Supreme Court, that “judicial deference is ap-

propriate when difficult social, political, and medical

issues are involved. Courts should not step in when legis-

lators have made policy choices among conflicting alter-

natives.” NORML v. Bell, supra at 137.

That it is not the function of the judiciary to make an

independent appraisal of competing interests was clearly

enunciated by this Court in resolving a challenge to an-

other controversial enactment. “It is not the mission of

this Court or any other to decide whether the balance of

competing interests reflected in the Hyde Amendment is

wise social policy.” Harris v. McRae, 48 U.S.L.W. 4941,

4949 (U.S., June 30, 1980).

It cannot seriously be disputed that the State of Wash-

ington has the constitutional authority to proscribe the

use and possession of marijuana.

IV.

THE FEDERAL CONSTITUTIONAL RIGHT

OF PRIVACY DOES NOT ENCOMPASS

THE PRIVATE POSSESSION OF MARIJUANA

IN ONE’S HOME.

If the State of Washington has a legitimate interest in

prohibiting the private use and possession of marijuana,

that interest does not disappear upon a person’s entrance

to his home.3 On the contrary, “{t]}he mere fact that this

3. See Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199,

1202 (E.D. Va. 1975), aff'd, 425 U.S. 901 (1976).

9

=”

°F

otherwise unprotected activity is conducted in the home

does not, in itself, place it in the protected zone of the

constitutional right of privacy.” J/llinois NORML v. Scott,

66 Ill. App. 3d 633, 23 Ill. Dec. 303, 383 N.E.2d 1330,

1332 (1978).

Defendant’s contention that the United States Consti-

tution guarantees the right to possess and use marijuana

in one’s home has been rejected by lower federal and state

courts with monotonous regularity.4 These authorities

have not accepted proposals to extend Stanley v. Georgia,

394 U.S. 557 (1969), to include the private possession

of marijuana.

In holding that “the First and Fourteenth Amendments

prohibit making mere private possession of obscene ma-

terial a crime,”5 Stanley v. Georgia, supra at 568, this

Court specifically limited the scope of its opinion.

4. No less than fourteen decisions have upheld state proscrip-

tion of private marijuana possession in the home, not including

the opinion of the Washington Supreme Court. United States v.

Drotar, 416 F.2d 914 (Sth Cir. 1969), vacated on other grounds,

402 U.S. 939 (1971); NORML v. Bell, 488 F.Supp. 123 (D.D.C.

1980); Louisiana NORML v. Guste, 380 F.Supp. 404 (E.D. La.

197¢), aff'd, 511 F.2d 1400 (Sth Cir.), cert. denied, 423 US.

867 (1°75); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070

(1977); Laird v. State, 342 So.2d 962 (Fla. 1977); Blincoe v.

State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Baker, 535

P.2d 1394 (Hawaii 1975); State v. Kincaid, 98 Idaho 440, 566

P.2d 763 (1977); Illinois NORML v. Scott, 66 Ill. App.3d 633,

23 Ill. Dec. 303, 383 N.E.2d 1330 (1978); State v. Chrisman,

364 So.2d 906 (La. 1978); Marcoux v. Attorney General, ....

Mass. ..... 375 N.E.2d 688 (1978); State v. Kells, 199 Neb. 374,

259 N.W.2d 19 (1977); People v. Shepard, .... N.¥.2d .

N.E.2d .... (June 6, 1980); Cavaness v. State, 581 P.2d 475 (Okla.

Cr. App. 1978), cert. denied, 439 U.S. 1117 (1979).

5. Three Justices concurred in the result on the ground that the

unauthorized screening of films violated the Fourth Amendment.

The rationale of the concurring opinion formed the basis of this

Court’s opinion in Walter v. United States, 48 U.S.L.W. 4807

(U.S., June 20, 1980).

10

**

What we have said in no way infringes upon

the power of the State or Federal Government

to make possession of other items, such as nar-

cotics, firearms, or stolen goods, a crime. Our

holding in the present case turns upon the

Georgia statute’s infringement of fundamental

liberties protected by the First and Fourteenth

Amendments. No First Amendment rights are

involved in most statutes making mere possession

criminal.

Id. at n. 11.

Thus, the simple response to the question presented by

this petition is that the decision of the Washington Su-

preme Court does not conflict with Stanley v. Georgia.

The rationale underlying the disparate constitutional

treatment afforded obscenity and drugs such as mari-

juana is readily apparent. The holding in Stanley derived

not only from the First Amendment implications of the

case,® but also from the absence of public impact of the

proscribed activity. See Paris Adult Theatre I v. Slaton,

413 U.S. 49, 59 (1973). The State cannot here improve

on the analysis and reasoning of the Massachusetts Su-

preme Judicial Court.

Thus the Paris Adult Theatre and Orito cases

were stressing the point that in Stanley the place

of the possession, the confinement of the view-

ing of the material, reduced to a null force, or

nearly so, any claim of deleterious public effects

which could possibly legitimate the State’s intru-

sion . . . The Stanley Court had indeed said, re-

plying to the argument that the private reading

of obscene matter would cause antisocial con-

duct, that there was ‘little empirical basis’ for

6. Defendant’s belated attempt to ground his privacy claim in

the Fourth Amendment demonstrates his recognition that the

right of privacy encompasses only fundamental liberties and those

rights created by specific constitutional guarantees. Paul v. Davis,

424 US. 693, 712-13 (1976).

11

that assertion (394 U.S. at 566, 89 S.Ct. 1243)

and in all events the ‘least restrictive alternative’

analysis familiar in First Amendment discussions

would require that the State legislate against

the antisocial behavior rather than the ideas

that caused it. In contrast, in the case of mari-

juana, we are bound to assume for constitutional

purposes that the private use does have public re-

sults, does spill over into the public domain and

touch matters of legitimate State interest, while

the freedom impaired by the penal statute, taken

at its highest evaluation, does not reach the

level of that freedom conceived by the Court to

be implicated in Stanley.

Marcoux v. Attorney General, ........ SEY -csivaaee , 375 N.E.

2d 688, 691 (1978).

Since defendant has not contested the findings of the

Washington Supreme Court concerning the dangerousness

of marijuana, his assertion that the private use of mari-

juana “demonstrably affects no public interest” (Petition

at 23) is not persuasive.

However, the protection of the public from the harmful

effects of marijuana is not the only state interest served

by proscription. As the trial court recognized (petition

at B27), the State of Washington has a legitimate and

permissible objective in protecting the public from the

intoxicating effects of the drug.

The governmental interest in prohibiting marijuana

intoxication flows from the founding principles of our

nation. The most fundamental concept of the democratic

process is the free exchange of political ideas. To this

end, the First Amendment functions to ensure that there

will be a “marketplace of ideas,” open to all political

ideas, even those that perhaps a majority of citizens

consider reprehensible. The risk of our democratic ex-

periment is whether the “right” ideas shall prevail. In

12

**

short, the determinative factor in the success or failure

of our system of government is the ability of the people

to consider and decide the proper course for our nation

to follow.

What governmental interest could then be more vital

than the interest of insuring, to the extent possible, that

the people are educated, mentally competent and in

possession of reasoning powers sufficient to deal with

complex political issues. The defense experts did not

disagree with the trial court’s finding concerning the

effects of marijuana intoxication on the mind:

Marijuana does interfere with the orderly pro-

cesses of the mind . . . complex reasoning is

interfered with, as is the ability to concentrate

effectively . . . there is reliable evidence that

information acquired during intoxication is not

stored efficiently in the memory centers of the

brain. (Petition at B17).

In analyzing the nature of marijuana as an intoxicant,

potency is not the only significant factor. The drug is

easily concealed and difficult to detect once ingested.

One may become intoxicated from marijuana in a rela-

tively brief period of time. Nor are there any harsh after-

effects as is the case with alcohol intoxication.

Marijuana is a vastly more comfortable intoxicant to

use than alcohol? and therein lies its greatest danger.

A user, even an adolescent user, may spend a significant

portion of his life intoxicated and, consequently, in an

impaired mental state.

Indeed, a recent report submitted by the defendant

himself shows that “[a}mong high school seniors nation-

7. The State of Washington may constitutionally prohibit the

private possession of intoxicating liquor, though it has chosen not

to do so. Crane v. Campbell, 245 U.S. 304 (1917); Mugler v.

Kansas, 123 U.S. 623 (1887); State v. Giaudrone, 109 Wash.

397, 186 P. 870 (1920).

13

wide, one in eleven reports using [marijuana} on a daily

basis, up from one in twelve in 1976 and one in seven-

teen in 1975.” MARIJUANA AND HEALTH, Seventh

Annual Report to the U.S. Congress from the Secretary

of Health, Education and Welfare at 2 (1978).

Defendant’s argument is premised on his view that

there are no social costs associated with the private use

of marijuana. The State of Washington could not dis-

agree more strongly.

V.

THERE IS NO CONFLICT OF AUTHORITY

ON THE FEDERAL QUESTION PRESENTED.

Defendant asserts that the lower courts are divided

on the federal right of privacy issue,8 a split which he

characterizes as “not wide [b]ut . . . deep.” Petition at

41). The State of Washington submits that not only

is the conflict of authority neither wide nor deep, in

reality it is nonexistent.

In addition to some dissenting and concurring opinions,

defendant relies on State v. Kantner, 53 Hawaii 327, 493

P.2d 306 (1972), cert. denied, 409 U.S. 948 and Ravin

v. State, 537 P.2d 494 (Alaska 1975).

In State v. Kantner, supra, the Hawaiian Supreme Court

upheld the classification of marijuana as a narcotic drug

against an equal protection challenge. Defendant quotes

dicta in the concurring and dissenting opinions in Kantner

concerning the extent of the right of privacy.

The precedential value, if any, of these opinions was

8. There can hardly be a conflict of authority on the question

of whether the seizure of marijuana from a home under warrant

is se unreasonable. The State is not aware of any case in

which this “limited and fundamental issue” has even been raised,

let alone decided.

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nullified by the Hawaii Supreme Court’s subsequent de-

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

Baker held, in the context of a privacy challenge, that

neither that state’s nor the federal constitution protects

the possession of marijuana for personal use.

Defendant’s reliance on Ravin v. State, supra, is equally

misplaced. Ravin rested on a state constitutional pro-

vision, adopted in 1972, which explicitly guaranteed a

right of privacy. Alaska Const., Art. 1, 822.

Thus, we conclude 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.

Far from creating a conflict on the federal question

presented, Ravin has been widely perceived (and dis-

missed) as a decision on state constitutional grounds.

E.g., NORML v. Bell, supra at 132 n. 23 (“The Alaska

Court based its ruling on a new provision of the state

constitution ... ”).

The Alaska Supreme Court has acknowledged that its

holding in Ravin exceeded the scope of the federal con-

Stitutional right of privacy. Citing Ravin, the court re-~

cently conceded, “We think it clear from both section 22

and our decisional law that the right of privacy guaran-

teed to Alaska citizens is broader in scope than that

guaranteed in the federal constitution.” State v. Daniel,

589 P.2d 408, 416 (Alaska 1979).

In fact, the precedential impact of Ravin has been so

insignificant that other state courts have declined to follow

it in interpreting recent amendments to their own con-

15

stitutions also explicitly guaranteeing a right of privacy.

NORML v. Gain, 100 Cal. App.3d 586, 161 Cal. Rptr.

181 (1979); Zander v. District Court, 591 P.2d 656

(Mont. 1979).

There is no conflict of authority on the federal question

presented for review. The decisional law is logical, com-

prehensive and dispositive. As petitioner concedes, this

Court has thrice previously denied petitions for certiorari

raising the issue.? The same disposition is particularly

appropriate here, where the petitioner has revised and

restructured his argument in a manner not presented to

the state courts below.

9. Louisiana NORML vy, Guste, 380 F.Supp. 404 (E.D. La. 1974),

aff'd, 511 F.2d 1400 (Sth Cir.), cert. denied, 423 U.S. 867 (1975);

State v. Kantner, 53 Hawaii 327, 493 P.2d 306 (1972), cert.

denied, 409 U.S. 948; Cavaness v. State, 581 P.2d 475 (Okla. Cr.

App. 1978), cert. denied, 439 U.S. 1117 (1979).

CONCLUSION

For the above-stated reasons, the State of Washington

submits that this petition for a writ of certiorari should

be denied. .

Respectfully submitted,

RUSS JUCKETT

Prosecuting Attorney for

Snohomish County,

Snohomish County Courthouse

Everett, Washington 98201

ASA D. GLAZER

Deputy Prosecuting Attorney

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