Wash. court: Doc's pot OK doesn't preclude search

A doctor's permission to use medical marijuana doesn't preclude police from arresting a patient or searching his home, the Washington State Supreme Court ruled Thursday.

The court upheld the conviction of Jason Fry, a Stevens County man arrested with 2 pounds of marijuana in 2004. Justices said sheriff's officers who smelled marijuana smoke at his home had probable cause to believe a crime was committed - even after Fry presented them with an authorization from his doctor.

Eight of the nine justices said Washington's law only allows patients to present a medical marijuana defense at trial, and does not protect them from arrest or searches. It's hard to imagine how police could determine whether someone was complying with the law - such as by only possessing a 60-day supply of marijuana - without conducting a search, they said.

"Possession of marijuana, even in small amounts, is still a crime in the state of Washington," Justice James Johnson wrote in the lead opinion. "A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys' residence."

Justice Richard Sanders dissented on that point, saying such an analysis would neuter the state's compassionate use law, passed by voters in 1998. While the law does create a defense against marijuana charges to be used at trial, he said, it also states that qualifying patients "shall not be penalized in any manner, or denied any right or privilege" for using marijuana under the act.

Under the court's ruling, a patient could be searched, arrested and hauled to court every time an officer smells marijuana at his or her home, even if they were complying with the medical marijuana law, Sanders argued.

"I do not find the mercy of the people of Washington for individuals with terminal or debilitating illnesses to be so fickle," Sanders wrote.

Many supporters of the medical marijuana law are frustrated that patients continue to be arrested and prosecuted more than a decade after the law was passed, and Thursday's ruling only compounded that frustration. Some prosecutors have also expressed frustration over the difficulty of determining what's legal and what's not under the state's medical marijuana law.

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

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

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

One group, Sensible Washington, cites the law's ineffectiveness as one reason the organization is pushing a ballot initiative this year that would remove all state criminal penalties for adult use, possession, growing and delivery of marijuana.

"The court basically said medical marijuana patients are automatically subjecting their house to search by the state," said Paul Lawrence, an attorney with K&L Gates in Seattle who helped write a friend-of-the-court brief in the case. "That's extraordinarily intrusive. The people of this state would not want this decision to be the law of the state."

Five of the justices also ruled that generally, judges must allow a jury to decide whether someone is a qualifying patient under the law. In this case, a Stevens County judge ruled on his own that Fry was not a qualifying patient.

Nevertheless, Fry's conviction was upheld because a defense lawyer conceded that his severe anxiety and depression are not conditions covered by the law.

Alison Holcomb, drug policy director with the American Civil Liberties Union of Washington, said she was irked that the court ignored one argument raised in the ACLU's briefing in the case: that Fry should have been allowed to present evidence that he was reasonably relying on a doctor's opinion that he was a valid patient under the law, and therefore should not be found criminally liable.

"This puts patients in the position of not knowing whether their authorization will protect them," Holcomb said.