No. 14330 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA exrel., JAMES ZANDER, Relator,

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, inand for the Countyof Missoula, and the HONORABLE JACK L. GREEN, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: RobertJ. Campbell argued, Missoula, Montana ForRespondents: Hon. Mike Greely, Attorney General, Helena, Montana Denny Moreen argued, AssistantAttorney General, Helena,

Montana RobertL. Deschamps 111, CountyAttorney, Missoula,

Montana Ed McLean argued, Deputy CountyAttorney, Missoula, Montana

Submitted: June 19, 1978 Decided:

### MAE

## 1 1979 Filed: 

### !dkk

-A

## 1

## 13%

### Mr. Chief Justice Frank I. Haswelldelivered the Opinion of the Court. Relator James Zander has filed an original application for a writ of supervisory control in this Court seeking review and reversal of the District Court'sdenial of hismotions to dismiss and suppress a pending criminal case againsthim. On November 

### 4, 1977,Zander's neighbor in the Juniper Trailer Court outside the city limits of Missoula,Montana reported to the sheriff's office that someonewas tampering with the kitchenwindow in relator's trailer home. Deputy Hintz was advised there was a burglary in progress and was dispatched to the scene. Upon arrivalDeputy Hintz went directly to the residence of the neighbor who had reported the incident. The neighbor told him there was no one at home at Zander's trailer home and that the trailer door was always kept locked. Deputy Hintz observed a light over the kitchen sink in the Zander home, could not see anyone inside,noticed no signs of entry through the kitchen window, and sawno one nor anything suspicious outside the house. He knocked at the door and received no response. He tested thedoor handle and found thedoor unlocked. He thought the reported prowler or burglar might be hiding in the house so he entered. Hewalked through the living room and the kitchen which appeared undisturbed. Deput-yCrego,who had been dispatched to the scene as a backupman, entered the house moments after Deputy Hintz' entrance. The officers then entered the back bedroom and saw a light shining under the closet door. They opened the door and discovered marijuana plants growing there under artificial light. Another closetdisclosed the same scene. The officers had no reason to believe there were any marijuana plants or drugs on thepremises. They searched onlythose areas of Zander's home where a prowler or burglar could have been hiding. The officers left Zander's house, secured a search warrant, returned,and seized themarijuana plants, two coffee

cans containing suspected marijuana plant material, and 2 one

ounceplastic baggies of marijuana. Zanderwas chargedwith the criminal sale of a dangerous drug by reason of the unlawful cultivationofmarijuana. He moved to dismiss the charge and to suppress the evidence seized. The District Court of Missoula County denied all motions to dismiss and suppress. Zander then applied to this Court for awrit of supervisory control to test the correctness of these rulings. We set thematter for adversary hearing and ordered briefs filed. In addition to the briefs of theparties, amicusbriefs were filed by theAmerican Civil ~iberties Union and by the County Prosecutor's ServicesBureau. Five issues arepresented in thismatter:

(1) Is supervisory control an availableremedy? (2) Did the search violate the right of privacy provision in the State Constitution? (3) Did the searchviolate the constitutionalprohibition againstunlawful searchesand seizures? (4) Does the statuteunder which defendant isbeing prosecuted violate the equalprotection guarantee in the State Constitution? (5)Does the statute under which defendant is being prosecuted violate the "dueprocess" requirement of Montana's Constitution? The State contends that supervisory control is not a proper remedy here because the District Court's rulings were neither arbitrary or unlawful and that an adequate remedy byappeal is available in the event of relator's conviction. Thewrit of supervisory control isnot a common law or statutorywrit. It isderived fromMontana's constitutional provision granting this Court general supervisory control over all other courts. Article VII, Sec. 2(2), 1972 Montana Constitution. A similar provision existed inMontana's 1889 Constitution,Article VIII, Sec. 2. The writ has long been established as a part of this state's law and the discretionary use of this writ in originalproceedings before this Court has a history of over 50 years. The discretion to use this writ isdetermined by the needs of the individual case. Comparatively recently, itwas used to test the constitutionality of the same statute here attacked at the close of the State's case-in-chief. State ex rel. LeMieux v. Dist. Court (1975), 166 Mont. 115, 531 P.2d 665, appeal dism., sub.nom. District Court of Fifth Judicial District of Montana v. Montana ex rel. LeMieux, 442 U.S. 1030, 95 S.Ct. 2647, 45 L Ed 2d 687. Because we wish to again examine the constitutionality of the statute,we exercise our discretion to do so by supervisory controlprior to trial rather than limiting defendant to his remedy by appeal in the event of his conviction following trial. We will discuss the second and third issues in this proceeding together. Defendant argues that the search and seizurehere was unlawful for two reasons: (1) that it violated the "search and seizure" provisions of the United Statesand Montana Constitutions,and (2) that it violated the "right of privacy"provisions in theMontana Constitution. Both the Federal and State Constitutionsprohibit unreasonable searches and seizures. Fourth Amendment, U.S. Constitution; ~rticle 11, Sec. 11, 1972Montana Constitution. Both permit searches and seizuresunder valid searchwarrants andunder certain circumstanceswithout a searchwarrant. Here the focus of defendant's attack is not on the searchwarrant per se,but on the absence of probable cause in the first place to enter defendant's house without a warrant where the marijuana plants were discovered. He attacksboth the warrantless entry into his house and the scope of the search in which the discovery

wasmade that formed the basis for issuance of the searchwarrant. We hold that the warrantless entry into Zander's house by deputies Hintz and Cregowas proper and justified. A person had been observed under circumstances indicating an attempt at forced entry into the Zanderhome. Deputy Hintz found the front door unlocked after having been informed that nobody was home and that the doorwas always lockedwhen the Zanders were away, The officers at the time of entry were engaged in protecting the Zanderproperty. This included determiningwhether any burglars

were hiding inside the house. A prudent officerwas warranted in believing that a felony had been attempted or committed and in concluding that prompt entry into the home was necessary to protect theproperty and determine whether the suspectwas hiding in the house. State v. Schrag (1975),21 0r.App. 655, 536 P.2d 461; Henry v. United States (1959), 361U.S. 98, 80 S.Ct. 168, 4 L Ed 2d 134; Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L Ed 2d 327. As the officers' entry and search for the suspectwas lawful,the incidental discovery of the contraband during the

course of the searchwas likewise lawful under the "plainview" doctrine. Coolidgev. New Hampshire (1971), 403U.S. 443, 91 S.Ct. 2022, 29 L Ed 2d 564. It is well settled that an object inplain view of an officer who lawfully is in a position to have that view is subject to seizure. Harrisv. United States

(19681,390U,S. 234, 88 S.Ct. 992, 19 L Ed 2d 1067. Montana has applied thisprinciple and stated the rule in this language:"The rule is: Where there isprior justification for the police to search an area, and in searching the area, they inadvertently find incriminating evidencewhich they had no reason to anticipate, theymay lawfully seize that incriminating evidence." State v. Gallagher (1973), 162 Mont. 155, 167, 509 P.2d 852, 858. Here the officerswere not searching for drugs but for

a suspectedburglar. They had no reason to suspect thepresence of contraband in the house. Their searchwas limited to places where the suspect might be hiding. The permissible scope of the search is as broad as is reasonably necessary to prevent the escape of the suspect from the house. Warden v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L Ed 2d 782. One of these possible hiding places was the closet where the contraband was discovered in plain view. Following its discovery,they secured

a searchwarrant and seized the evidence. The officers conducted themselves in a laudable,exemplary and thoroughly lawful manner. The second prong of defendant's argument that an unlawful search and seizure occurred is based on the "right of privacy" contained in the 1972Montana Constitution. The gist of defendant's contention is that therewas no compelling state interest justifying the invasion of a private home to criminalize the growing of amarijuana plant by an adult. Defendant cites the expert opinion evidence of Clarence C. Gordon,Professor of Botany at the University of Montana, and John P. DanielsM.D.,

a physician inArlee, Montana to the effect that amarijuana plant constitutes no risk or hazard to health. Also cited is an affidavit of Dr. ThomasUngerleider concerning recent studies ofmarijuana and why the present state of scientific knowledge has discredited its harmful effects. This affidavit was not presented to the District Court in this case but was taken from another District Court case in the ninth judicial district and first injected into this case in relator's brief to this Court.We do not reach a determinationof whether the cultivation or use of marijuana is or should be criminalized. This ispatently amatter of state law to be determined by the legislature. The legislature has determined this by enactment of statutes making sale or possession of marijuana a criminal offense. Sections 54-132 and 54-133,R.C.M. 1947,now sections 45-9-101 and 45-9-102 MCA. This Court will not intrude on this legislativeprerogative under the questionable theory that there is

no evidence or policy basis for the statutes and that the legislaturehad no rational or reasonable basis for enacting them. The remainder of Zander's contention is that there is

no compelling state interest justifying intrusion into a private home to prevent an adult occupant fromgrowing a marijuana plant, citing the "rightof privacy" provision in Montana's Constitution. Our Constitution provides: "The right of individualprivacy is essential to thewell-being of a free society and shall not be infringedwithout the showing of a compelling state interest." Art. 11,Sec. 10, 1972 Montana Constitution. We have no quarrelwith this constitutional provision nor with the various authorities cited by relator and amicusAmerican Civil Liberties Union for the pronouncement that a person has the valued and fundamentalright to be let alone, free from governmental intrusion; Olmstead 

### v. United States (1928), 277 U.S. 438, 48 S.Ct. 564, 72 L Ed 944; or that a man's home is his castle and the right of privacy there is a part of the constitutional guarantee of liberty and the pursuit of happiness. Statev. Brecht (1971),157Mont. 264, 485 P.2d 47;Welsh v. Pritchard (1952), 125Mont. 517, 241 P.2d 816. We have also examined the other authorities cited by both parties and amici: Boyd v. United States (1886),116 U.S. 616, 6 S.Ct. 524, 29 L Ed 746; State v. Sawyer (1977), Mont

# . , 571 P.2d 1131, 34 St.Rep. 1441- Ravin v. State (1975), Alaska 

### , 537 P.2d 494; State

### v. Robey (1978), Mont

# . , 577 P.2d 1226, 35 St.Rep. 541; -7-Statev. Murphy (1977)

## , 117Ariz. 57, 570 P.2d 1070; and the other authorities cited in the briefs too numerous to mention here. From these cases and our constitutional language certain principles of law emerge. The right of individual privacy is a fundamental constitutional right expressly recognized as essential to thewell-being of our society. The constitutional guarantee of individual privacy is not absolute. Itmust be interpreted,construed and applied in the light of other constitutionalguarantees and not in isolation. The right of individual privacy must yield to a compelling state interest. Such compelling state interest exists where the state enforces its criminal laws for the benefit and protection of other fundamental rights of its citizens. The compelling state interest in this case lies in the protection of a citizen's home and its contents fromunlawful intrusion. Relator's argument that the compelling state interest must be found in statutesprohibiting the cultivationand sale ofmarijuana is nonsense. The officers' intrusion here was purely and simply to protect the home and its contents including discovery and apprehension of the suspect. The purpose of the intrusion had nothing to dowith enforcement of marijuana laws. Protectionof a person's property is an inalienable right guaranteed by our Constitution, Art. 11,Sec. 3, 1972 Montana Constitution. This constitutional protection furnishes the compelling state interest towhich the right of individual privacy must yield in this case. Accordingly we hold that the District Courtwas correct in denying dismissal of the charge against defendant for violation of constitutional prohibitions against unreasonable searches and seizures and the right of privacy. Zander next contends that the statuteprohibiting thecultivation ofmarijuana plants denies him equal protection of the lawsunder Art. 11, Sec. 4 of the 1972Montana Constitution. He argues that cultivation of tobacco is equally as harmful as cultivation ofmarijuana and that because no criminal sanctions

areplaced on tobacco cultivationwhile criminal statutesprohibit marijuana cultivation, he isdenied equal protection of the laws. Criminal statutesneed not apply to all areas thatmay be injurious to public health and failure of the legislature to do so does not constitute denial of equal protection of the laws. Ravin v. State (1975)

## , Alaska 

### , 537 P.2d 494. Determinationor classificationof the subjects of legislation does not deny equal protection. State v. Mitchell (1978), Mo

# . , 563 S.W.2d 18; State v. Kells (1977),199Neb. 374, 259 N.W. 2d 19. If allpersons in the same class are treated alike, there isno violation of equal protection. Hart Refineries

v. Harmon (1928),81Mont. 423, 263 P. 687,affd. 278 U.S. 499, 49 S.Ct. 188, 73 L.Ed. 475. Here there is but one class and all persons within that class are treated equally satisfying constitutional equal protection requirements. Finally relator contends that section 54-132,R.C.M. 1947,

now section 45-9-101MCA, violates the dueprocess guarantee in Montana's Constitution by creating an arbitrary presumption that cultivation of marijuana constitutes a sale of marijuana. The state responds that this issue was decided adversely to relator in State ex rel. LeMieux

### v. District Court (1975),166Mont. 115, 531 P.2d 665,appeal dismissed, sub.nom., District Court of Fifth Judicial District of Montana v. Montana ex rel. LeMieux, 442 U.S. 1030, 95 S.Ct. 2647, 45 L Ed 2d 687. We agree that our holding in LeMieux ruled the statute in question constitutional against relator'sattack here. However, we wish to re-examine our ruling in LeMieuxprior to anytrial in this case and accordingly have granted reviewby supervisory control for that purpose. LeMieuxwas a 3-2 decision reversing the ruling of the district judge that the statutewas unconstitutional. Twomembers of themajority are no longer on the Court. The third member of themajority on the LeMieux court has expressed a desire to re-examine and review the LeMieux ruling. We proceed. The statute in question provides in pertinent part: "Aperson commits the offense of a criminal sale of dangerousdrugs if he 

# . .. cultivates

# .. . any dangerousdrugs asdefined in [thisact]." Sec. 54-132,R.C.M. 1947, now section 45-9-101MCA. Marijuana and marijuana plants are defined as dangerousdrugs elsewhere in the Controlled SubstancesAct, sections 54-301 and 54-305,R.C.M. 1947, now sections 50-32-101 and 50-32-222 MCA. Themajority held in LeMieux that the statute was constitutional because the legislature simply broadly defined "sale",did not create a presumption of "sale" from cultivation,and because the legislaturecould have prohibited the cultivation ofmarijuana by separate statute it did not overstep itspower in including cultivation within the definition of "sale" in the act. On re-examination it becomes clear that the legislature did create a conclusive and irrebuttablepresumption 

### of "sale" of marijuana from cultivation thereof. The language of the statute is clear and unambiguous. Itplainly states that a person commits a criminal sale of marijuana if he cultivates it. The intention of the legislature must first be determined from the plain meaning of thewords used and if themeaning of the statute

canbe so determined, the courtsmay not go further and apply any othermeans of interpretation. Dunphy v. Anaconda Company

(1968),151Mont. 76, 438 P.2d 660;Haker v. SouthwesternRy. Mont

# . Co. (1978), 

## , 578 P.2d 724, 35 St.Rep. 523. When the language of the statute is plain, unambiguous,direct andcertain, the statute speaks for itself and there isnothing for the Court to construe. Dunphyv. Anaconda Company, supra; Jonesv. Judge (1978), Mont

# . 577 P.2d 846, 35 St.Rep. 460. The functionof the Court is simply to ascertain and declare what in terms or in substance is contained in the statute. Section 93-401-15,R.C.M. 1947,now section 1-2-101MCA. Applying these ruleswe now hold that section 54-132,R.C.M. 1947,now section 45-9-101MCA, creates a conclusivepresumption of a criminal sale of marijuana from its cultivation. The test of the constitutionality of such a statutory presumption has been determined by the United States Supreme Court: "Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the factproved and the ultimate fact presumed, if the inference of one fromproof of the other is arbitrary because of lack of connection between the two in common experience." Tot

### v. United States (1943), 319 U.S. 463, 467-468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 A later U. S. Supreme Court decision further defined the test: "Theupshot of 

### - Tot,Gainey and Romano is,we think, that a criminal statutory presumption must be regarded as 'irrational'or 'arbitrary'

## ,and hence unconstitutional, unless it can at least be said with substantial assurance that thepresumed fact ismore likely than not to flow from theproved fact onwhich it ismade to depend." Leary v. U.S. (1969), 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L Ed 2d 57, 82. We apply this test to the statute in question. 

### We conclude that the fact proved (cultivationof marijuana) bears no rational connectionwith the fact presumed (sale of marijuana). Marijuana cultivators are not ips0 factomarijuana sellers. Common experience indicates thatmany marijuana users cultivate theplant for their own use,particularlywhere, as here, small amounts are cultivatedwithin the confines of one's closet. We cannot saywith substantial assurance that such cultivating ismore likely than not to result in a sale. A conclusive statutory presumption that a marijuana cultivator is a marijuana seller ispurely arbitrary. Itprecludesproof to the contrary. It offends the "dueprocess" clause of our State Constitution. Art. 11, Section 17, 1972 Montana Constitution. Accordingly we hold thatpart of section 54-132,R.C.M. 1947, now section 45-9-101 MCA providing that a person commits a criminal sale of dangerous drugs if he cultivates marijuana is unconstitutionalon its face. This ruling does not apply to nor affect section 54-133,R.C.M. 1947, now section 45-9-102 MCA, governing the offense of possession of marijuana. Dismissal of the charge of a criminal sale of dangerous drugs against relator Zander in the District Court of Missoula County is granted.

Justices

Mr. JusticeDaniel J. Shea: I concurwith themajority opinion declaring section 54-132,R.C.M. 1947, to be unconstitutional in part, and will provide shortlymy observations concerning the constitutionality of statutory presumptions in the field of the criminal law. I dissent from the majority on the right of privacy issue and a written explanationwill be file



## - 12

### -This is the dissent in State ex rel. Zander v. Fourth Judicial District, no. 14330

i/ CLERK OFSUPZEMECZsm STATE OF MONTILCAMr. Justice Daniel J. Shea concurring in part and dissenting in part:

I concur with part of the Court's decision determining that the officersmade a lawful entry into the defendant's home, and Iconcurwith the Court's decision declaring a part of section 54-132,R.C.M. 1947,now section 45-9-101 MCA. invalid because it creates an impermissible conclusive presumption. Ido have some observationson both of these points, however. Idissent to the Court's opinion declaring the officers did not violate the defendant's right of privacy by seizing themarijuana plants growing in his home. There is nothing in the record to suggest that the officers had ulterior motives for the entry into the defendant's home. There is no evidence that they entered his home for any purpose other than to look for an intruder and to provide for the security of the home. Upon such a record I conclude that the initial entry was lawful. Ibelieve however, that evidence concerning improper or ulterior motives could, in an appropriate case, compel an opposite conclusion. The courtsmust be careful that they do not allow a flimsy pretext to justify entry into the privacy of one's home. Themajority here has determined that section 54-132, R.C.M. 1947,now section 45-9-101MCA, creates a conclusive presumption that offends the dueprocess clause of the United States and Montana Constitutions. I agree. The Court cited Leary v. U.S. (1969), 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, as embodying the proper rule to apply, or at least the rule to apply as far as the United States Constitution is concerned. There are several facts however, which I think sh~uld be made clear.Leary v. U.S., supra,was a case where Congress enacted a statute which created a rebuttablepresumption that possession ofmarijuana was donewith knowledge that itwas imported. The United States Supreme Court declared this rebuttable presumption to deny due process of law. Leary was a far cry from the situation here where the legislaturedid not just create a rebuttablepresumption-- it created a conclusive presumption. This conclusive presumption could not be tolerated under any standard of dueprocess of law which had "fundamental fairness"as one of its basic tenets. It should also be emphasized that this Court has never laid down a definitive test for the constitutionality of a presumption under the due process clause of our own constitution. I do not read themajority opinion as adopting the Leary test as the test to be applied under our own constitution. Perhaps it remains for another day for us to make that determination. Leary also stands as awarning that the legislatures of this landmust be careful in adopting substantive crimes, and in creating presumptions, that the burden is not unconstitutionally shifted to the defendant. Indeed, Leary, in a footnote, indicates that the test may be more severe than the "substantial assurance" test quoted by themajority. The footnote stated: "Sincewe find that the #176apresumption is unconstitutional under this standard,we need not reach the questionwhether a criminal presumptionwhich passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use. [Citingauthorityl." 395 U.S. at 36.I turn next tomy dissent on the "rightof privacy" issue decided by themajority. Before venturing into legalistic arguments concerning the "right of privacy" in relation tomarijuana, and the factualbackground concerning what is known about marijuana, Imust confess that this society has been guilty of utter hypocrisy in its treatment of marijuana as opposed to other drugswhich have been demonstrated to have farmore appalling consequences to individualsand to the welfare of this society. The two drugs that stand outmost in my mind are tobacco and alcohol. Nonetheless,we continue to bury our heads in the sand, deeper and deeper. If there is a public health basis for criminalizing marijuana use, even in the home, there is a farmore compelling basis in the interest of protecting society, and individuals from themselves, to criminalize the possession and use of alcohol and tobacco. Thiswould of course, includepossession and use in the home forpurely personal, private purposes. (Iemphasize however, that Ido not recommend this course of action.) But assuming an unthinkable legislative act criminalizing alcohol and tobacco, itwould not be within the realm of reasonable contemplation that

even themost rabid prohibitionists and anti-smokers would sanction the invasion of theprivacy of the home to seize alcohol and tobaccopossessed by the occupants solely for their own personal, private use. There is, I realize, an institutional prejudice in this area (thatis, in those members comprising the various branches of government) which would assure that such laws would never come to pass. But assuming such laws to exist, the legislaturesand courts of this country would never sanction the invasion of the privacy of the home to enforce



## -15-the law against possession and use of alcohol and tobacco. Therewould be more than a little self interest to protect because the use of these drugs is so pervasive in our society. Regardless of the harm to society and individuals from the use of alcohol and tobacco, I too believe it to be unthinkable that we would ever tolerate the invasion of the privacy of the home to eradicate the evils of alcohol and tobacco. I believe the same "right of privacy" considerations should extend tomarijuana where it is possessed and used in the privacy of the home, for private, personal use. "Public"health does not demand that the home be invaded under these circumstances. The thrust of defendant's approach in the District Court and in this Courtwas that marijuana plants,while in the process of growing, and thus not in usable form to be ingested, were dangerous to no one. Accordingly, there could be no "compelling state interest" under the privacy provision of our constitution to seize the plants and prosecute one for growing the plants. Whoever was growing the plants however, can hardly be said to have been expressing just a normal American's curiosity as to how marijuana plants fared while growing under artificial lighting in the closet of a home. It is doubtful that this was the extent of the possessor's interest in the plants; rather, it is not unreasonable to assume that the active ingredients of the plants were at a later time, intended for human ingestion. I notemoreover, that the State adopted an equally simplistic legal approach to the problem of whether the marijuana plants should have been seized. The Statepresented no evidence in the trial court

as to the harmful effects of marijuana, but instead relied -16-exclusively on a legislative act criminalizing marijuana. Based on this act of criminalization,the State contended it had the right to use the entire criminal law enforcement arsenal at its disposal, including of course,the right to invade the privacy of a home. During the hearings on the defendant's motions, the prosecutor argued to the trial court: "Your Honor, Ibelieve the legislative acts have apresumption of validity, and operating under that presumption on November 5, 1977 law enforcement officials of Missoula,Montana prepared and submittedt3e Justice of the Peace Bill Monger an application for a searchwarrant. Evidently JudgeMonger agreed with the law enforcement officers and issued a search warrant in accordancewith the applicable statutes. Your Honor, Ido not believe that when we find a person inviolation of Montana law thatwe have to go up and show a compelling state interest in each and every criminal statute that has been deliberated and decided by the legislature,and has already been before the Supreme Court on severaloccasions." By this analysis, the Statewould have the courts equate a legislative enactment with a "compelling state interest" to override the protection guaranteed by the "rightof privacy" provision of our constitution. This interpretationwould mean that the legislature could indirectly determine the confines of the constitutional "rightof privacy" by merely enacting a law declaring an act or omission to be a crime. Thiswould effectively destroy thepower of the courts to interpret the meaning of the constitution. The legislature can, of course, recognize the rights of privacy through legislation,but it cannot restrict the right of privacy to any lesser extent than this Court iswilling to recognizeunder its constitutional duty to interpret the constitution. Notwithstanding the State's failure tomeet the fundamentaland underlying issue raised by the seizure ofmarijuana in the privacy of one's home, it appears that themajority has come dangerously close to adopting the State's position. In one breath the majority adopts with approval the various definitions and meanings of the right of privacy which have evolved over the years. But in the next breath, themajority misapplies these sameprinciples. Themajority first stated: "Wehave no quarrelwith this constitutional provision nor with the various authorities cited by the relator and amicus American Civil Liberties Union for the pronouncement that a person has thevalued and fundamental right to be left alone, free from governmental intrusion. [Citingauthority]; or that a man's home is his castle and the right of privacy there is a part of the constitutional guarantee of liberty and the pursuit of happiness [Citingcases]. We have also examined the other authorities cited by both parties and amici [Citing cases] and the other authorities cited in the briefs too numerous tomention here." Unfortunately, themajority failed to analyze these cases before coming to its conclusion as to their meaning and application to this case. Themajority again stated: "From these cases and our constitutional language certain principles of law emerge. The right of individualprivacy is a fundamentalconstitutional right expressly recognized as essential to thewell-being of our society. The constitutional guarantee of individual privacy is not absolute. Itmust be interpreted, construed and applied in the light of other constitutional guarantees and not in isolation. The right of individual privacy must yield to a compelling state interest. such compelling state interest exists where the state enforces its criminal laws for the benefit of and protection of 

### --- -- other fundamentalrights of 

### -- its citizens. "The com~ellinastate interest in this case

L 2 - 

### ---- lies in the protection of a citizen's home 

### --- - -. and contents from unlawful intrusion. Relator's argument that the compelling state interest must be found in statutes prohibiting the cultivation and sale of marijuana is nonsense. The officers' intrusion here was purely and simply to protect the home and its contents including discovery and apprehensi~n of the suspect. The purpose of the intrusionhad -- nothing to dowith enforcement of the --- -- marijuana laws."Protectionof a person's property is an 

### -- inalienable right guaranteed by our Constitution. Art. 11, Sec. 33, 1972Montana Constitution. This constitutional protection furnishes the compelling state interest to which the right of individualprivacy mustyield in this case. - --- "Accordingly we hold that the District Court was correct in denying dismissal of the charge against defendant for violation of constitutional prohibitions against unreasonable searches and seizures and the rightof privacy." (Emphasis added. Before discussing the basis of the majority's opinion

on the "rightof privacy", Imust state that it appears the majority has left for another day the determination of whether the right of privacy provision in the Montana Constitution isviolated by a seizure of marijuana in one's home where there is no evidence that it was intended for - other than private, personal use, and where the initial purpose for entry into the home was to seize themarijuana. I say this because themajority has focused its attention

on the lawful entry of the police officers into the home where the purpose for the initial entry was to look for

an intruder and to protect the defendant's property, and not for the seizure of the growing marijuana plants. But

even themajority rationale leaves something to be desired. It is true that upon the initial entry into defendant's home the officers were there to look for an intruder and at least ostensibly, to protect the defendant's property. Itwas after their entry into the home that they discovered the growing marijuana plants in the closet. But the officers did not then seize the marijuana plants. Rather,based on this evidence in "plain view" (oncethey had opened the closet doors) the officers left the home, applied for and obtained a searchwarrant, and then returned to defendant's home, entered, and seized themarijuana plants. Clearly,the only motive for reentry into the home was tc seize themarijuana plants, and perhaps to conduct an additional search fordrugs. In any event, they seized only the growing marijuana plants. Ibelieve that this reentry triggered the "rightof privacy" provision of our constitution. I emphasize however, that Ido not base the foundation of my dissent upon this reentry distinction. Whatever the case, it appears to me that themajority has not foreclosed a "rightof privacy" contentionwhere the initial purpose for going into the home was to seize marijuana being possessed only forprivate, personal use. As to the basis of the majority opinion Imust admit I ammore than a littleperplexed. First, the majority states that the State has a right to enforce its criminal laws, and possession of marijuana is a crime. The logical implication of this statement,although not expressly stated, is the State also has the right to use its enforcement tools of search and seizure to enter a private home to seize marijuana. Second, the Court holds that the State has a right to assert.a constitutional right belonging to the defendant, and therefore, under appropriate circumstances, enter his home to protect his property. Once inside, however, the State is free to observewhat there is to observe, and if there is evidence of criminal activities, itmay either seize the evidence then, or, as in this case, leave, obtain a searchwarrant, reenter the house, and seize the evidence. The constitutional provision (1972Mont. Const., Art. 11, §3), cited but not quoted by the majority for the principle that the police may assert defendant's constitutional rights to protect his property provides as follows: -20-"Allpersons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life'sbasic necessities, enjoying and defending their lives and liberties, acquiring,possessing and protecting property, and seeking their safety,health and happiness in all lawfulways. In enjoying these rights, all persons recognize corresponding responsibilities."

(Emphasisadded.) Presumably,the Court is referring to the defendant's inalienable right of "acquiring,possessing and protecting property 

# . .." But the irony here is that defendant at

no time asserted his right to the protection of his property from anyone or any source. Indeed, if he knew thatwas to be the approach of this Court in granting him his constitutional rights, I am sure he would gladly have waived that right. Itwould appear,moreover, to be a constitutional innovatfon of the highest magnitude that the police can assert a constitutional right that belongs to the defendant, and on that basis acquire evidence against him that he was growing marijuana plants in his home. I can only hope the majority does not reallymean what was stated in their opinion. If so, thiswould be one of the most dangerous precedents

ever enunciated by an appellate court. Notwithstanding these flaws, the real failure is that the majority has refused to come to gripswith the fundamental problem surrounding the criminalization and use ofmarijuana in relation to the police procedures used to eradicate thisproblem from our society. In doing so, the majority ignores the realities of life and continues to perpetuate a fundamentalhypocrisy in our society. As Imentioned earlier, the majority position does not consider that themarijuana plants were seized upon the reentry to the home when the only motive for the entry was to seize the plants. But neither does the opinion considera balancing of the basic interests involved in a determinationof the right of privacy to possess marijuana in one's own home, forprivate, personal use. Under the facts of this case, I see no compelling State interest to be servedby the seizureof themarijuanaplants. If, at the time they applied for the searchwarrant, the officers had evidence and provided it to themagistrate, that the marijuana was being used for other than personal use,perhaps Iwould not reach the same conclusion. Essential to a determination of this issue iswhether the privacy clause of our constitution,may,under certain circumstances,orwhere certain types of crimes are involved, impose additional limitations on the general requirements of probable cause to search for and seize evidence in the privacy of one's home. If strict search and seizure concepts

are applied without regard to the constitutional "rightof privacy",the seizurehere was lawful. Indeed,applying strict search and seizure concepts that issuewas foreclosed once this Court determined that the initial entry into the home was lawful. But the "rightof privacy" issuewas not foreclosed. The right to enter a private home to search for evidence of a murder cannot, for example,be equated with the entry into a private home to search for evidence that one is possessing marijuana for his personal use. Nor could it be equated with the entry of a home to obtain evidence of the possession of alcohol or tobacco used for personal use assuming the criminalization of these acts. The right of privacy provision of our constitution, 1972Mont. Const. Art. 11, 510,provides as follows: individual "The right of/privacy is essential to the well being of a free society and shall not be infringedwithout the showing of a compelling state interest."The search and seizure protections given to the residents of this State by 1972Mont. Const. Art. 11, S11,provide

as follows: "Thepeople shallbe secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall be issued without describing the place to be searched or the person or thing to be seized,orwithout prcbable cause, supported by oath or affirmation reduced towriting." The "rightof privacy" belongs to allMontana residents. In areaswhere the right attaches, it can be overcome only by proof of a "compelling state interest." The search and seizure provisicn is likewisenot a grant of power to the State. Rather, it is a recognition of rights which inhere in all Montana residents. This section restricts the power of the State to either search any place or arrest any person. It is consistent to conclude that these rightsmay, in certain circumstances,complement or supplement each other rather than be antagonistic to each other. In many situations the legitimate interests of the Statewill override any consideration of individualprivacy. On the other hand, in many situations the demands of privacy will override any claim of the State to intrude on that privacy. In search and seizure situations thismay well impose an additional burden upon the Statebefore property may be lawfully seized by intrusicn into the privacy of one's home. Themajority is correct in stating that the constitutional provisions involved must be "construed and applied in the light of other constitutional guarantees and not in isolation." But I believe that the "rightof privacy"provision of our constitution is a more naturalpartner with the search and seizureprovision in our constitution,that the "rightof privacy" provision iswith the right of the defendant toprotect his property, especially since themajority has so graciously allowed the police to assert defendant's constitutional right to protect his property. The "right of privacy" and search and seizureprohibitions and limitations are meant to protect the individual, not the State. It cannot be stated as an immutable principle that the existence of probable cause to search for or seize evidence,automatically converts into a compelling state interest that overcomes any claim to a right of privacy. This appears to be the holding of the Arizona Supreme Court in the case of Statev. Murphy (1977), 17Ariz. 57, 570 P.2d 1070. There the court determined that the right of the legislature tomake marijuana possession illegal automatically precluded any reliance by the defendant on the right of privacy provision of the Arizona Constitution. While not expressly soholding, it appears that the decision of this Court comesdangerously close to the same holding. This simplistic approach gives no meaning at all to the "rightof privacy.

### " It is a dangerous precedent to hold that the existence of a criminal law automatically converts into a "compelling state interest"which overcomes any claim to a "rightof privacy." The effect of it is to let the legislature define and limit the application of the "right of privacy." All the legislatureneed do to erode the right of privacy is to enact a criminal statute declaring a certain act or omission to be criminal, and by that very act a person is forever foreclosed from asserting a "right of privacy" claim as a result of an attempt to enforce that law. This is judicial abdication at itsworst. -24-Where a right of privacy is claimed which arises out a of conduct taking place within/personlshome, it is proper to look at the nature of the alleged crime before a determination can be made as to whether the state could lawfully enter the home to obtain evidence of that crime. Implicit in this approach is the question of whether 

### - all criminal laws can be constitutionally enforced with the samevigor and with the same law enforcement arsenal at the State's disposal,where the activity which is taking place is in the privacy of a home. In certain kinds of cases probable

cause to search or seize evidence possessed in the privacy of one's homemay well be subject to an additional requirement that one's right of privacy should be given more protection than the right of the State to invade the home in order to search for or seize the evidence. On the other hand, the right of privacy provision should not be so interpreted so as to strip the State in all cases of its traditional methods of gathering evidence of crime,which includes the search for and seizure of evidence inside the privacy of one's home. As in all cases, a balancemust be struck between the rights of the individual and the rights of the State. Where there is doubt however, the balance must be struck in favor of the individual. Clearly,when the evidence as to the alleged harmfulness of marijuana is considered in conjunction with the fundamentalprotection given to the home as a place historically honored as giving rise to the right of privacy, the State cannot prove a compelling State interest. It isnecessary to consider the location of the person at the time which gives rise to the claimed right of privacy, and the kind of activity engaged inwhich is claimed -25-to be protected by the right of privacy. Needless to say,neither of these are absolutes. There is a slightly different twist to this case because the defendantwas not physically in his home at the time the officers entered and discovered the marijuana or at the time they returned and seized the marijuana pursuant to a searchwarrant. But the right of privacy would be a hollow right indeed if one could assert this right only if he was actually at home at the time of the intrusion. In the context of this case, the question is whether therewas a compelling state interest for the State to use its powers of search and seizure to invade the privacy of defendant's home to seize marijuana,where therewas no preexisting evidence that itwas being possessed in the home for other than personal,private use. Few in this State or for thatmatter, in this country would deny that if there is any place where a right of privacy should have recognition it is in one's home. It is the traditional refuge and sanctuary of a democratic society. Needless to say, the individualdignity of each person, together with a recognition that theremust be a place allowing each person "tobe",was one of the impelling

reasons for imposing constitutional limitations in the federaland state constitutionson the right of the government to search for and seize evidence. This Court has recognized the longstanding common law recognition of the sanctuary of the home. InWelsh v. Roehm (1952), 125 Mont. 517, 523, 241 P.2d 816, this Court stated: "The common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands."In Statev. Brecht (1971),157Mont. 264, 270, 485 P.2d 47, this Court quoted this language in Welsh, and also expressed some idea of what interest inside the home was meant to be protected:

11 I

# . .

# . The "rightof privacy" is embraced within the absolute rights of personal security and personal liberty

# ... "Thebasis of the "right

## of privacy" is the -- "rightto be let alone" and it is "a 

### --- - part of the right of liberty and pursuits 

### --- of happiness."'" - (Emphasisadded.) And of course, 1972Mont. Const. Art. 11, S3, relied on by the majority for another principle (misapplied)and previously quoted in this dissent, gives some indication of the scope of personal freedom intended. In the recent case of Lucianov. Ren and State of Montana (1979)

## , Mont

# . , 589 P.2d 1005, 36 St.Rep. 179, (ina case not involving a claim of right of privacy),

we quoted with approval from Union Pac. R. Co. v. Botsford

(1891),141U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734: "Noright is held more sacred, or is more carefully guarded,by common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others,unless by clear and unquestionable authority of law." One of the earliest statements of the substantive content of the right of privacy (as opposed to the location where that right is enjoyed) is contained in a dissenting opinion by Justice Brandeis, in the case of Olmstead

### v. United States (1928),277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944,where he said: 

# ".

.

# . Themakers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance ofman's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found inmaterial things.They sought to protect Americans in their belief; their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilizedman." 277 U at 478. (Emphasisadded.) Themajority opinion in the instant case seemingly cited this statement in Olmstead with approval. The language of this dissent was incorporated into a majority opinion in the case of Stanley v. Georgia (1969), 394U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, where the Supreme Court held that "themere private possession of obscene matter cannot constitutionallybe made a crime." 394U.S. at 559. The court further stated in Stanley: 

# ".

.

# . Georgia asserts that exposure to obscenematerials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little 

### -- empirical basis for that assertion

# . .

# . -- Given the present state of knowledge, 

### -- the Statemay nomore prohibitmere possession of obscenematter on the ground that itmay lead to antisocial conduct than itmay prohibit possession of chemistry books on the ground that theymay lead to the manufacture of homemade spirits." 394U.S. at 566-67. (Emphasis added.) The right to possess marijuana can hardly be placed on the same scale as our first amendment rights. Nonetheless, from Stanley there are important lessons to be learned, particularly if the constitutional "rightof privacy" in our State is to be given any substantive effect. A private act occurring within the privacy of the home may be constitutionally protected; but if the same activity becomes public itmay be the subject of a criminal prosecution. For example, defendant in Stanleywas convicted under a Georgia statute which criminalized themere private possession of obscene material; however, the United States Supreme Court held that the State did not have the right to criminalizethe "privatepossession of obscenematter." On the other hand, if Stanley had been running a commercial operation, presumably in or out of the home, the State could constitutionally criminalize such conduct. Just as important,the Court looked behind the statute criminalizingprivate possession of obscenematerial and did not accept the State's bald "assertion that exposure to obscenematerials may lead to deviant sexualbehavior or crimes of sexualviolence." The Court concluded that there was "littleempirical basis" for this emotional rhetoric. The Court emphasized that "given the present state of knowledge

# . . ."of the effects of possessing these materials, Stanley's conduct within the home could not be criminalized. The Stanley rationale is plainly analogous to the criminalization of adult possession of marijuana, within the home, forprivate, personal use. Given the explicit "right of privacy"protection guaranteed by our own constitution, the State is required to show an "empiricalbasis" founded on the "presentstate of knowledge" that the "public"health would be affected,before a "compelling state interest" would be shown. The facts ("presentstate of knowledge") as to use ofmarijuana are such that the State cannotmeet the "compelling state interest"requirement of our constitution to justify invasion of the home. TheAlaska Supreme Court in Ravin v. Alaska (Alaska 1975), 537 P.2d 494, in interpreting its own right to privacy provision in the state constitution,held that the legislature could not constitutionally criminalize possession ofmarijuana possessed in the privacy of the home for personal, private use. The home as a prime center for -29-the existence of a right of privacy, together with a record barren of any "public"health dangers posed by the use of marijuana, impelled the Court to tip the scales in favor of the individual. What the Ravin court said on the question of the home in relation to the right of privacy, is equally applicable to the situation here. The court first discussed the impact of decisions of the United States SupremeCourt where the privacy of the home was a substantial factor: 

# ".

.

# . Thus, Ravin's right to privacy contentions are not susceptible to disposition solely in terms of answering the question whether there is a general fundamental constitutional right to possess or smokemarijuana. This leads us to a more detailed ---- examination of the ri~ht to ~rivacv and ---- .'- the relevancy of where the right is exercised =one end of the scaleofthe scope of the ----- -- -- right to privacy is possession or ingestion in theindividual's home. If there is 

### any -- - - - area of human activity to which a right -- to privacy pertainsmorethan

## anyother, - -- it is the home. The importance of the home ---- has been amply demonstrated in constitutional law. ~rnong- the enumerated rights in the federal Bill of Rights are the guarantee against quartering of troops in a private house in peacetime (Third Amendment) and the right to be 'secure in their 

# ... houses 

# . . . against unreasonable searches and seizures

# .. .' (Fourth Amendment). The First Amendment has been held to protect the right to 'privacy and freedom of association in the home' [citingMoreno v. United States Dep't. of Agriculture, 345 F.Supp. 310, 314 (D.C.C. 1972)Aff'd 415U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)l. The FifthAmendment has been described as providing protection against all government invasions 'of the sanctity of a man's home and the privacies of life.' [Boydv. U.S., 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746, 751 (1886)l. The protection of the right to receive birth control information in Griswold was predicated on the sanctity of the marriage relationship and the harm to this fundamental area of privacy if police were allowed to 'search the sacred precincts of marital bedrooms.' [381U.S. at 486, 85 S.Ct. at 1682, 14 L.Ed.2d at 5161. And in Stanley 

### v. Georgia, the Court emphasized the home as the situs of protected 'private activities.' [394U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 5491. The right to receive information and ideas was found in Stanley to take on an added dimension preciselybecause itwas a prosecution forpossession in the home: 'For also fundamental is the right to be free,except in very limited circumstances, fromunwanted governmental intrusions into one's privacy.' [394U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 5491. In a later case, the Supreme Court noted that Stanley was not based on the notion that the obscene matter was itself protected by a constitutional penumbra of privacy, but ratherwas a 'reaffirmation that 'aman's home is his castle.'" [Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 66, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446, 462.1. At the same time the Court noted, 'theConstitution extends special safeguards to the privacy of the home, just as it protects other specialprivacy rights such as those of marriage, procreation,motherhood, child rearing,and education.' [U.S. v. Orito (19731, 413 U.S. 139, 142, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513, 5171. And as the Supreme Court --- pointed out, there exists a 'myriad'of activities whichmay -- be lawfully conductedwithinthe privacy and confines of the home, but may be --- 

### - prohibited in public. [U.S. v. Orito (1973)~ 413 U.S. 139,142-143, 93 S.Ct. 2674, 37 L.Ed.2d 513, 5181

# ". Ravin, 537- 

### I?. 2d at 502-03. (Emphasisadded.) But theAlaska Supreme Court did not rest solely

on those cases decided by the United States Supreme Court which focused to a large extent on the sanctity and privacy of the home. The Court also stated with regard to its

own laws: "InAlaska we have also recognized the distinctive nature of the home as a place where the individual'sprivacy receives special protection. This court has consistently recognized that the home is constitutionally protected fromunreasonable searches and seizures, reasoning that the home itself retains a protected status under the FourthAmendment and Alaska's constitution distinct from that of the occupant'sperson. The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the home. Such a reading is consonant with the character of life inAlaska. Our territory and now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is not virtually unattainable in many of our sister states.""The home, then, carries with it associations and meanings which make it particularly important as the situsof privacy. Privacy in the home is a fundamentalright,under both the federal and Alaska constitutions

# . . ." 537 P.2d at 503-504. We can say no less about the laws of our own State. The "rightof privacy" provision in our own constitution which can be overcome only by a "compelling state interest", is one of the strongest in the nation. No onewould doubt that the greatest protection under this right should be in the privacy of the home. Our former and present constitutionalprovisions against unreasonable searches and seizureshas particular application to the home. The decisions of this Court, supra,have long recognized the special statusof the home. The examples are toomany to set forth situations where legislative enactments of this State attach special significanceand protection for the home. And the statementof the United States Supreme Court in U.S. v. Orito (1973),413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513,has particular relevance to the laws of this State which have already been enacted: 

# ".

. . It ishardly necessary to catalog themyriad activities thatmay be lawfully conducted within the privacy and confines of the home, but may be prohibited in public. 

# . ." 413 U.S. at 142-43, 93 S.Ct. 2674, 37 L.Ed.2d at 518. It is these considerations of privacy that influenced the court in Ravin to look closely into the evidentiary justification for the criminalization of marijuana where it ispossessed in a "purelypersonal, non-commercial context in the home 

# .

# . ." 537 P.2d at 504. The Court adopted a standard by which the evidence is to be judged where it is possessed in the privacy of the home: 

# ".

..We do not mean by this that a person may do anything at anytime as long as the activity takes place within a person's home.There are two important limitations on this facet of the right to privacy. First, we agree with the Supreme Court of the United States, which has strictly limited the Stanley guarantee to possession for purely private, noncommercial use in the home. And secondly,we think this right must yieldwhen -- it interferes - in - a serious manner with the health, safety, rights -- and privileges 

### - of others --- or with the public welfare. No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private. That is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character,and can be made to yield when an appropriatepublic need is demonstrated. "Thuswe 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, noncommercial context in the home unless 

### - the state can meet its substantialburden and 

### --- - show that proscription of possession of 

### -- marijuana ---- in the home issupportable

## by achievement of a legitimate state interest." 537 P.2d at 

### 5047 (Emphasisadded.) The Court then set forth what the scope of its inquiry should be as regards the possession of marijuana in the home for personal, private use: "This leads us to the second facet of our inquiry, namely,whether the State has demonstrated sufficient justification for the prohibition of possession of marijuana in general in the interest of public welfare; and further,whether the State has met the greater burden of showing a close and substantial relationship between the public welfare and control of ingestion or possession ofmarijuana in the home forpersonal use." 537 P.2d at 504. The Ravin court relied extensively, though not exclusively,on the report to Congress of the National Commission on Marijuana, submitted in 1972. The Commission

was chaired by former Pennsylvania Governor Raymond R. Shafer,and was also composed of fourmedical doctors, two congressnan and two senators. The report was entitled: the Marijuana: A - Signal 

### - of Misunderstanding,/E'lrst Report of The National Commission onMarijuana and Drug Abuse, -- 

### - -- March 1972. The Ravin court did not ignore the evidence and conclusionspresented to the United States Congress, and neither should this Court ignore this evidence. The Commission reported to Congress on the question of medical and health data, possible progress to the use of hard drugs because of the use of marijuana, the danger to public safety because of the use of marijuana, and in general, concerning the public policy considerations in using the criminal law to the fullest extent in enforcing the laws against the possession of marijuana. I set forth some of the essential findings and conclusions. The Commission stated in relation to medical and health data: 

# ".



# . .[Tlhemost notable statement that can be made about the vast majority of marijuana users--experimenters and intermittentusers--is that they are essentially indistinguishable from their non-marijuana using peers by any fundamental criterion other than their marijuana use."

(P. 41.) 

# ".

. . [Flromwhat 

### is now known about the effects of marijuana, its use at the present level does not constitute a major threat to public health." (p. 90.) 

# ".

. .[N]o conclusive evidence of any physical damage,disturbances of bodily processes or proven human fatalities attributable solely to even very high doses of marijuana." (pp. 56-57.) 

# ".

. . [Allthougha number of studieshave been performed, at present no reliable evidence exists indicating that marijuana causes genetic defects inman." (p. 84.)

# ".

. . [N] o objective evidence of specific pathology of brain tissue has been documented. This fact contrasts sharplywith the wellestablished brain damage of chronic alcoholism."

(P. 85.) The Commission's finding concerning possible progression to the use of hard drugs because of the use of marijuana

were as follows: 

# ".

. . [Mlarijuanause per se does not dictatewhether other drugs will be used; nor does it determine the rate of progression, if and when it occurs,or which drug might be used." (pp. 88-89.) 

# ".

.. [Tlhefact should be emphasized that the overwhelmingmajority of users do not progress to other drugs." (p. 87.) And concerning the danger to public safety because of the use ofmarijuana, the Commission stated: 

# ".

. . [Nleitherthe marijuana user nor the drug itself can be said to constitutea danger to public safety." (p. 78.) 

# ".



# . . [Iln sum, theweight of the evidence is that marijuana does not causeviolent or aggressivebehavior." (p. 73.) The general public policy considerations of using the criminal law to the fullest extent in enforcing laws against thepossession ofmarijuana were stated as follows: "Onthe basis of this evaluationwe believe that the criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of thedrug is not great enough to justify intrusion by the criminal law into private behavior, a step our society takes only with the greatest reluctance." (p. 140.) Indeed, the Commission concludes that use of the criminal law arouses great suspicions about the integrity of the criminalprocess:

# ".

. [Oltherdisturbing consequences of laws proscribing possession for personal use are the techniques required to enforce them. Possession of marijuana is generally a private behavior; in order to find it, the police many timesmust operate on the edge of constitutional limitations. Arrests without probable cause, illegal searchesand selective enforcement occur often enough to arouse concern about the integrity of the criminalprocess." (At page 145.) Moreover, there aremany other costs of enforcing the marijuanapossession lawswhich deplete the resources of the state, such as clogged judicial caiendars, social costs of criminalizing large numbers of users,particularly young people, and misallocation of enforcement resources.

(Id. at page 114.) Indeed, the Commission concluded that this process of enforcement of the criminal laws encourages disrespect for the law,by the young and by the law enforcement personnelwhomust enforce the laws: "The final costs of the possession laws is the disrespect which the laws and their enforcement engender in the young. Our youth cannotunderstand why society chooses to criminalize their behaviorwith so little visible ill-effect or adverse social impact,particularly when somany members of the law enforcement community also question the same." (Id. at page 145.) Finally, the Commission found that the interests of privacy played a largepart in its final recommendations: "[Wle are necessarily influenced by the high place traditionally occupied by the value of privacy in our constitutional scheme. Accordinglywe 

### -believe that government must show a compelling reason 

### --- to justify invasion of the home in order - ---- to prevent personal -- use ofmarijuana. 

## We find little in marijuana's effects or in its social impacts to support such a determination. Legislators-enacting prohibition did not find such a compelling ----- - son fortyyears aqo; and we do not rea! 

## -- - --7- find the situation a& more compelling 

### -- formarijuana today. (rat page 142.) (Emphasisadded.) The problems inherent in prosecuting for possession ofmarijuana were echoed by President Carter in a White House statement he made onAugust 2, 1977:"Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself; and where they are, they should be changed. Nowhere is thismore clear than in the laws against possession of marijuana in private forpersonal use. "There'snot a federalprosecutor in the United States today who would prosecute a case of possession an ounce ofmarijuana or less." TheAmerican Medical Association and the American Bar Association issued a rare joint press release on November 13, 1977,praising this statement made by President Carter: "We believe the time has come to liberalize laws regarding the possession of marijuana forpersonal use. In toomany states, statutes exact punishment that far exceeds the crime. "We agree with President Carterwho showed a humane attitude in asking that the possession of insignificant amounts for personal use should not subject the user to criminal charges."

Indeed, a great many organizationshave now called for the decriminalization of insignificant amounts of marijuana for personal use. Those organizations include: National Council of Churches; National Commission on Marijuana and Drug Abuse (theShafer Commission quoted at lengthherein); National Conference of Commissioners

on Uniform State Laws;American Public Health Association; National Advisory Commission on Criminal Justice Standards and Goals; Consumers Union, publishers of Consumer Reports; National Education Association; Canadian Commission of Inquiry into theNon-Medical Use of Drugs (LeDain Commission); John Finlator,retired Deputy Director,U.S. Bureau of Narcotics and Dangerous Drugs; Official State Study Commissions in the states of California, Illinois, MaineMassachusetts, Michigan, New Jersey, Pennsylvania, Virginia and Wisconsin; Dr. Robert L. DuPont, Director, National Institute on Drug Abuse; National Association for Mental Health;American Academy of Pediatrics;and the American Academy of Family Physicians. Apparently the increased public awareness and education on themarijuana issue has had its impact on the legislatures of some states. Beginning with Oregon in 1973, ten states have essentially stopped arresting marijuana users: Alaska: Alaska Stat. 517.12.100; California: Health and Safety Code, §I1357 (West); Colorado: Colo. Rev. Stat. 812-22-413;Maine: Me. Rev. Stat. Title 22, S2383. Mississippi: - Miss. Code Annot. S41-29-139;Minnesota: Minn. Stat. 5152.15; New York: -- Penal Law S221.05 (McKinney);North Carolina: N.C. Gen. Stat. S90-113.14; Ohio: Rev. Code Annot. S2925.11 (Page); Oregon: Ore. Rev. Stat. S475.992. I am fully aware that the legislature of this state is not compelled to follow the lead of these states in decriminalizing small amounts of marijuana. But the legislative actions of these statesareat least an indication that they do not regard the possession of marijuana for personal, private use, to be such a great danger to public health and safety as to call for its eradication by the Statewith the entire arsenal of enforcement tools at its disposal. But regardless of what the legislature does, it is the duty of this Court, in the context of the home, to give fullprotection under the "right of privacy" provision of our Constitution, adults who possess marijuana in the privacy of their homes for personal, private use. A failure to do so, based on the evidence thatwe n have to deal with, is a mockery of that very principle of "right of privacy".The Alaska Supreme Court in Ravin, supra, and the Michigan Supreme Court in Peoplev. Sinclair (1972),194 N.W.2d 878,have set forth the evidence in telling detail concerning the use and effects of marijuana on its users. Each of these courts has concluded that the effects of alcohol are far more detrimental to their users, and the toll on society is far greater than is the effects of marijuana. We cannot ignore this evidence, and do so only at the risk of alienating thousands and thousands of citizens of this statewho, but for their use of marijuana, are as law abiding as the remaining citizens or residents of this state. In Sinclair, the Court concluded that "itcannotbe doubted that the judiciary has the power to determine the true state of factsupon which a law isbased." Sinclair, 194N.W.2d at 881, citing Brown v. Board of Education (1954), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. Accordingly, the evidentiary basis for the enactment of legislation could not be ignored. The question before the Court in Sinclairwas whether Sinclair had been denied equal protection of the law. But the Court in Ravin also concluded it had a duty to review the evidentiary basis for the enactment of the marijuana laws, even though the primary issue

was not equalprotection of the law,but rather, the right of privacy. The Court adopted a two-fold test. First, a determination of whether or not a law or regulation has violated in individual's right of privacy. Second, if the right of privacy has been violated, "wewill require that the relationship between means and ends be notmerely reasonable but close and substantial." Ravin, 537 P.2d at 498. As to the second test, itmatters not that the test in the -39-context of the Montana Constitution and the facts of this case be a reasonable relationship between means and ends or the stronger requirement of a close and substantial relationship between means and ends. Clearly, the right of privacy under our Constitution would be violated here under either test. Nonetheless, I do not believe that this State can in good conscience adopt a less rigorous standard than that adopted in Ravin, for our Constitution specifically provides that the "rightof privacy" can only be overcome by a "compelling state interest." (Art. 11, 810, 1972Mont. Const., supra.) The Courts in Sinclair and Ravin, then set forth the salient and relevant evidence relating to the use of marijuana. I feel compelled to do the same, and shall do

so by quoting extensively from the Sinclairand Ravin decisions. In addition to extensive trial testimony from expert witnesses concerning the effects of using marijuana, the courts in Sinclair and Ravin relied on the available literature and national reportswhich studied at great length and in great depth, themany questions relating tomarijuana

use. In Sinclair, the Court relied on the following books and reports: InterimReport of the Canadian Government Commission of Inquiry, TheNon-Medical Use of Drugs (Penguin ed. 1970); President'sCommission on Law Enforcement and Administration Of Justice,Task Force Report: Drunkenness

(1967); L. Grinspoon,M.D. Marijuana Reconsidered (Bantam Book Ed. 1971); J. S. Kaplan: The New Prohibition (Pocket Book Ed. 1971); the court took judicial notice of the evidence introduced and the findings of factmade by the -40-trial court in the case of People v. Lorentzen (Mich. 1972), 194N.W.2d 827; R. Bonnie & C. Whitebread 11, The Forbidden FruitAnd The Tree Of Knowledge: An Inquiry Into The Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 971 (1970). In addition, the Court also relied

on the facts found by the trial court in Sinclair,pursuant to a stipulation of factual accuracy entered into by counsel for defendant and counsel for the State of Michigan. In Ravin, the Court listed the information it had examined: "Among the works we have examined in addition to the testimony below are the following: Marihuana: A Signal of Misunderstanding, the First Report of the National Commission on Marihuana and Drug Abuse (March 1972); Drug Use in America: Problem in Perspective, the Second Report of the National Commission on Marijuana and Drug Abuse (March 1973); Drug Use in Anchorage, Alaska, 223 J.Arn. Med.Asstn.647 (1971);G. Nahas, Marihuaha: Deceptive Weed (1973); Nahas et al, Inhibition of Cellular Mediated Immunity in Marihuana Smokers, 183 Science 419 (1974);L. Grinspoon, Marihuana Reconsidered (1971);Hearings before the U.S. Senate Subcommitteeon Internal Security,May 1974;Nahas & Greenwood, The First Report of the National Commission on Marihuana (1972): Signal of Misunderstanding or Exercise in Ambiguity, draft of article to be published in Bulletin of N. Y. Academy of Medicine; Marihuana and Health: Fourth Annual Report to the U.S. Congress from the Secretary of Health, Education, and Welfare

(1974); Silverstein & Tessin,Normal Skin Test Responses in Chronic Marihuana Users, 186 Science 740 (1974);Marihuana: The Grass May No Longer Be Greener, 184 Science 683

(1974);Marihuana (11): Does it Damage the Brain?, 185 Science 775 (1974); Depression of Plasma Testosterone LevelsAfter Chronic Intensive Marihuana Use, 200N.Engl.J.Med. 872 (1974): Plasma Testosterone Levels Before During and After Chronic Marihuana Smoking, 291N.Engl.J.Med. 1051 (1974);Marijuana Survey-State of Oregon, Drug Abuse Council

(1974)

# ." Ravin, 537 P.2d at 504,n. 43. THE SOURCE OF AND CHEMICALMAKE-UP OF MARIJUANA: -- 

### - In Sinclair, the Court stated:"Despite our lack of complete knowledge though,we do have sufficient scientific 

### --- knowledge to categorize drugs according to their relative level of danger to both the --- individual and society. Proceeding to a comparison ofmarijuana with other mindaltering drugs,we findmarijuana is a euphoria producing mind altering drug, whose effects are generally obtained by smoking,but can also be obtained by oral injestion of the drug, usually mixed with food or drinks. Coming from the hemp plant, cannabis sativa, the psychoactive strength of the drug varies greatlywith the part of the plant used, quality of the seed stock, and the growing conditions. "The psychoactive ingredient of cannabis sativahas been isolated as two isomers of tetrahydrocannabinol (THC)althoughadditional active ingredients of cannabis sativamay be discovered and isolated in the future. Thus the strength of any given amount of marijuana dependsprimarily on the amount of THC it contains. The ordinary street form of marijuana, commonly available and used in the United States, is composed of the leaves and flower clustersof the female plant, which are dried and crushed to make up the variable strengthmixture. The resin from the flowering tops of the mature female plants isknown as hashish (charasin India) and is currently the strongest form of the naturally occurring drug because it contains the highest concentration of THC. Hashish is asmuch as eight times as strong as ordinarymarijuana." "Considerationof the scientifically observed 

### -- physical and psycho-motor effects ofmarijuana indicates that it is overall, the least 

### --- -- dangerousmind-altering drug." Sinclair, 194N.W.2d at 882. (Emphasisadded.) The chemical make-up of marijuana was also set forth in Ravin, 537 P.2d at 505. THE INCIDENCE OF USE OF MARIJUANAAND THENUMBER OF ARRESTS: 

### --- -- - In Ravin, the Court discussed the national statistics

as of 1973 for the number of Americans who had used marijuana at least once: "According to the figures published by the National Commission on Marijuana and Drug Abuse in 1973,an estimated 26million Americans have used marijuana at least once. The incidence generally outs across social and economic classes, though use is greatest among young persons (55%of 18-21year-oldshave used it). Only about 2% of the adults who have used itwere classified by the National Commission as 'heavyusers' (nore than once daily 

# .

# . ." Ravin, 537 P.2d at 505. As to the number of arrests formarijuana in recent years, the Ravin Court stated: "Thenumber of persons arrested formarijuana possession has climbed steeply in recent years. In 1973,over 400,000 marijuana arrests occurred, a 43% rise over the previous year. It should also be noted that 81%of persons arrested formarijuana related crimes have never been convicted of any crime in the past, and 91%have never been convicted of a drug related crime." Ravin, 537 P.2d at 508. These statistics clearlydemonstrate that marijuana users can hardly be classified as criminals by any stretch of the imagination. The unfairness of this situation is further illustratedby the fact that in this State alcoholismor drunkenness is now regarded as a disease and the direction to law enforcement officerswho find people in a drunken condition is to treat them as needing medical help, not as needing incarceration in a jail. Section 80-2701et seq. thru 80-2725,R.C.M. 1947,now section 53-24-101 through 53-24-108MCA. COMPARISON OF THE DANGERS OF USING MARIJUANA AS OPPOSED - - TO -OPIATES

## ORALCOHOL: - In Sinclair, the available scientific evidence led the Court to conclude that the use of alcohol ismore dangerous than is the use of marijuana: "Comparison of the effects ofmarijuana use on both the individual and society with the effects of other drug use demonstrates not only that there is no rational basis for classifyingwith the 'hard narcotics', but, also, that there is not even a rational 

### -- ---- basis for treating marijuana as a more -- - dangerous drug than alcohol. This is not to 

### -- say that our scientific knowledge concerning any of themind-altering drugs is at all complete. It is not. Even our society'svastexperience with themind-altering effects of alcohol has not led to complete scientific knowledgeof that drug, as the Canadian Government Commission of Inquiry pointed out: "'Little isknown as to the specific mechanism by which alcohol produces its psycho-pharmacological action. As with most drugs, alcohol effects, especially those resulting from low ormoderate amounts,depend to a large extent on the individual and the situation inwhich the drinking occurs. A drink or twomay produce drowsiness and lethargy in some instances, while the same quantitymight lead to increased activity and psychological stimulation in another individual,or in the same person in different circumstances. Furthermore,a dosewhich is initially stimulating may later produce sedation.'" Sinclair, 194N.W.2d at 883. (Emphasis added. In Sinclair, the Court set forth the role that alcoholplays in producing acute physical and mental problems, and even death, as well as leading to violent criminalbehavior: "Both



### -- the opiates 

### - and alcohol provide a dramatic contrast ----- to the miphysical harmfulness ofmarijuana. With the opiates, hiqh levels

### of tolerance develop, severe ph;sical addiction results fromrepeated use, and deaths result from repeated use, and deaths resulting from overdosage also occur. Occasional socialuse of alcohol inmoderate dosage as a mind-altering drug has few deleteriousphysical consequences. However, tolerance doesdevelop in alcohol use and the drug is subject to a great, acute and chronic abuse. Acute alcohol abuse can lead to death from overdosage. In addition, chronic alcohol abuse leads to alcoholismwhere a clearwithdrawal syndrome is observable (an easily discerniblephysical shaking and later delirium tremens), and death of brain cells, mental deterioration and cirrhosis of the livermay occur. "Damaging effects of alcohol on psychomotor coordination are sowell known as to need no documentation. The President's Commission on Law Enforcement and Administration of Justice,Task Force Report: Drunkenness, commenting on alcohol,observed that (p. 39): "'There is probably no other area in the field of drug research and related dangerous behaviorwhere the role of a drug as aprecipitating factor in dangerousbehavior is SO clear.'" Sinclair, 194N.W.2d at 883-884. (Emphasisadded.) The Court in Sinclair also took notice of a Special Message to theMichigan Legislature in 1971,wherein the Michigan Governor "recognizedthat the present classification of marijuana with the opiates is irrational" but also "providedan illuminating comment on the relative danger of alcohol." Sinclair, 194N.W.2d at 886. The pertinent parts of the Governor's message were quoted by the Court: "'As public officials,we must face squarely the need for amajor revision of our laws dealing with marijuana. The hypocrisy of our present law,which falsely classifies marijuana - as - a narcotic, affects the credibility of our entire drug abuse program. Recent federal legislation and the passage of local marijuana ordinances give new urgency in this controversial area. 

# . .' "'Alcohol continues --- to be a larger problem than druss. It accounts for more broken

d -- homes,wastedlives, accidental -- deaths, and greater expense for society than any 

### --- drug. It is an establiscd fact that alcohol can destroy brain tissue and cause cirrhosis of the liver which ultimately produces death. A significant portion of crime is committed by people under the influence of alcohol and alcohol-related problems are estimated to account for 15% to 25% of our welfare costs.'" Sinclair, 194N.W.2d at 886. (Emphasisadded.) The Court in Ravin noted specifically that all available evidence indicates that alcohol is a farmore dangerous drug than marijuana: 

# ".

. . The state is under no obligation to allow otherwise 'private

### ' activitywhich will result in numbers of people becoming public charges or otherwise burdening the public welfare. But we do not find that such a situation exists today regarding marijuana. It appears that effects of marijuana -- onthe individual 

### -- 

# are notrious enough to justify widespread concern, as least ascomparedwith the far more dangerous ---- effectsof alcohol,barbiturates and amphetamines. Moreover, the current patterns of use in the United States are not such aswould warrant concern that in the future consumption patterns are likely to change." Ravin, 537 P.2d at 509-510. THE USE OF MARIJUANA DOESNOT LEAD ONE TO COMMIT CRIMES 

### --- OF VIOLENCE, IN

## STARKCONTRASTTOTHEKNOWN PROPENSITIES 

### - -- --- OF ALCOHOL: - It is a common understanding that marijuana has a direct connection to the propensity of users to commit crimes ofviolence. In Sinclair and in Ravin the courts concluded that evidence did not support this assumption, but noted further that there is a direct relationship between the use of alcohol and the commission of crimes of violence: In Sinclair the Court stated: "There isno reliable scientific evidence demonstrating that chronic psychosis can be caused by marijuana use in dramatic contrast to the American experience with alcohol. The argument thatmarijuana use causes or contributes tc assaultive crime is now largely discredited. Again, by contrast,considerable evidence points to a substantial connection between alcohol use and commission of violent crimes." Sinclair, 194N.W.2d at 885. And, quoting from the President'sTask Force Report: "President'sCommission on Law Enforcement and Administration of Justice,Task Force Report: Drunkenness (1967),p. 41: 'On the basis of the present data one can say that there is a strong link between alcohol and homicide and that the presumption is that alcohol plays a causal role as one of the necessary and precipitating elements of violence.'" Sinclair, 194N.W.2d at 885, n. 31. In Ravin. the Court summarized the available evidence

as follows: "Theexperts generally agree that the early widely-held belief thatmarijuana use directly causes criminal behavior, and particularly violent, aggressive behavior, has no validity. On the contrary,theNational Commission found indications thatmarijuana inhibits 'the expression of aggressive impulses by pacifying the user, interfering with muscle coordination, reducing psychomotor activities and generally producinq states of drowsiness, lethargy, - - timidity and passivity.'" Ravin, 537 P.2d at 507, (quotingMarijuana: A Signal of Misunderstanding, The First Report of the National Commission on Marijuana and Drug Abuse (March 1972), 70-71.)THE RELATIONSHIP BETWEEN USE OF MARIJUANA AND PROGRESSION 

### -- ~USE OF HARD DRUGS: ---- It is also a commonmisunderstanding that marijuana

use leadsone down the path to the use of hard drugs. In Sinclair and Ravin, the Courts discussed and disposed of this misconception. In Sinclair, the Court stated: "Finally,the 'stepping stone argument' thatmarijuana use leads to use of 'hard narcotics' has no scientificbasis. The President's Commission on Law Enforcement and Administration of Justice,Task Force Report: Narcotics and Drug Abuse, found at pp. 13-14: "'The charge thatmarijuana "leads"to the use of addicting drugs needs to be critically examined. There is evidence that amajority of the heroin users who come to the attention of public authorities have, in fact,had some prior experience with marihuana. But this does notmean that one leads to the other in the sense thatmarijuana has an intrinsic quality that creates a heroin liability. There are toomany marihuana users who do not graduate to heroin, and toomany heroin addicts with no knownprior marihuana use, to support such a theory. Moreover there -- is no scientificbasis for such a theory. The --- basic text on pharmacology, ~oodman and Gilman, The Pharmacological

### -- Basis of Therapeutics (Macmillan1960) states quite explicitly that marihuana habituation does not lead to the use of heroin.'" Sinclair, 194N.W.2d at 885. (Emphasisin original.) In Ravin, the Court stated: 

# ".



# . .Moreover, - the Commission 

### -- and most other authorities 

### -- agree that there is little validity -- to the theory thatmarijuana use leads to use of more potent and dangerous 

### ---- drugs. Although it has been stated that themore heavily a user smokes marijuana, the greater the probability that he has used orwill use other drugs, 'it has been suggested that such use is related to "drug use proneness" and involvement in drug subcultures rather than to the characteristics of cannabis, per se.

### ' " Ravin, 537 P.2d at 507. (Emphasis added.) THENEED FOR MEDICAL ATTENTION AS A RESULT OF THE USE --- -- 

### --- OF MARIJUANA: In Sinclair, the Court accepted the following findings of fact as adopted by the trial court, and which the Stateof Michigan accepted as true: "'From the general public standpoint,the general marijuana user would requireno treatment at all. Most marijuana users do not have problems that would require any treatment from a medical or psychiatric point of view. Those that seek help because they have an adverse reaction tomarijuana or because they think they are using toomuch of the drug ordinarily need some guidance and some support and not much else. Themajority of current marijuana users are using but not abusing the drug in the sense that onewould normally think of dangerous drug abuse. To say that marijuana is an absolutely harmless -- -- drug is untrue, on the other hand, to say that -- 

### -- it is2horrendous drug is equally untrue. -- %riju%a is a drug with potential dangers for ---- some people when taken in conventional doses. Marijuana is safe formost people in conventional ---- doses. Occasional, recreational useof marijuana formost individuals will be a pleasurable experience, involving no adverse reactions. The vast majority of recreational marijuana -- users will emerge from their drug experience without any apparent harm, either to themselves or to society,'" 

### -- Sinclair, 194N.W.2d 886-887, n.-35. (Emphasisadded.) THE PHYSIOLOGICALAND PSYCHOLOGICAL EFFECTS OF USING 

### - - MAR1JUANA: Both the Sinclair and Ravin decisions discussed in detail the physiological and psychological effects of using marijuana. The general physiological effects induced by using marijuana were described in Sinclair as follows: "Consideration of the scientifically observed physical and psycho-motor effects ofmarijuana indicates that it is overall, the least dangerous mind-altering drug. Observed physical effects ofmarijuana use include dryness of mouth and throat, slight increase in pulse rate,and slight conjunctival reddening of the eyeball. No known tolerance develops to marijuana--in factnegative tolerance has been observed, that is,a decreased amount of the drug taken on subsequent occasions produces the same level of physical and euphoric effect. No physical dependency is produced by use of the drug and, hence, there are no withdrawal syrr~ptomsor 'abstinence syndrome' when the drug isunavailable to the user.""No lethal dose for marijuana has been established. The lack of harmful physical effects from marijuana has been well summarized by Dr. Grinspoon in Marijuana Reconsidered

(Bantamed., 1971), p. 60: "'What is so striking about the pharmacology of cannabis is that it has such limited and mild effects on human nonpsychic function. This is consistentwith the equally striking observation that there has never in its long history been reported an adequately documented case of lethal overdosage. Nor is there any evidence of cellular damage to any organ.'" Sinclair, 194N.W.2d at 882-883. And, based on the available scientific evidence, the Court in Ravin discussed the short term and long term physiological effects ofmarijuana use: "The short-term physiological effects are relatively undisputed. An immediate slight increase in the pulse, decrease in salivation, and a slight reddening of the eyes are usually noted. There is also impairment of psychomotor control. These effects generally end within two to three hours of the end of smoking. "Long-term physiological effects raise more controversy among the experts. TheNational Commission on Marihuana and Drug Abuse reported that among users 'no significant physical, biochemical, ormental abnormalities could be attributed solely to their marijuana smoking.' Certain researchers have pointed to possible deleterious effects on the bodv's immune defenses, on the chromosomal

# structures of users, and on testosterone levels in the body. Themethodology of certain of these studies has been extensively criticized by other qualifiedmedical scientists,however. These studies cannot be ignored. It should be noted that most of the damagesuggested by these studies comes in the context of intensive use of concentrated forms of THC. It appears that the use of marijuana, as it ispresently 

### ---- --- used in the United States today,does not 

### --- -- constitute a public health problem of 

### any significant-dimensions. 

### -- It is, - forinstance, far more innocuous in terms of physiological 

### -- and social damage than alcoholor tobacco. But the studies suggesting dangers in intensive 

### -- cannabis use do raise valid doubts which 

### -- cannotbe dismissed or discounted. Ravin, 537p.2dat 506. (~Fhasis added.) In Sinclair, the Court relied extensively on the Canadian Commission Report concerning the psychological effects of using marijuana. The Court stated:"Marijuana is amild hallucinogen, which in view of its lack of any other harmful effects, leads us to conclude that there isno rational basis for penalizing itmore severely than the other hallucinogens.

(Citationomitted.) Indeed,mild hallucinogenic effects are reported almost exclusively from use ofmore potent hashish type preparations and rarely, if ever, from the use of ordinary street varietymarijuana. The Canadian Commission Report states (pp. 116-117): "'Cannabis is one of the least potent of the psychedelic drugs, and somemight object to its being classified with LSD and similar substances. It is often suggested that marijuana is amild intoxicant, more like alcohol. 

# .

# . Itwould be incorrect to say that cannabis in moderate dose actually produces amild LSD experience; the effects of these two drugs are p~pchiologically, behaviorally and subjectivelyquite distinct. Furthermore, sinceno cross-tolerance occurs between LSD and THC the mechanism of action of these twodrugs is thought to be different.' "TheCanadian Commission Report comprehensively summarized the various possible psychological effect ofmarijuana use as follows (pp. 117-118): "'A cannabis "high"typically involves several phases. The initial effects are often somewhat stimulating and, in some individuals,may elicit mild tension or anxiety which usually is replaced by a pleasant feeling of well-being. The later effects usually tend tomake the user introspective and tranquil. Rapid mood changes often occur. A period of enormous hilarity may be followed by a contemplative silence.' "'Fsychologicaleffectswhich are typically reported by users include: happiness, increased conviviality, a feeling of enhanced interpersonal rapport and communication,heightened sensitivity to humor, freeplay of the imagination,unusual cognitive and ideational associations, a sense of extra-ordinary reality, a tendency to notice aspects of the environment ofwhich one is normally unaware, enhanced visual imagery,an altered sense of time in which minutes seem like hours, changes in visually perceived spatial relations,enrichment of sensory experiences

(subjectiveaspects of sound and taste perception are oftenparticularly enhanced), increased personal understanding and religious insight, mild excitement and energy (or just the opposite), increased or decreased behavioral activity, increased or decreased verbal fluency and talkativeness, lessening of inhibitions, and at higher doses, a tendency to lose or digress from one's train of thought. Feelings of enhanced spontaneityand creativity are often described, although an actual increase in creativity is difficult to establish scientifically. While most experts agree that cannabis has little specific aphrodisiac (sex stimulating) effect,many users report increased enjoyment of sex and other intimate human contact while under the influence of the drug. "Lesspleasant experiencesmay occur in different individuals, or possibly in the same individuals at different times. Some of these reactionsmay include: fear and anxiety, depression, irritability, nausea, headache, backache,dizziness, a dulling of attention, confusion, lethargy,and a sensation of heaviness,weakness and drowsiness. Disorientation, delusions, suspiciousness and paranoia, and in some cases, panic, loss of control,and acute psychotic states have been reported." Sinclair, 194N.W.2d 884-885. The psychological effects of using marijuana were set forth in the Ravin decision as follows: "The immediatepsychological effects of marijuana are typically amild euphoria and a relaxed feeling ofwell-being. The user may feel a heightened sensitivity to taste and to visual and aural sensations, and his perception of time intervalsmay be distorted. A desire to become high can lead to a greater high; fear of becoming high or general nervousness can cause the user to fail to experience any high at all. In rare cases, excessive nervousness or fear of the drug can even precipitate a panic reaction. Occasionally a user will experience a negative reaction such as anxiety or depression, particularly when he takes inmore of the substance than needed to achieve the desired high. However, in smoking marijuana, the usual method of taking it in this country, the user can self-titrate,or control the amount taken in, since the effect builds up gradually. "Additionally short-termeffects are an impairment of immediate-past-memory facility and impairment in performing psychomotor tasks. Experienced users seem less impaired in this regard than naive users. "Inextremely rare instances,use of marijuana has been known to precipitate psychotic episodes;however, the consensus of the experts seems to be that the potential forprecipitating psychotic episodes exists only for a limited number of prepsychotic persons who could be pushed intopsychosis by any number of drug or nondrug-related influences."There is considerabledebate as to the long-term effects of marijuana on mental functioning. Certain researchers cite evidence of an 'motivationalsyndrome" among long-term heavy cannabis users. However, the main examples of this effect are users in societies where large segments of the population exhibit such traits as social withdrawal and passivity even without drug use. The National Commission concludes that long-time heavy users do not deviate significantly from their social peers in terms ofmental functioning,at least to any extent attributable tomarijuana use." Ravin, 537 P.2d at 506-507. Moveover, aspreviously indicated,the Court in Sinclair noted that chronic psychosis rarely if ever results from the gross abuse of marijuana,but chronic psychosis is frequently the result of chronic abuse of alcohol. Sinclair, 194N.W.2d at 885. It is patently clear that the Courts in Sinclair and in Ravin did not reach their conclusions without a detailed and careful consideration of the available scientific evidence. In each case the Courtwas presented with a different primary legal issue,but also in each case the Court assessed the factsbefore its determination. The obligations of this Court areno less. Indeed, in light of the "rightof privacy provision in our State Constitution, the duty here was even stronger. Perhaps in enacting legislation, the legislaturehas the right to ignore the facts;but this Court has no right to ignore the facts in applying the Constitution of this State. It is our duty to marshal1 and assess the facts,and even more so if the legislature fails or refuses to do so.Based on the available evidence of lack of public harm by the use of marijuana (and indeed, the relative harmlessness of marijuana use when compared to the use of alcohol,and perhaps even tobacco), it is littlewonder that the national organizations which Ipreviously listed, and the states which Ipreviously listed,have concluded that the possession of small quantities ofmarijuana should be decriminalized. But regardless of the position that the legislature in this State takes, this Court cannot ignore this lack of public harm in determiningwhether law enforcement officers should be allowed to invade the privacy of the home to obtain evidence of possession or use of marijuana used only in the privacy of that home and only for personal, private purposes. Clearly, this Courtmust recognize a distinction between public conductwhich the State can legitimatelyregulate,and private conduct, in which the Statehas no legitimate interestbecause of the nature of the activity involved and a lack of public harm. We must also distinguish between the right of the State to regulate economic and social relationships from an attempt by the State to regulate the purely private conduct of its citizenswhich causesno public harm. These distinctions were ably expressed by Justice Levinson in his dissenting opinion in Statev. Kantner

(Hawaii1972), 493 P.2d 306, where he concluded that there

was no evidentiary basis for the criminalization of small quantities of marijuana intended for purely personal, private use: "Iwish to make it clear that the views expressed in this opinion apply only to private conduct of individuals. The vice of the present statute springs from the license it gives to the State to violatea person's reasonable expectation of privacy. Where conduct is public in - nature, however, society has a greater claim to the right of controland the 

### --- -- State need not showas compelling an 

### ---- interest in itsprohibition. 

# oreo over, -- this analysis is notmeant to imply a right to the personal use of other prohibited drugs, such as heroin and other narcotics,which are not involved in this case. "Finally,it should be stressed that the analysis I have adopted does not seek to establish this court as a super-legislature, exercising veto power over thewisdom and value of legislativepolicies. See Griswold v. Connecticut, supra at 512, 85 S.Ct. 1678

(Justice Black's dissentina owinion). Anv .I criticism which attempts to deter cburts 

### - from inquiring into the constitutionality -- of laws must distinguish between legislation

---. which seeks to regulate economic and social relationshipsand that which intrudes into 

### -- the purely private sphere of human life. In the former instance courtsright fully grant the legislaturewide latitude for experimentation in the promotion of the wublic aood. But. 

### - where the state endeavors to intrudedintothe

. - -- .---- - 

### - individual's private life and regulate conduct -- having no public significance, it is the duty 

### ---- of the courts to offer a haven of refugewhere -- the individualmayurevindication of his -- riqht to be left alone." Kantrer, 493 P.2d at -- 317-18, (Emphasisadded.) (~evinson, J.

### , dissenting.) It is also significant that in Sinclair, in a separate opinion, Justice Kavanaugh concluded that the legislature had no right to criminalize possession and private use of marijuana, and in doing sowas acting as a "Big Brother" by injecting itself into a place where it had no right to be: "Ifind that our statute violates the Federal and State Constitutions in that it is an impermissible intrusion on the fundamental rights to liberty and the pursuit of happiness,and is an unwarranted interferencewith the right to possess and use private property. "As I understand our constitutional concept of government,an individual is free to dowhatever he pleases, so long as he does not interfere with the rights of his neighbor or of society, and no government--State or Federal--has been ceded the authority to interferewith that freedom. As has been said:II I

# ... the sole end forwhich mankind are warranted, individually or collectively, in interferingwith the liberty of action of any of these number, is self-protection. That the only purpose for which power can be fully exercised over any member of a civilized community, againsthis will, is toprevent harm to others. His own good, eitherphysical ormoral is not a sufficient warrant. J.S. Mill, On Liberty, Chapter 1.' "Whatever the validity of the concept that 

### -- traffic inmarijuana is freighted with a -- proper public interest, it is extending the -- concept entirely too far to sanction



## - --- proscription of possession and private use of it. ~lthough it is conceivable that some 

### -- legitimatepublic interestmight warrant state interferencewith what an individual consumes,

'BigBrother' 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. "Inmy view when the legislature proscribed the possession and private use of marijuana -- as a Public health measure it did so uncon

### -- stitutionally." Sinclair, 194N.W.2d at 896. (Emphasis added.) Courts should,when asked to determine a right of privacy claim in light of a countervailing claim of the State's right to regulate the conduct of individuals, adopt a standard by which the competing interests should be weighed. ~ustice Levinson, in Kantner, suggested the test should be that set forth in the concurring opinion of Justice Goldberg in Griswold v. Connecticut (19651, 381 U.S. 479, 497, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510: "'In a long series of cases this Court has held that where fundamental personal liberties are involved, theymay not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose.

'Wherethere is a significant encroachment upon personal liberty,the Statemay prevail only upon showing a subordinating interest which is compelling,' Bates v. Little Rock 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. The law must be shown 'necessary,and notmerely rationally related, to the accomplishment of a permissible statepolicy.' McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222. See Schneider v. State, Irvington, 308 U.S. 147, 161 60 S.Ct. 146, 151, 84 L.Ed. 155'" Kantner, 493 P.2d at 317. (Levinson, J-,dissenting.)Justice Levinson, in his dissent, reviewed the available evidence as against the State's claim of marijuana's harmfulness, and concluded that the State's attempted justifications for criminalizing the private

use and possession ofmarijuana were unsubstantiated. The State could not prove the social (public) injury to justify the intrusion into a person's privacy. He stated: 

# ".

.. In short,marijuana produces experiences affecting the thoughts,emotions and sensations of the user. These experiences being mental in nature are thus among themost personal and private experiences possible. For this reason I believe that the right to be let alone protects the individual in private conductwhich is designed to affect those areas of his personality, so long as such conduct does not produce detrimental results. "Thisprinciple that the State'spower to restrain private conduct is limited by the need to show social injurywas recognized by this court in State v. Lee, 51 Hawaii 516, 521, 465 P.2d 573, 577 (1970): 

### "

### ' (W) here an individual's conduct, or a class of individuals' conduct, does not directly harm others the public interest isnot affected and isnot properly the subject of the police power of the legislature.' "In the Lee case, the court went on to announce a narrow exception to the above general rule. The Statemay also act to protect a large class of individuals from harm to themselves,but only where such harm has been compellingly demonstrated to the satisfaction of the court. Statev. Lee, supra. Because the Statehas failed to establish 

### -- that the private, personal 

### -- useofmarijuana harms either the user or society, Iwould hold that the --- 

### --- prohibition of HRS 32g-5 (Supp. 1971) unreasonably infringes -- upon the appellants' rights to personal automony." Kantner, 493 P.2d at - 315. (Emphasisadded.) (~evinson, J., dissenting.) In the present case, the State has not proved and, of course, the evidence does not justify the conclusion that there is a compelling State interest to invade the privacy of one's home to obtain evidence of possession and use of marijuana forpersonal, private use. This does not mean however, that the distribution, sale,possession -56-and use of marijuana should not be controlled by the State. But it is vitally important that the method adopted not be oppressive and counter to the constitutional rights of those regulated. In Goldblatt v. Town of Hempstead

(1962),369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130, the United States Supreme Court reiterated the basic test for the valid exercise of the police power: 

# ".



# . .The term 'police power' connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of 'reasonableness,'this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152U.S. 133, 137, [38L.Ed. 385, 388, 14 S.Ct. 490 (1894)], is stillvalid today: "'To justify the State in 

# . .

# . interposing its authority in behalf of the public, it must appear, first, that the interests of the public 

# . . . require such interference; and, second, that themeans are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon 

### -- individuals.'" Goldblatt, 369 U.S. at 594- 95, 82 S.Ct. at 990, 8 L.Ed.2d at 134. (Emphasis added.) I can think of no law that ismore oppressive to

a significant percentage of the citizens of this State than one which singles them out and subjects them to searches and seizures in the home,where the conduct proscribed has not been shown to be injurious to the public,

or, for thatmatter, injurious to the individual when compared to alcohol or tobacco. It cannotbe a compelling State interest for the State to attempt to protect an individual fromhis own folly by subjectinghim to invasions of his privacy and criminal sanctions, simply because he has chosen to possess or use marijuana in the privacy of his home. One type of State regulation which would not involve the invasion of one's privacy in his home, was suggested byJustice Kobayashi in Kantner,where, in his dissent he concluded that marijuana possession in the privacy of one's home should not be criminalized,but thatmarijuana should be regulated in the samemanner as alcohol and tobacco are regulated: "Just as it is a valid exercise of the State of Hawaii's police-power to regulate the sale, use, and possession of such commodities as alcohol and tobacco, it is axiomatic that the regulation ofmarijuana is also a valid state activity. 

# . ." Kantner, 493 P.2d at 318.

(Kobayashi,J.

### ,ming. ) His reasons for suggesting this approachwere stated

as follows: "It is evident that much research into the long term effects of consuming marijuana is presently needed. As yet,however, it has not been shown that consumption of marijuana is anymore harmful than a comparable consumption of alcohol and it is doubtful that the presently known effects of marijuana are as adverse as those of alcohol. Until legitimate research indicates otherwise, the harm created by placing a criminal sanction of the activity of a significantpercentage of our population who would otherwisebe law abiding citizens far outweighs any present benefit to be derived from the effects of classifying marijuana as a narcotic. There is no logical or otherwise rational reason for our society,on the basis of a law that has little or no merit in its application to continue tomake criminals out of and consequently alienate the youth of today. "Theuse ofmarijuana does not cause the social evils that the legislature has attempted to guard against 

# . .

# . "It is suggested that a more reasonable and rational approach in this area would be to regulatemarijuana in amanner similar to that of alcohol or tobacco. In this way, the abusive effects of mariiuana,not its reasonable

< use,would be given criminal sanctions. Such a change of the lawwould instill the respect of society that isneeded for the preservation of criminal justice and prospectively decrease the criminalization of ouryounger generation." Kantner, 493 P.2d at 320. (Kobayashi,J., dissenting.)Implicit in this approach is a belief that the distribution, sale,possession and use of marijuana should be legalized. Though I take no position on this suggestion,
I agree with the underlying theme that the present method of using criminal sanctions to combat the possession of marijuana in the privacy of one's home, does significantly

more harm than good and leads to a general disrespect for

our laws. Itmust also be emphasized that although the Court in Ravin confined the right to possess marijuana to the privacy of the home, two concurring opinions clearly indicated that the Courtmay well be called upon to determine whether such right also existed outside the home.In a concurring opinion by Justice Boochever (and concurred in by Justice Connor), he carefully analyzed the United States Supreme Court decisions involving the right of privacy, and concluded that although his home

was the primary situs in which the right was exercised, itwas not the only place for the right of privacy fundamentally belongs to each individual,and does not relate to any situs. He especially emphasized in this regard, the right, and the duty of theAlaska Supreme Court in effectuating its own privacy provision in its constitution, to go beyond those decisions of the United States Supreme Court: 

# ".

. .While Federal cases defining the right of privacy derived from other provisions of the United States Constitution are of assistance in determining the perimeters or our constitutional right to privacy, we are certainlynot beyond by those cases in construing the separateAlaska provision. Even when Alaska Constitutions provisions are closely akin to those of the Federal Constitution, we have stated:"'Whilewemust enforce theminimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free,and we are under a duty, to develop additional constitutional rights and privileges under ourAlaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered libertywhich is at the core of our constitutional heritage. We need not stand by idly and passively, waiting for constitutional direction from the highest court of the land. Instead,we should be moving concurrently to develop and expound the principles embedded in our constitutional law.'" Ravin, 537 P.2d at 513. (Citing Baker v. City of Fairbanks

(Alaska1970), 471P.2d 396, 401-402.) Justice Connor, in a separate concurring opinion, also pointed out the nature of the problems that will undoubtedly arise concerning the invocation of the right of privacy and the appropriate test to apply: "Thedecision today properly leaves unanswered the question of how far the right to privacy, in connectionwith the possession ofmarijuana, extends outside the home. Such a determination canbe made only when we are presented with specific facts against which the individual's claim of privacy can be measured, as opposed to the state's assertion of power to control the possession of marijuana. Under the test we have employed in determining the scope of the right to privacy, it is necessary to balance these conflicting claims and determine, whether the state's prohibition bears a direct and substantial relationship to effectuating a legitimate state interest.

"It is certain that the right to privacy does not vanish when one leaves the home. There are certain aspects of personal autonomy which one carries with him even when he ventures out of the home, though the claim to privacy diminishes in proportion to the extent that one's person and one's activities impinge upon other persons. But, in order to trace the contoursof the right to privacy, itwill be necessary to engage in a critical analysis of the factsof each casewhich presents itself fordecision. Only in this fashion can the right to privacy, outside the home,bebe determined on a reasoned, coherent basis so as to furnish the courts and the public with reliablerules of action. Much definitional work, therefore, remains to be done in the cases yet to be determined." Ravin, 537 P.2d at 516. Concerning the analysis and observations of Justices Boochever and Connor, less cannot be said concerning our duty to interpret out own constitution. As discussed earlier in this opinion, I am sure there is nearly universal agreement that the right of privacy exists in the home if it exists anywhere. The difficult question is in deciding what kind of activity should be protected in the home from the intrusions of the State. Agreement, on this subject seems to depend directly on whose ox is being gored. Too often we want protection for what "we"do in the privacy of "our"homes but not forwhat "they" do in the privacy of "their"homes. Under

our constitutionhowever, it is the function of this Court to permit all conduct in the privacy of the home

as long as a countervailing compelling State interest does not take a higher precedence. Based on the available evidence as to the lack of public harm (and,indeed,even the relative lack of harm to the individualwhen, compared to the use of alcohol and perhaps also tobacco), I find no difficulty in determining that a compelling State interest did not exist for the police to seize themarijuana plants in the defendant's home.Iwould accordingly,order that the marijuana plants seized in the defendant's home, be suppressed,and order that the cause be dismissed.