No. 14330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA ex rel., 

JAMES ZANDER, 

Relator, 

THE DISTRICT COURT OF THE FOURTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and 

for the County of Missoula, and the HONORABLE 

JACK L. GREEN, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator: 

Robert J. Campbell argued, Missoula, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Denny Moreen argued, Assistant Attorney General, Helena, 

Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Ed McLean argued, Deputy County Attorney, Missoula, Montana 

Submitted: June 19, 1978 

Decided : MAE 1 1979 

Filed: !dkk -A 1 13% 
Mr. Chief Justice Frank I. Haswell delivered 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's denial of his motions to 

dismiss and suppress a pending criminal case against him. 

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 someone was tampering with 

the kitchen window in relator's trailer home. Deputy Hintz was 

advised there was a burglary in progress and was dispatched to 

the scene. Upon arrival Deputy 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 saw no one nor anything suspicious outside the house. 

He knocked at the door and received no response. He 

tested the door handle and found the door unlocked. He thought 

the reported prowler or burglar might be hiding in the house so 

he entered. He walked through the living room and the kitchen 

which appeared undisturbed. Deput-y Crego, who had been dispatched 

to the scene as a backup man, 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 closet disclosed the same scene. 

The officers had no reason to believe there were any 

marijuana plants or drugs on the premises. They searched only 
those 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 the marijuana plants, two coffee 

cans containing suspected marijuana plant material, and 2 one 

ounce plastic baggies of marijuana. 

Zander was charged with the criminal sale of a dangerous 

drug by reason of the unlawful cultivation of marijuana. 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 a writ of supervisory control to test the correctness of these rulings. We set 

the matter for adversary hearing and ordered briefs filed. In 

addition to the briefs of the parties, amicus briefs were filed 

by the American Civil ~iberties Union and by the County Prosecutor's Services Bureau. 

Five issues are presented in this matter: 

(1) Is supervisory control an available remedy? 

(2) Did the search violate the right of privacy provision 

in the State Constitution? 

(3) Did the search violate the constitutional prohibition 

against unlawful searches and seizures? 

(4) Does the statute under which defendant is being 

prosecuted violate the equal protection guarantee in the State 

Constitution? 

(5) Does the statute under which defendant is being prosecuted violate the "due process" 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 by 
appeal is available in the event of relator's conviction. 

The writ of supervisory control is not a common law or 

statutory writ. It is derived from Montana'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 in Montana'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 original proceedings before this Court has a history of over 50 years. 

The discretion to use this writ is determined by the 

needs of the individual case. Comparatively recently, it was 

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 control prior 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 

seizure here was unlawful for two reasons: (1) that it violated 

the "search and seizure" provisions of the United States and 

Montana Constitutions, and (2) that it violated the "right of 

privacy" provisions in the Montana Constitution. 

Both the Federal and State Constitutions prohibit unreasonable searches and seizures. Fourth Amendment, U.S. Constitution; ~rticle 11, Sec. 11, 1972 Montana Constitution. Both 

permit searches and seizures under valid search warrants and 
under certain circumstances without a search warrant. Here 

the focus of defendant's attack is not on the search warrant 

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 attacks both the warrantless entry 

into his house and the scope of the search in which the discovery 

was made that formed the basis for issuance of the search warrant. 

We hold that the warrantless entry into Zander's house 

by deputies Hintz and Crego was proper and justified. A person 

had been observed under circumstances indicating an attempt at 

forced entry into the Zander home. Deputy Hintz found the front 

door unlocked after having been informed that nobody was home 

and that the door was always locked when the Zanders were away, 

The officers at the time of entry were engaged in protecting the 

Zander property. This included determining whether any burglars 

were hiding inside the house. A prudent officer was warranted 

in believing that a felony had been attempted or committed and 

in concluding that prompt entry into the home was necessary to 

protect the property and determine whether the suspect was hiding in the house. State v. Schrag (1975), 21 0r.App. 655, 536 

P.2d 461; Henry v. United States (1959), 361 U.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 suspect was 

lawful, the incidental discovery of the contraband during the 

course of the search was likewise lawful under the "plain view" 

doctrine. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 

S.Ct. 2022, 29 L Ed 2d 564. It is well settled that an object 

in plain view of an officer who lawfully is in a position to 

have that view is subject to seizure. Harris v. United States 

(19681, 390 U,S. 234, 88 S.Ct. 992, 19 L Ed 2d 1067. Montana 

has applied this principle and stated the rule in this language: 
"The rule is: Where there is prior justification 

for the police to search an area, and in searching the area, they inadvertently find incriminating evidence which they had no reason to anticipate, 

they may lawfully seize that incriminating evidence." 

State v. Gallagher (1973), 162 Mont. 155, 167, 

509 P.2d 852, 858. 

Here the officers were not searching for drugs but for 

a suspected burglar. They had no reason to suspect the presence 

of contraband in the house. Their search was 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 search warrant 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 1972 Montana Constitution. The gist of defendant's contention is that there was no compelling state interest 

justifying the invasion of a private home to criminalize the 

growing of a marijuana 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. Daniels M.D., 

a physician in Arlee, Montana to the effect that a marijuana 

plant constitutes no risk or hazard to health. Also cited is an 

affidavit of Dr. Thomas Ungerleider concerning recent studies 

of marijuana 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 determination of whether the cultivation or use of marijuana is or should be criminalized. This 

is patently a matter 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 legislative prerogative under the questionable theory that there is 

no evidence or policy basis for the statutes and that the legislature had 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 from growing a marijuana plant, 

citing the "right of privacy" provision in Montana's Constitution. 

Our Constitution provides: 

"The right of individual privacy is essential 

to the well-being of a free society and shall 

not be infringed without the showing of a compelling state interest." Art. 11, Sec. 10, 1972 

Montana Constitution. 

We have no quarrel with this constitutional provision nor 

with the various authorities cited by relator and amicus American 

Civil Liberties Union for the pronouncement that a person has 

the valued and fundamental right 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. 

State v. Brecht (1971), 157 Mont. 264, 485 P.2d 47; Welsh v. 

Pritchard (1952), 125 Mont. 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- 
State v. Murphy (1977) , 117 Ariz. 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 the well-being of our society. The constitutional 

guarantee of individual privacy is not absolute. It must 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 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 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 apprehension of the suspect. The purpose of the 

intrusion had nothing to do with enforcement of marijuana laws. 

Protection of 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 to which the right of individual privacy 

must yield 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 right of privacy. 

Zander next contends that the statute prohibiting the 
cultivation of marijuana plants denies him equal protection 

of the laws under Art. 11, Sec. 4 of the 1972 Montana Constitution. 

He argues that cultivation of tobacco is equally as harmful as 

cultivation of marijuana and that because no criminal sanctions 

are placed on tobacco cultivation while criminal statutes prohibit 

marijuana cultivation, he is denied equal protection of the laws. 

Criminal statutes need not apply to all areas that may 

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. 

Determination or classification of the subjects of legislation 

does not deny equal protection. State v. Mitchell (1978), 

Mo . , 563 S.W.2d 18; State v. Kells (1977), 199 Neb. 374, 

259 N.W. 2d 19. If all persons in the same class are treated 

alike, there is no violation of equal protection. Hart Refineries 

v. Harmon (1928), 81 Mont. 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 45-9-101 MCA, violates the due process 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), 166 Mont. 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's attack here. However, we wish to re-examine our ruling in LeMieux prior to any 
trial in this case and accordingly have granted review by supervisory control for that purpose. 

LeMieux was a 3-2 decision reversing the ruling of the 

district judge that the statute was unconstitutional. Two members of the majority are no longer on the Court. The third 

member of the majority 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: 

"A person commits the offense of a criminal sale 

of dangerous drugs if he . . . cultivates . . . any dangerous drugs as defined in [this act]." 

Sec. 54-132, R.C.M. 1947, now section 45-9-101 MCA. 

Marijuana and marijuana plants are defined as dangerous drugs 

elsewhere in the Controlled Substances Act, sections 54-301 and 

54-305, R.C.M. 1947, now sections 50-32-101 and 50-32-222 MCA. 

The majority 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 legislature could have prohibited the cultivation of marijuana 

by separate statute it did not overstep its power 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 irrebuttable presumption of "sale" 

of marijuana from cultivation thereof. The language of the statute is clear and unambiguous. It plainly 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 the words used and if the meaning of the statute 

can be so determined, the courts may not go further and apply 

any other means of interpretation. Dunphy v. Anaconda Company 

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

Co. (1978), Mont . , 578 P.2d 724, 35 St.Rep. 523. When 

the language of the statute is plain, unambiguous, direct and 
certain, the statute speaks for itself and there is nothing 

for the Court to construe. Dunphy v. Anaconda Company, supra; 

Jones v. Judge (1978), Mont . 577 P.2d 846, 35 St.Rep. 

460. The function of 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 1-2-101 MCA. Applying 

these rules we now hold that section 54-132, R.C.M. 1947, now 

section 45-9-101 MCA, creates a conclusive presumption 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 fact proved and the ultimate 

fact presumed, if the inference of one from proof 

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: 

"The upshot 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 the presumed fact 

is more likely than not to flow from the proved 

fact on which it is made 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 (cultivation of marijuana) bears no 

rational connection with the fact presumed (sale of marijuana). 

Marijuana cultivators are not ips0 facto marijuana sellers. 

Common experience indicates that many marijuana users cultivate 

the plant for their own use, particularly where, as here, small 

amounts are cultivated within the confines of one's closet. We 

cannot say with substantial assurance that such cultivating is 
more likely than not to result in a sale. A conclusive statutory presumption that a marijuana cultivator is a marijuana 

seller is purely arbitrary. It precludes proof to the contrary. It offends the "due process" clause of our State Constitution. Art. 11, Section 17, 1972 Montana Constitution. 

Accordingly we hold that part 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 

unconstitutional on 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. Justice Daniel J. Shea: 

I concur with the majority opinion declaring section 

54-132, R.C.M. 1947, to be unconstitutional in part, and will 

provide shortly my 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 explanation will be file 

- 12 - 
This is the dissent in State ex rel. Zander 

v. Fourth Judicial District, no. 14330 

i/ 

CLERK OF SUPZEME CZsm 

STATE OF MONTILCA 
Mr. Justice Daniel J. Shea concurring in part and dissenting 

in part: 

I concur with part of the Court's decision determining 

that the officers made a lawful entry into the defendant's 

home, and I concur with 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. I do have some observations on both of these 

points, however. I dissent to the Court's opinion declaring 

the officers did not violate the defendant's right of 

privacy by seizing the marijuana 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. I believe however, that 

evidence concerning improper or ulterior motives could, in 

an appropriate case, compel an opposite conclusion. The 

courts must be careful that they do not allow a flimsy 

pretext to justify entry into the privacy of one's home. 

The majority here has determined that section 54-132, 

R.C.M. 1947, now section 45-9-101 MCA, creates a conclusive 

presumption that offends the due process 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 rebuttable presumption 

that possession of marijuana was done with knowledge that 

it was 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 

legislature did not just create a rebuttable presumption-- 

it created a conclusive presumption. This conclusive 

presumption could not be tolerated under any standard of 

due process 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 the majority 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 a warning that the legislatures 

of this land must 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 the majority. 

The footnote stated: 

"Since we find that the #176a presumption is 

unconstitutional under this standard, we need 

not reach the question whether a criminal 

presumption which 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. [Citing authorityl." 395 U.S. 

at 36. 
I turn next to my dissent on the "right of privacy" 

issue decided by the majority. Before venturing into 

legalistic arguments concerning the "right of privacy" in 

relation to marijuana, and the factual background concerning 

what is known about marijuana, I must confess that this 

society has been guilty of utter hypocrisy in its treatment 

of marijuana as opposed to other drugs which have been 

demonstrated to have far more appalling consequences to 

individuals and to the welfare of this society. The two 

drugs that stand out most 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 far more compelling basis in the interest of protecting society, and 

individuals from themselves, to criminalize the possession 

and use of alcohol and tobacco. This would of course, 

include possession and use in the home for purely personal, 

private purposes. (I emphasize however, that I do not 

recommend this course of action.) But assuming an unthinkable 

legislative act criminalizing alcohol and tobacco, it would 

not be within the realm of reasonable contemplation that 

even the most rabid prohibitionists and anti-smokers would 

sanction the invasion of the privacy of the home to seize 

alcohol and tobacco possessed by the occupants solely for 

their own personal, private use. 

There is, I realize, an institutional prejudice in 

this area (that is, 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 legislatures and 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. 

There would 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 to marijuana 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 Court was 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 note moreover, that the State adopted an 

equally simplistic legal approach to the problem of whether 

the marijuana plants should have been seized. 

The State presented 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, I believe the legislative acts 

have a presumption 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 search warrant. 

Evidently Judge Monger agreed with the law 

enforcement officers and issued a search warrant 

in accordance with the applicable statutes. 

Your Honor, I do not believe that when we find 

a person in violation of Montana law that we 

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 

several occasions." 

By this analysis, the State would have the courts 

equate a legislative enactment with a "compelling state 

interest" to override the protection guaranteed by the 

"right of privacy" provision of our constitution. This 

interpretation would mean that the legislature could indirectly determine the confines of the constitutional 

"right of privacy" by merely enacting a law declaring an 

act or omission to be a crime. This would effectively 

destroy the power 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 is willing to recognize under its constitutional duty to interpret the constitution. 

Notwithstanding the State's failure to meet the 

fundamental and underlying issue raised by the seizure of 
marijuana in the privacy of one's home, it appears that 

the majority 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, the majority misapplies these same principles. 

The majority first stated: 

"We have no quarrel with 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 the valued and fundamental 

right to be left alone, free from governmental intrusion. [Citing authority]; 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 [Citing cases]. 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 to mention here." 

Unfortunately, the majority failed to analyze these 

cases before coming to its conclusion as to their meaning 

and application to this case. The majority again stated: 

"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 the well-being of our society. 

The constitutional guarantee of individual 

privacy is not absolute. It must 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 fundamental rights -- of its citizens. 

- "The com~ellina L 2 state ---- interest in this case 

--- 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 intrusion had 

nothing --- to do with enforcement -- of the 

marijuana laws. 
"Protection - of - 

a person's property is an 

inalienable right guaranteed by our Constitution. 

Art. 11, Sec. 33, 1972 Montana Constitution. 

This constitutional protection furnishes the 

compelling state interest to which the right 

- 

of individual privacy 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 right of privacy." (Emphasis 

added. 

Before discussing the basis of the majority's opinion 

on the "right of privacy", I must state that it appears the 

majority has left for another day the determination of 

whether the right of privacy provision in the Montana 

Constitution is violated 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 the marijuana. 

I say this because the majority 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 the majority 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. 

It was 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" (once they had opened the 

closet doors) the officers left the home, applied for and 

obtained a search warrant, and then returned to defendant's 

home, entered, and seized the marijuana plants. Clearly, 
the only motive for reentry into the home was tc seize 

the marijuana plants, and perhaps to conduct an additional 

search for drugs. In any event, they seized only the 

growing marijuana plants. I believe that this reentry 

triggered the "right of privacy" provision of our constitution. 

I emphasize however, that I do not base the foundation 

of my dissent upon this reentry distinction. Whatever the 

case, it appears to me that the majority has not foreclosed 

a "right of privacy" contention where the initial purpose 

for going into the home was to seize marijuana being possessed 

only for private, personal use. 

As to the basis of the majority opinion I must admit 

I am more than a little perplexed. 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 observe what there is to 

observe, and if there is evidence of criminal activities, 

it may either seize the evidence then, or, as in this 

case, leave, obtain a search warrant, reenter the house, 

and seize the evidence. 

The constitutional provision (1972 Mont. 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- 
"All persons are born free and have certain 

inalienable rights. They include the right 

to a clean and healthful environment and 

the rights of pursuing life's basic necessities, 

enjoying and defending their lives and liberties, 

acquiring, possessing and protecting property, 

and seeking their safety, health and happiness 

in all lawful ways. In enjoying these rights, 

all persons recognize corresponding responsibilities." 

(Emphasis added.) 

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 that was to 

be the approach of this Court in granting him his constitutional rights, I am sure he would gladly have waived that 

right. It would 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 really mean what was stated in their opinion. 

If so, this would 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 grips with the fundamental 

problem surrounding the criminalization and use of marijuana 

in relation to the police procedures used to eradicate 

this problem from our society. In doing so, the majority 

ignores the realities of life and continues to perpetuate 

a fundamental hypocrisy in our society. 

As I mentioned earlier, the majority position does not 

consider that the marijuana 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 consider 
a balancing of the basic interests involved in a 

determination of the right of privacy to possess marijuana 

in one's own home, for private, personal use. Under the 

facts of this case, I see no compelling State interest 

to be served by the seizure of the marijuana plants. If, 

at the time they applied for the search warrant, the 

officers had evidence and provided it to the magistrate, 

that the marijuana was being used for other than personal 

use, perhaps I would not reach the same conclusion. 

Essential to a determination of this issue is whether 

the privacy clause of our constitution, may, under certain 

circumstances, or where 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 "right of 

privacy", the seizure here was lawful. Indeed, applying 

strict search and seizure concepts that issue was foreclosed 

once this Court determined that the initial entry into the 

home was lawful. But the "right of privacy" issue was 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, 

1972 Mont. 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 infringed without the showing of a 

compelling state interest." 
The search and seizure protections given to the residents 

of this State by 1972 Mont. Const. Art. 11, S11, provide 

as follows: 

"The people shall be 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, or without prcbable cause, supported 

by oath or affirmation reduced to writing." 

The "right of privacy" belongs to all Montana residents. 

In areas where the right attaches, it can be overcome only 

by proof of a "compelling state interest." The search and 

seizure provisicn is likewise not 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 rights may, in 

certain circumstances, complement or supplement each other 

rather than be antagonistic to each other. In many situations 

the legitimate interests of the State will override any 

consideration of individual privacy. 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 this may well impose an additional 

burden upon the State before property may be lawfully seized 

by intrusicn into the privacy of one's home. 

The majority 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 "right of privacy" provision of our 

constitution is a more natural partner with the search and 

seizure provision in our constitution, that the "right of 

privacy" provision is with the right of the defendant to 
protect his property, especially since the majority has so 

graciously allowed the police to assert defendant's constitutional right to protect his property. 

The "right of privacy" and search and seizure prohibitions 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 State v. Murphy (1977), 17 Ariz. 57, 570 P.2d 

1070. There the court determined that the right of the 

legislature to make marijuana possession illegal automatically 

precluded any reliance by the defendant on the right of 

privacy provision of the Arizona Constitution. While not 

expressly so holding, it appears that the decision of this 

Court comes dangerously close to the same holding. This 

simplistic approach gives no meaning at all to the "right of 

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 "right of 

privacy." The effect of it is to let the legislature define 

and limit the application of the "right of privacy." All 

the legislature need 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 its worst. 

-24- 
Where a right of privacy is claimed which arises out 

a of conduct taking place within/personls home, 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 same vigor 

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 home may 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 balance must 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 fundamental protection 

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 is necessary 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 in which 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 defendant was 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 search warrant. 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 

there was 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 there was no 

preexisting evidence that it was being possessed in the home 

for other than personal, private use. 

Few in this State or for that matter, 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 individual dignity of each person, 

together with a recognition that there must be a place 

allowing each person "to be", was one of the impelling 

reasons for imposing constitutional limitations in the 

federal and state constitutions on 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. In Welsh 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 State v. Brecht (1971), 157 Mont. 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 "right of privacy" is embraced 

within the absolute rights of personal 

security and personal liberty . . . 

"The basis of the "right of privacy" -- is the 

"right to be let alone" --- and it is "a - 

--- part of the right of liberty and pursuits 

- of happiness."'" (Emphasis added.) 

And of course, 1972 Mont. 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 Luciano v. Ren and State of 

Montana (1979) , Mont . , 589 P.2d 1005, 36 St.Rep. 

179, (in a case not involving a claim of right of privacy), 

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

(1891), 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734: 

"No right 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: 

". . . The makers of our Constitution undertook 

to secure conditions favorable to the pursuit 

of happiness. They recognized the significance 

of man'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 in material 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 civilized man." 277 U 

at 478. (Emphasis added.) 

The majority 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), 

394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, where the 

Supreme Court held that "the mere private possession of 

obscene matter cannot constitutionally be made a crime." 

394 U.S. at 559. The court further stated in Stanley: 

". . . Georgia asserts that exposure to 

obscene materials 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 State may no more prohibit mere 

possession of obscene matter on the 

ground that it may lead to antisocial 

conduct than it may prohibit possession 

of chemistry books on the ground that 

they may lead to the manufacture of homemade 

spirits." 394 U.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 "right of 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 it may be the subject of a criminal prosecution. 

For example, defendant in Stanley was convicted under a Georgia 

statute which criminalized the mere private possession of 

obscene material; however, the United States Supreme Court 

held that the State did not have the right to criminalize 
the "private possession of obscene matter." 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 

criminalizing private possession of obscene material and did 

not accept the State's bald "assertion that exposure to 

obscene materials may lead to deviant sexual behavior or 

crimes of sexual violence." The Court concluded that there 

was "little empirical 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, for private, personal use. Given the explicit "right 

of privacy" protection guaranteed by our own constitution, 

the State is required to show an "empirical basis" founded 

on the "present state of knowledge" that the "public" health 

would be affected, before a "compelling state interest" 

would be shown. The facts ("present state of knowledge") as 

to use of marijuana are such that the State cannot meet the 

"compelling state interest" requirement of our constitution 

to justify invasion of the home. 

The Alaska 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 of marijuana 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 Supreme Court 

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 

smoke marijuana. 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 scaleof -- the 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 pertains morethan -- any other, 

---- 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' [citing Moreno v. United 

States Dep't. of Agriculture, 345 F.Supp. 310, 

314 (D.C.C. 1972) Aff'd 415 U.S. 528, 93 S.Ct. 

2821, 37 L.Ed.2d 782 (1973)l. The Fifth Amendment 

has been described as providing protection against 

all government invasions 'of the sanctity of a man's 

home and the privacies of life.' [Boyd v. 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.' [381 U.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.' [394 U.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 precisely 
because it was a prosecution for possession 

in the home: 'For also fundamental is the 

right to be free, except in very limited 

circumstances, from unwanted governmental 

intrusions into one's privacy.' [394 U.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 rather was a 'reaffirmation 

that 'a man'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, 

'the Constitution extends special safeguards 

to the privacy of the home, just as it protects 

other special privacy 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 

which may -- be lawfully conducted withinthe 

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. 

(Emphasis added. ) 

But the Alaska 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: 

"In Alaska we have also recognized the 

distinctive nature of the home as a place 

where the individual's privacy receives 

special protection. This court has consistently 

recognized that the home is constitutionally 

protected from unreasonable searches and seizures, 

reasoning that the home itself retains a 

protected status under the Fourth Amendment and 

Alaska's constitution distinct from that of the 

occupant's person. 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 

in Alaska. 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 situs of privacy. Privacy 

in the home is a fundamental right, 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 "right of 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 one would doubt 

that the greatest protection under this right should be in 

the privacy of the home. Our former and present constitutional provisions against unreasonable searches and 

seizures has particular application to the home. The 

decisions of this Court, supra, have long recognized the 

special status of the home. The examples are too many 

to set forth situations where legislative enactments of 

this State attach special significance and protection for 

the home. And the statement of 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 is hardly necessary to catalog 

the myriad activities that may 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 is possessed in a "purely personal, 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 yield when -- 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 appropriate public need is demonstrated. 

"Thus we conclude that citizens of the State 

of Alaska have a basic right to privacy 

in their homes under Alaska's constitution. 

This right to privacy would encompass the 

possession - and ingestion of substances such 

as marijuana in a purely personal, noncommercial context in the home unless - the 

state can meet --- its substantial burden - and 

-- show that proscription of possession of 

marijuana ---- in the home issupportable by 

achievement of a legitimate state interest." 

537 P.2d at 5047 (Emphasis added.) 

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 

of marijuana in the home for personal 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 four medical doctors, two 

congressnan and two senators. The report was entitled: 

the 

Marijuana: A - Signal - of Misunderstanding,/E'lrst Report 

-- of The National Commission on - Marijuana -- and Drug Abuse, 

March 1972. 

The Ravin court did not ignore the evidence and 

conclusions presented 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: 

". . . [Tlhe most notable statement that 

can be made about the vast majority of 

marijuana users--experimenters and 

intermittent users--is that they are 

essentially indistinguishable from their 

non-marijuana using peers by any fundamental 

criterion other than their marijuana use." 

(P. 41.) 

". . . [Flrom what 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. ) 

". . . [Allthough a number of studies have been 

performed, at present no reliable evidence 

exists indicating that marijuana causes genetic 

defects in man." (p. 84.) 
". . . [N] o objective evidence of specific 

pathology of brain tissue has been documented. 

This fact contrasts sharply with 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: 

". . . [Mlarijuana use per se does not 

dictate whether 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.) 

". . . [Tlhe fact should be emphasized that 

the overwhelming majority of users do not 

progress to other drugs." (p. 87.) 

And concerning the danger to public safety because 

of the use of marijuana, the Commission stated: 

". . . [Nleither the marijuana user nor the 

drug itself can be said to constitute a 

danger to public safety." (p. 78.) 

". . . [Iln sum, the weight of the evidence 

is that marijuana does not cause violent 

or aggressive behavior." (p. 73.) 

The general public policy considerations of using 

the criminal law to the fullest extent in enforcing laws 

against the possession of marijuana were stated as 

follows: 

"On the basis of this evaluation we 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 the drug 

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 criminal process: 
". . [Olther disturbing 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 times must operate 

on the edge of constitutional limitations. 

Arrests without probable cause, illegal 

searches and selective enforcement occur 

often enough to arouse concern about the 

integrity of the criminal process." (At 

page 145.) 

Moreover, there are many other costs of enforcing the 

marijuana possession laws which 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 

personnel who must 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 cannot understand why society 

chooses to criminalize their behavior with 

so little visible ill-effect or adverse 

social impact, particularly when so many 

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 large part in its final recommendations: 

"[Wle are necessarily influenced by the 

high place traditionally occupied by the 

value of privacy in our constitutional 

scheme. Accordingly we - believe that 

government must --- show a compelling reason 

- to justify invasion ---- of the home in order 

to prevent personal -- use of marijuana. 

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 - rea! son -- forty years - aqo; --7- 

and we do not 

-- find the situation a& more compelling 

for marijuana today. (rat page 142.) 

(Emphasis added.) 

The problems inherent in prosecuting for possession 

of marijuana were echoed by President Carter in a White 

House statement he made on August 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 this more clear than in the 

laws against possession of marijuana in 

private for personal use. 

"There's not a federal prosecutor in the 

United States today who would prosecute 

a case of possession an ounce of marijuana 

or less." 

The American 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 

for personal use. In too many states, 

statutes exact punishment that far exceeds 

the crime. 

"We agree with President Carter who 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 organizations have 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 (the Shafer Commission quoted 

at length herein); 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 the Non-Medical Use of Drugs (Le Dain Commission); 

John Finlator, retired Deputy Director, U.S. Bureau of 

Narcotics and Dangerous Drugs; Official State Study 

Commissions in the states of California, Illinois, Maine 
Massachusetts, 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 the marijuana 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 states areat 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 State with 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 full protection 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 

that we 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 People v. 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 state who, 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 "it cannot be 

doubted that the judiciary has the power to determine the 

true state of facts upon which a law is based." Sinclair, 

194 N.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 

Sinclair was 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 equal protection 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, "we will require that 

the relationship between means and ends be not merely reasonable but close and substantial." Ravin, 537 P.2d at 498. 

As to the second test, it matters 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 "right of privacy" can only 

be overcome by a "compelling state interest." (Art. 11, 

810, 1972 Mont. 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 Sinclair and 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 reports which studied at great length 

and in great depth, the many questions relating to marijuana 

use. 

In Sinclair, the Court relied on the following books 

and reports: Interim Report of the Canadian Government 

Commission of Inquiry, The Non-Medical Use of Drugs (Penguin 

ed. 1970); President's Commission 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 fact made by the 

-40- 
trial court in the case of People v. Lorentzen (Mich. 

1972), 194 N.W.2d 827; R. Bonnie & C. Whitebread 11, 

The Forbidden Fruit And 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 Subcommittee on 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 Levels After Chronic 

Intensive Marihuana Use, 200 N.Engl.J.Med. 

872 (1974): Plasma Testosterone Levels Before 

During and After Chronic Marihuana Smoking, 

291 N.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 CHEMICAL MAKE-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 of marijuana with other mindaltering drugs, we find marijuana 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 greatly with the part 

of the plant used, quality of the seed stock, 

and the growing conditions. 

"The psychoactive ingredient of cannabis 

sativa has been isolated as two isomers of 

tetrahydrocannabinol (THC)although additional 

active ingredients of cannabis sativa may 

be discovered and isolated in the future. 

Thus the strength of any given amount of 

marijuana depends primarily 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 clusters of the female plant, 

which are dried and crushed to make up the 

variable strength mixture. The resin from 

the flowering tops of the mature female plants 

is known as hashish (charas in India) and is 

currently the strongest form of the naturally 

occurring drug because it contains the highest 

concentration of THC. Hashish is as much as 

eight times as strong as ordinary marijuana." 

"Consideration of -- the scientifically observed 

physical and psycho-motor effects of marijuana 

indicates --- that it is overall, the -- least 

dangerous mind-altering drug." Sinclair, 

194 N.W.2d at 882. (Emphasis added.) 

The chemical make-up of marijuana was also set forth in 

Ravin, 537 P.2d at 505. 

THE INCIDENCE --- OF USE OF MARIJUANA AND -- THE NUMBER 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 26 million 

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 18-21 year-olds 
have used it). Only about 2% of the adults 

who have used it were classified by the 

National Commission as 'heavy users' (nore 

than once daily . . ." Ravin, 537 P.2d at 

505. 

As to the number of arrests for marijuana in recent 

years, the Ravin Court stated: 

"The number of persons arrested for marijuana 

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 for marijuana 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 clearly demonstrate that marijuana users 

can hardly be classified as criminals by any stretch of 

the imagination. The unfairness of this situation is 

further illustrated by the fact that in this State 

alcoholism or drunkenness is now regarded as a disease 

and the direction to law enforcement officers who find 

people in a drunken condition is to treat them as needing 

medical help, not as needing incarceration in a jail. 

Section 80-2701 et seq. thru 80-2725, R.C.M. 1947, now 

section 53-24-101 through 53-24-108 MCA. 

COMPARISON OF THE DANGERS - OF USING MARIJUANA AS - OPPOSED 

TO - OPIATES OR - ALCOHOL: 

In Sinclair, the available scientific evidence led 

the Court to conclude that the use of alcohol is more 

dangerous than is the use of marijuana: 

"Comparison of the effects of marijuana use 

on both the individual and society with 

the effects of other drug use demonstrates 

not only that there is no rational basis 

for classifying with 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 the mind-altering drugs is at all 

complete. It is not. Even our society's vast 
experience with the mind-altering 

effects of alcohol has not led to complete 

scientific knowledge of that drug, as the 

Canadian Government Commission of Inquiry 

pointed out: 

"'Little is known as to the specific 

mechanism by which alcohol produces its 

psycho-pharmacological action. As with 

most drugs, alcohol effects, especially 

those resulting from low or moderate 

amounts, depend to a large extent on the 

individual and the situation in which the 

drinking occurs. A drink or two may produce 

drowsiness and lethargy in some instances, 

while the same quantity might lead to 

increased activity and psychological 

stimulation in another individual, or in 

the same person in different circumstances. 

Furthermore, a dose which is initially 

stimulating may later produce sedation.'" 

Sinclair, 194 N.W.2d at 883. (Emphasis 

added. 

In Sinclair, the Court set forth the role that 

alcohol plays in producing acute physical and mental 

problems, and even death, as well as leading to violent 

criminal behavior: 

"Both -- the opiates - and alcohol provide a 

dramatic contrast ----- to the miphysical 

harmfulness of marijuana. With the opiates, 

hiqh levels of tolerance develop, severe 

ph;sical addiction results from repeated use, 

and deaths result from repeated use, and 

deaths resulting from overdosage also occur. 

Occasional social use of alcohol in moderate 

dosage as a mind-altering drug has few 

deleterious physical consequences. However, 

tolerance does develop 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 alcoholism where 

a clear withdrawal syndrome is observable (an 

easily discernible physical shaking and later 

delirium tremens), and death of brain cells, 

mental deterioration and cirrhosis of the 

liver may occur. 

"Damaging effects of alcohol on psychomotor 

coordination are so well 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 

behavior where the role of a drug as a 
precipitating factor in dangerous behavior 

is SO clear.'" Sinclair, 194 N.W.2d at 

883-884. (Emphasis added.) 

The Court in Sinclair also took notice of a Special 

Message to the Michigan Legislature in 1971, wherein 

the Michigan Governor "recognized that the present classification of marijuana with the opiates is irrational" 

but also "provided an illuminating comment on the relative 

danger of alcohol." Sinclair, 194 N.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 a major 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. d It accounts -- for more broken 

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, 

194 N.W.2d at 886. (Emphasis added.) 

The Court in Ravin noted specifically that all 

available evidence indicates that alcohol is a far more 

dangerous drug than marijuana: 

". . . The state is under no obligation 

to allow otherwise 'private ' activity which 

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 ascompared with the far more ---- dangerous 

effectsof alcohol, barbiturates and 

amphetamines. Moreover, the current patterns 

of use in the United States are not such as 
would warrant concern that in the future 

consumption patterns are likely to change." 

Ravin, 537 P.2d at 509-510. 

THE --- USE OF MARIJUANA DOES NOT 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 of violence. 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 is no reliable scientific evidence 

demonstrating that chronic psychosis can 

be caused by marijuana use in dramatic contrast 

to the American experience with alcohol. The 

argument that marijuana 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, 

194 N.W.2d at 885. 

And, quoting from the President's Task Force Report: 

"President's Commission 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, 194 N.W.2d at 885, 

n. 31. 

In Ravin. the Court summarized the available evidence 

as follows: 

"The experts generally agree that the early 

widely-held belief that marijuana use directly 

causes criminal behavior, and particularly 

violent, aggressive behavior, has no validity. 

On the contrary, the National Commission found 

indications that marijuana 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, (quoting Marijuana: 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 common misunderstanding that marijuana 

use leads one 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' 

that marijuana use leads to use of 'hard 

narcotics' has no scientific basis. 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 that marijuana "leads" to 

the use of addicting drugs needs to be 

critically examined. There is evidence 

that a majority of the heroin users who 

come to the attention of public authorities 

have, in fact, had some prior experience 

with marihuana. But this does not mean 

that one leads to the other in the sense 

that marijuana has an intrinsic quality 

that creates a heroin liability. There are 

too many marihuana users who do not graduate 

to heroin, and too many heroin addicts with 

no known prior marihuana use, to support 

such a theory. Moreover there -- is no 

scientific basis --- for such a theory. The 

basic text on pharmacology, ~oodman and Gilman, 

The Pharmacological -- Basis of Therapeutics 

(Macmillan 1960) states quite explicitly that 

marihuana habituation does not lead to the 

use of heroin.'" Sinclair, 194 N.W.2d at 

885. (Emphasis in original.) 

In Ravin, the Court stated: 

". . . Moreover, - the Commission -- and most 

other authorities -- agree that there is 

little validity -- to the theory that marijuana 

use leads ---- to use of more potent and dangerous 

drugs. Although it has been stated that 

the more heavily a user smokes marijuana, 

the greater the probability that he has used 

or will 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. ) 

THE --- NEED 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 State 
of Michigan accepted as true: 

"'From the general public standpoint, the 

general marijuana user would require no 

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 to marijuana 

or because they think they are using too much 

of the drug ordinarily need some guidance and 

some support and not much else. The majority 

of current marijuana users are using but not 

abusing the drug in the sense that one would 

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 is2 horrendous -- drug is equally untrue. 

%riju%a is a drug with potential dangers for ---- some people when taken in conventional doses. 

Marijuana ---- is safe for most people in conventional 

doses. Occasional, recreational use of marijuana 

for most 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, 194 N.W.2d 886-887, 

n. -35. (Emphasis added. ) 

THE PHYSIOLOGICAL AND - PSYCHOLOGICAL EFFECTS OF - USING 

MAR1 JUANA : 

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 of marijuana 

indicates that it is overall, the least 

dangerous mind-altering drug. Observed 

physical effects of marijuana 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 fact negative 

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~ptoms or 'abstinence syndrome' when 

the drug is unavailable 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 

(Bantam ed., 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 consistent with 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, 194 N.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 of marijuana 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. The National 

Commission on Marihuana and Drug Abuse reported 

that among users 'no significant physical, 

biochemical, or mental 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. 

The methodology of certain of these studies 

has been extensively criticized by other 

qualified medical 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 alcohol or tobacco. 

-- But the studies suggesting dangers in intensive 

cannabis use -- do raise valid doubts which 

cannot be dismissed or discounted. Ravin, 

537 p.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 a mild hallucinogen, which 

in view of its lack of any other harmful 

effects, leads us to conclude that there 

is no rational basis for penalizing it more 

severely than the other hallucinogens. 

(Citation omitted.) Indeed, mild hallucinogenic 

effects are reported almost exclusively from use 

of more potent hashish type preparations and 

rarely, if ever, from the use of ordinary street 

variety marijuana. The Canadian Commission 

Report states (pp. 116-117) : 

"'Cannabis is one of the least potent of the 

psychedelic drugs, and some might object 

to its being classified with LSD and similar 

substances. It is often suggested that 

marijuana is a mild intoxicant, more like 

alcohol. . . It would be incorrect to say 

that cannabis in moderate dose actually 

produces a mild LSD experience; the effects 

of these two drugs are p~pchiologically, 

behaviorally and subjectively quite distinct. 

Furthermore, since no cross-tolerance occurs 

between LSD and THC the mechanism of action 

of these two drugs is thought to be different.' 

"The Canadian Commission Report comprehensively 

summarized the various possible psychological 

effect of marijuana 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 to make the user introspective and tranquil. Rapid mood changes often 

occur. A period of enormous hilarity may be 

followed by a contemplative silence.' 

"'Fsychological effects which are typically 

reported by users include: happiness, increased 

conviviality, a feeling of enhanced interpersonal 

rapport and communication, heightened sensitivity 

to humor, free play of the imagination, unusual 

cognitive and ideational associations, a sense 

of extra-ordinary reality, a tendency to notice 

aspects of the environment of which 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 

(subjective aspects of sound and taste perception 

are often particularly 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 spontaneity 
and 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. 

"Less pleasant experiences may occur in 

different individuals, or possibly in the 

same individuals at different times. Some 

of these reactions may 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, 194 N.W.2d 884-885. 

The psychological effects of using marijuana were 

set forth in the Ravin decision as follows: 

"The immediate psychological effects of 

marijuana are typically a mild euphoria 

and a relaxed feeling of well-being. 

The user may feel a heightened sensitivity 

to taste and to visual and aural sensations, 

and his perception of time intervals may 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 in more 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-term effects 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. 

"In extremely rare instances, use of 

marijuana has been known to precipitate 

psychotic episodes; however, the consensus 

of the experts seems to be that the potential 

for precipitating psychotic episodes exists 

only for a limited number of prepsychotic 

persons who could be pushed into psychosis by 

any number of drug or nondrug-related influences. 
"There is considerable debate as to the 

long-term effects of marijuana on mental 

functioning. Certain researchers cite 

evidence of an 'motivational syndrome" 

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 of mental functioning, at least to any 

extent attributable to marijuana use." Ravin, 

537 P.2d at 506-507. 

Moveover, as previously 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, 194 N.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 Court was presented 

with a different primary legal issue, but also in each 

case the Court assessed the facts before its determination. 

The obligations of this Court are no less. Indeed, in 

light of the "right of privacy provision in our State 

Constitution, the duty here was even stronger. 

Perhaps in enacting legislation, the legislature has 

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 little wonder 

that the national organizations which I previously listed, 

and the states which I previously listed, have concluded 

that the possession of small quantities of marijuana 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 determining whether 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 Court must 

recognize a distinction between public conduct which the 

State can legitimately regulate, and private conduct, in 

which the State has no legitimate interest because 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 

citizens which causes no public harm. 

These distinctions were ably expressed by Justice 

Levinson in his dissenting opinion in State v. Kantner 

(Hawaii 1972), 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: 

"I wish 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 violate 
a 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 its prohibition. oreo over, 

this analysis is not meant 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 the wisdom and 

value of legislative policies. 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 legislature wide latitude for experimentation in the promotion of the wublic aood. - But. 

where the state endeavors to - intrudedinto -- .----- - the . individual's private life -- and regulate conduct 

having no public significance, it ---- is the duty 

-- of the courts to offer a haven of refuge where 

the individualmayure vindication of -- his 

riqht to -- be left alone." Kantrer, 493 P.2d at 

317-18, (Emphasis added. ) (~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 so was acting as a "Big Brother" 

by injecting itself into a place where it had no right to be: 

"I find 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 interference with 

the right to possess and use private property. 

"As I understand our constitutional concept of 

government, an individual is free to do whatever 

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 interfere with that 

freedom. As has been said: 
II I . . . the sole end for which mankind 

are warranted, individually or collectively, 

in interfering with 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, against his will, is 

to prevent harm to others. His own good, 

either physical or moral is not a sufficient 

warrant. J.S. Mill, On Liberty, Chapter 1.' 

"Whatever the validity of -- the concept that 

traffic in marijuana 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 

legitimate public interest might warrant state 

interference with what an individual consumes, 

'Big Brother' cannot, in the name of Public 

health, dictate to anyone what he can eat or 

drink or smoke in the privacy of his own home. 

"In my view when the legislature proscribed 

the possession and private use -- of marijuana 

- as a - Public health measure it did so unconstitutionally." Sinclair, 194 N.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, they may 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. 

'Where there is a significant encroachment 

upon personal liberty, the State may 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 

not merely rationally related, to the accomplishment of a permissible state policy.' 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 of marijuana 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 the most personal and 

private experiences possible. For this reason 

I believe that the right to be let alone protects 

the individual in private conduct which is 

designed to affect those areas of his personality, 

so long as such conduct does not produce 

detrimental results. 

"This principle that the State's power to 

restrain private conduct is limited by the 

need to show social injury was 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 

is not affected and is not 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 State may 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. State v. Lee, supra. Because 

the State has failed to establish -- that the 

private, personal -- useof marijuana harms either 

--- the user or society, I would --- 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. (Emphasis added.) (~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 for personal, 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, 152 U.S. 133, 137, [38 L.Ed. 385, 388, 

14 S.Ct. 490 (1894)], is still valid 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 the means 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 is more 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 that matter, injurious to the individual when 

compared to alcohol or tobacco. It cannot be a compelling 

State interest for the State to attempt to protect an 

individual from his own folly by subjecting him 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 by 
Justice Kobayashi in Kantner, where, in his dissent he 

concluded that marijuana possession in the privacy of 

one's home should not be criminalized, but that marijuana 

should be regulated in the same manner 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 of marijuana is also a valid state 

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

(Kobayashi, J. , ming. ) 

His reasons for suggesting this approach were 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 any more 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 

significant percentage of our population 

who would otherwise be 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 to make criminals out of and consequently alienate the youth of today. 

"The use of marijuana 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 

regulate marijuana in a manner 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 law would instill the respect 

of society that is needed for the preservation 

of criminal justice and prospectively decrease 

the criminalization of our younger 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. 

It must 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 Court may 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, 

it was 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 the Alaska 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 certainly not beyond by those cases in 

construing the separate Alaska provision. 

Even when Alaska Constitutions provisions are 

closely akin to those of the Federal Constitution, 

we have stated: 
"'While we must enforce the minimum 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 our Alaska 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 liberty which 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 

(Alaska 1970), 471 P.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: 

"The decision today properly leaves unanswered 

the question of how far the right to privacy, 

in connection with the possession of marijuana, 

extends outside the home. Such a determination 

can be 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 contours of the right to privacy, 

it will be necessary to engage in a critical 

analysis of the facts of each case which presents 

itself for decision. Only in this fashion can 

the right to privacy, outside the home, be 
be determined on a reasoned, coherent 

basis so as to furnish the courts and 

the public with reliable rules 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 

for what "they" do in the privacy of "their" homes. Under 

our constitution however, 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 individual when, 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 the marijuana plants in the defendant's 

home. 

I would accordingly, order that the marijuana plants 

seized in the defendant's home, be suppressed, and order 

that the cause be dismissed.