Search Violated Medical Marijuana Patient’s Rights, Say ACLU and WACDL

December 8, 2008

The ACLU of Washington and the Washington Association of Criminal Defense Lawyers (WACDL) say that law enforcement officers violated the rights of a medical marijuana patient in Stevens County when they searched his home and arrested him for possessing marijuana. The ACLU-WA and WACDL also contend that he was wrongly prevented from defending himself on grounds that he was a medical marijuana patient. The organizations have filed an amicus brief in support of his appeal to the Washington Supreme Court. "The purpose of the state's Medical Use of Marijuana Act is to protect patients from being treated like criminals," said Alison Holcomb, director of the ACLU-WA’s Drug Policy Project. "Our courts need to ensure that patients who are trying to comply with the law can exercise their legal right to use medical marijuana." The case (State v. Fry) stems from an incident in December 2004, when Stevens County Sheriff’s deputies went to the home of Jason and Tina Fry based on a tip that marijuana was being grown there. The officers also said that they could smell marijuana smoke as they approached the front door. Jason Fry told the officers that he was an authorized medical marijuana patient and asked them to leave. Tina Fry then showed the officers his physician's authorization to use marijuana under the state's medical marijuana law, which was adopted by a voter initiative in 1998. Nonetheless, the officers obtained a search warrant and discovered marijuana plants during a search. Fry was charged with the manufacture and possession of marijuana. A trial court convicted him, and a state appeals court upheld the conviction. Fry is seeking to have the Washington Supreme Court overturn his conviction. The ACLU-WA and WACDL support Fry's contention that the deputies should not have been allowed to search his home and that the marijuana they found should not have been accepted as evidence against him. Once the deputies saw his physician's written authorization to use medical marijuana - confirming his assertion that he was exercising his rights under state law - they had no reason to believe that he had committed a crime and to seek a warrant. The amicus brief also cites the Washington Constitution's strong protections against unreasonable searches. Further, the ACLU-WA and WACDL are challenging that at his trial Fry was not allowed to present in his defense the fact that he was a medical marijuana patient. The state has argued that his diagnosis—severe anxiety, anger, and depression—was not a "terminal or debilitating medical condition" included in Washington's Medical Use of Marijuana Act and therefore his physician’s authorization is not a valid defense. The ACLU-WA and WACDL contend that Fry should be presumed innocent if he honestly believed that his doctor's authorization was legitimate. Courts have admitted a similar defense in trespassing cases when defendants reasonably believed that the owner of the premises would have permitted them to enter; and in theft cases when defendants obtained property openly and in good faith. "The Court shouldn't allow patients to be punished if their doctor erroneously authorizes their use of marijuana," said the ACLU-WA's Holcomb. Cooperating attorneys Paul Lawrence and Matthew Segal of K&L Gates, WACDL attorney Suzanne Elliott, and the ACLU-WA's Holcomb wrote the amicus brief.