“I-692 did not legalize” medical marijuana, say four members of the Washington State Supreme Court in an opinion filed January 21st, 2010, in State v. Fry. “I-692” was the groundbreaking voter initiative which made Washington one of the first states to think they had a law legalizing medical marijuana when approved by a physician in writing.

Therefore, when a patient presents an officer who smells marijuana with a written authorization from doctor, there is still probable cause to believe a crime has been committed, and a search and seizure of the marijuana does not violate the Fourth Amendment prohibition on unreasonable searches and seizures, or Washington Const. Art. 1, sec. 7, which prevents government invasions into private affairs without authority of law, according to the Court.

The “reasoning” of the Court was that the statute makes the written authorization from the doctor an “affirmative defense” which does not negate probable cause to believe a crime has been committed when there is evidence of marijuana.

Justice Sanders had the courage to dissent from the plurality opinion. Four justices of the nine member court concurred, meaning they reached the same result but with different reasoning.

Since the Fry litigation commenced, the legislature amended the statute to provide officers would take only a sample of the marijuana, not all of it, when presented with the written documentation from a doctor. It still does not stop an arrest or a criminal charge. A patient with a perfectly valid authorization could be charged, and his only remedy is to present his written authorization as a defense at trial.

After all, when you are undergoing chemo and radiation for cancer, or have multiple sclerosis, or are dying with intractable pain, you have nothing better to do than attend criminal court proceedings.

Several justices are up for re-election this year, and Justice Gerry Alexander is retiring, leaving his seat vacant. Any constitutional scholars want to run?