State Ex Rel. Zander v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT

No. 14330

I N THE SUPREME COURT OF THE STATE O F MONTANA

1978

THE STATE OF MONTANA e x r e l . ,
JAMES ZANDER,

Relator,

THE D I S T R I C T COURT OF THE FOURTH J U D I C I A L
D I S T R I C T OF THE STATE OF MONTANA, i n and
f o r t h e C o u n t y of M i s s o u l a , and t h e HONORABLE
JACK L . GREEN,

Respondents.

O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

For R e l a t o r :

R o b e r t J. C a m p b e l l a r g u e d , M i s s o u l a , M o n t a n a

F o r Respondents:

Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
D e n n y M o r e e n argued, A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
R o b e r t L . D e s c h a m p s 111, C o u n t y A t t o r n e y , M i s s o u l a ,
Montana
E d M c L e a n argued, D e p u t y C o u n t y A t t o r n e y , M i s s o u l a , M o n t a n a

Submitted: June 1 9 , 1 9 7 8

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 re-
ported 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 any-
thing 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-yCrego, 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 super-
visory 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 ~ibertiesUnion and by the County Prosecu-
tor'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 prose-
cuted violate the "due process" requirement of Montana's Consti-
tution?
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 Consti-
tution. A similar provision existed in Montana's 1889 Consti-
tution, Article VIII, Sec. 2. The writ has long been establish-
ed as a part of this state's law and the discretionary use of
this writ in original proceedings before this Court has a hist-
ory 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 limit-
ing defendant to his remedy by appeal in the event of his con-
viction 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 un-
reasonable searches and seizures. Fourth Amendment, U.S. Consti-
tution; ~rticle11, 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 hid-
ing 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 search-
ing the area, they inadvertently find incriminat-
ing 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 poss-
ible hiding places was the closet where the contraband was dis-
covered 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 defen-
dant'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 culti-
vation or use of marijuana is or should be criminalized. This

is patently a matter of state law to be determined by the legis-
lature. 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 legisla-
tive prerogative under the questionable theory that there is
no evidence or policy basis for the statutes and that the legis-
lature 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 compel-
ling 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 con-
stitutional 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 cer-
tain 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 con-
stitutional guarantees and not in isolation. The right of indi-
vidual 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 in-
trusion. 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 com-
pelling 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 consti-
tutional 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. How-
ever, we wish to re-examine our ruling in LeMieux prior to any
trial in this case and accordingly have granted review by super-
visory control for that purpose.
LeMieux was a 3-2 decision reversing the ruling of the
district judge that the statute was unconstitutional. Two mem-
bers 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 stat-
ute 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. Sec-
tion 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 crim-
inal 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 con-
nection 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 - Gainey and Romano is, we think,
Tot,
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 con-
clude 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 statu-
tory presumption that a marijuana cultivator is a marijuana
seller is purely arbitrary. It precludes proof to the con-
trary. It offends the "due process" clause of our State Consti-
tution. 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

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

i/
CLERK OF SUPZEME C Z s m
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~uldbe 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 con-
stitution. 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 un-
constitutionally 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 'reason-
able 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 com-
pelling 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 in-
directly 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 con-
stitutional 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 govern-
mental 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 con-
stitutional right expressly recognized as
essential to the well-being of our society.
The constitutional guarantee of individual
privacy is not absolute. It must be inter-
preted, 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
- - - benefit - - protection of
laws for the of and
other fundamental rights - - citizens.
of its

- com~ellinastate ---- this case
"The L 2
interest in
lies in the protection - - .citizen's home
--- of a
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~nof the
suspect. The purpose of - intrusion had
- the
nothing - - -
to do with enforcement - -
of the
marijuana laws.
 "Protection - - person's property is an
of a
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 - - - case.
- in this
"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 consti-
tutional 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 constitu-
tional 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 con-
stitutional right to protect his property.
The "right of privacy" and search and seizure pro-
hibitions 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 deter-
mination 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 - criminal
all
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 require-
ment 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 govern-
ment 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" - - - "a
and it is -
- -of the right of liberty and pursuits
part -
- happiness."'" (Emphasis added.)
of
And of course, 1972 Mont. Const. Art. 11, S 3 , 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 - - little
to be
empirical basis - - assertion
for that . . .
Given the present - - of knowledge,
state
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 constitu-
tionally 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 possess-
ion 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 - -to - more detailed
us - a
examination of - - - h tto ~rivacvand
- the r i ~ .'-
the relevancy of where the right is exercised
=one - -of the scaleof - scope of -
- - end - - the - the
right to privacy is possession or ingestion
in theindividual's home. - there - any
-- If is -

area of human activity to which a right
--
- privacy pertains morethan a y other,
to -- n
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- lawfully conducted withinthe
- be
privacy and confines - - -
of the home, - may be
but
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 con-
stitutional 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 - - serious
in a
manner with the health, safety, rights
--
and privileges - others - - -the
of or with
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, non-
commercial context in the home unless -
the
state - - - substantial burden -
can meet its and
show that proscription of possession of
--
marijuana - - - - issupportable by
in the home
achievement of a legitimate state interest."
537 P.2d at 5 0 4 7 (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 demon-
strated 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 - Misunderstanding,/E'lrst Report
- of

- - National Commission on Marijuana - - Abuse,
of The - and Drug
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 well-
established brain damage of chronic alcoholism."
(P. 8 5 . )
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. 8 8 - 8 9 . )
". . . [Tlhe fact should be emphasized that
the overwhelming majority of users do not
progress to other drugs." (p. 8 7 . )
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. 7 8 . )
". ..
[Iln sum, the weight of the evidence
is that marijuana does not cause violent
or aggressive behavior." (p. 7 3 . )
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
---
- justify invasion - - - - in order
to of the home
to prevent personal - - marijuana.
use of
We find little in marijuana's effects or
in its social impacts to support such a
determination. Legislators-enacting
prohibition - - -not find such a compelling
-
did - -
son - -
rea! forty years - and we do not
aqo;- - 7 -

find the situation&a
-- more compelling
for marijuana today. ( r a t 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 indica-

tion 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 pro-
tection of the law. But the Court in Ravin also concluded
it had a duty to review the evidentiary basis for the enact-
ment 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 reason-
able 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 - - CHEMICAL MAKE-UP - MARIJUANA:
OF AND OF
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 - - -the
to both
individual and society. Proceeding to a
comparison of marijuana with other mind-
altering 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 - scientifically observed
- the
physical and psycho-motor effects of marijuana
indicates - -it is overall, --
that - 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 - - - MARIJUANA AND THE NUMBER OF ARRESTS:
OF USE OF -- -
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 - USING MARIJUANA AS OPPOSED
OF -
-
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, - - there - -not even a rational
also, that is - -
basis for treating marijuana - - more
as a -
dangerous -- alcohol. This is not to
drug than
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 - alcohol provide a
-- and
dramatic contrast - - - -t h e miphysical
to -
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 classi-
fication 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 - - narcotic, affects the
as a
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 - -be a larger problem
to -
than druss. It accounts - - broken
d
for more
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:
". . . Thestate 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
are
marijuana - t h e individual - - notrious
on -
enough to justify widespread concern, as
least ascompared with- - - dangerous
- the far more
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- -OF MARIJUANA DOES NOT LEAD ONE TO COMMIT CRIMES
- USE
OF IN STARKCONTRASTTOTHEKNOWNPROPENSITIES
- VIOLENCE, - - ---
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 Mis-
understanding, The First Report of the National
Commission on Marijuana and Drug Abuse (March
1972), 70-71.)
THE RELATIONSHIP BETWEEN - - MARIJUANA AND PROGRESSION
USE OF
~ U S OF HARD DRUGS:
--- E-
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, ~oodmanand Gilman,
The Pharmacological - - of Therapeutics
Basis
(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, - Commission
the --
and most
other authorities -- there is
agree that
little validity - - theory that marijuana
to the
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 prone-
ness" and involvement in drug subcultures
rather than to the characteristics of cannabis,
per se. ' " Ravin, 537 P.2d at 507. (Emphasis
added. )
THE - - MEDICAL ATTENTION AS A RESULT - - -
- NEED FOR -- 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
-- marijuana - - absolutely harmless
say that is an
drug is untrue, - - other - -to say that
on the hand,
it i s 2 horrendous - -is equally untrue.
drug
%riju%a - -a -
is - drug with potential dangers for
some people when taken in conventional doses.
Marijuana - - - for most people in conventional
is safe -
doses. Occasional, recreational use of marijuana
for most individuals will be a pleasurable
experience, involving no adverse reactions.
-- majority of recreational marijuana
The vast
users will emerge from their drug experience
without any apparent harm, either to themselves
or - society,'" Sinclair, 194 N.W.2d 886-887,
- to
n. - 3 5 . (Emphasis added. )
THE PHYSIOLOGICAL AND PSYCHOLOGICAL EFFECTS OF USING
- -
MAR1JUANA :
Both the Sinclair and Ravin decisions discussed in
detail the physiological and psychological effects of
using marijuana. The general physiological effects induced
by using marijuana were described in Sinclair as follows:
"Consideration of the scientifically observed
physical and psycho-motor effects 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 with-
drawal syrr~ptomsor '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 saliva-
tion, 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
- -the - of marijuana, - - -
that - use 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.
- the
But - studies suggesting dangers in intensive
cannabis - - raise valid doubts which
use do
cannot be dismissed or discounted. Ravin,
537 p.2dat 506. ( ~ F h a s i s
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 intro-
spective 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 talkative-
ness, 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. Dis-
orientation, 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,
5 3 7 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 8 8 5 .
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 - public in
is
nature, however, society has a greater
- - - the right of controland -
claim to - the
State - -not -
need - showas compelling an
interest - - prohibition.
in its 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 - deter cburts
to
from inquiring - - constitutionality
into the
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 experimenta-
tion in the promotion of the wublic aood. - But.
where the state endeavors to intrudedinto the .
- - -
--
.---- -

individual's private - - regulate conduct
life and
having no public significance, - - - - it is the duty
of - courts to offer a haven of refuge where
- the
the i n d i v i d u a l m a y u r e 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 happi-
ness, 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 - concept that
- the
traffic in marijuana is freighted with a
--
proper public interest, - - extending the
it is
-
concept entirely - - -to sanction
too far
proscription of possession and private use
of - ~lthoughit is conceivable that some
- it.
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- marijuana
- of
as - Public health measure it did so uncon-
- a
stitutionally." 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. ~usticeLevinson, 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 accomplish-
ment 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 them-
selves, 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 - - marijuana harms either
useof
- - - or society, I would - that the
the user hold - -
prohibition of HRS 32g-5 (Supp. 1971) unreason-
ably infringes - - appellants' rights
upon the
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, - not unduly oppressive upon
and -
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. , m i n g . )
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 com-
parable 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 con-
sequently 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 funda-
mentally 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 con-
stitutional standards imposed upon us by
the United States Supreme Court's inter-
pretation 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 un-
doubtedly 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 sub-
stantial 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.