Monday, June 09, 2008

Marijuana and privacy in the home 50 page dissent

Justice Connor, in a separate concurring opinion,
also pointed out the nature of the problems that will undoubtedly
arise concerning the invocation of the right of
privacy and the appropriate test to apply:
"The decision today properly leaves unanswered
the question of how far the right to privacy,
in connection with the possession of marijuana,
extends outside the home. Such a determination
can be made only when we are presented with
specific facts against which the individual's
claim of privacy can be measured, as opposed
to the state's assertion of power to control
the possession of marijuana. Under the test
we have employed in determining the scope of
the right to privacy, it is necessary to balance
these conflicting claims and determine, whether
the state's prohibition bears a direct and substantial
relationship to effectuating a legitimate
state interest.
"It is certain that the right to privacy does
not vanish when one leaves the home. There
are certain aspects of personal autonomy
which one carries with him even when he
ventures out of the home, though the claim
to privacy diminishes in proportion to the
extent that one's person and one's activities
impinge upon other persons. But, in order
to trace the contours of the right to privacy,
it will be necessary to engage in a critical
analysis of the facts of each case which presents
itself for decision. Only in this fashion can
the right to privacy, outside the home, be
be determined on a reasoned, coherent
basis so as to furnish the courts and
the public with reliable rules of action.
Much definitional work, therefore, remains
to be done in the cases yet to be determined."
Ravin, 537 P.2d at 516.
Concerning the analysis and observations of Justices
Boochever and Connor, less cannot be said concerning our
duty to interpret out own constitution.
As discussed earlier in this opinion, I am sure there
is nearly universal agreement that the right of privacy
exists in the home if it exists anywhere. The difficult
question is in deciding what kind of activity should be
protected in the home from the intrusions of the State.
Agreement, on this subject seems to depend directly on
whose ox is being gored. Too often we want protection
for what "we" do in the privacy of "our" homes but not
for what "they" do in the privacy of "their" homes. Under
our constitution however, it is the function of this
Court to permit all conduct in the privacy of the home
as long as a countervailing compelling State interest does
not take a higher precedence.
Based on the available evidence as to the lack of
public harm (and, indeed, even the relative lack of harm
to the individual when, compared to the use of alcohol and
perhaps also tobacco), I find no difficulty in determining
that a compelling State interest did not exist for the
police to seize the marijuana plants in the defendant's
I would accordingly, order that the marijuana plants
seized in the defendant's home, be suppressed, and order
that the cause be dismissed.

Neighbor turns evidence over to police

M r . J u s t i c e John Conway Harrison dissenting:
I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both
the Coburn case and the Brecht case have been p a r t of our
case l a w f o r several years and t h a t a t least one l e g i s l a t u r e
has had the opportunity t o change the law established i n
these opinions, I f e e l now, as I did when I dissented t o
those opinions, t h a t we w e r e e s t a b l i s h i n g bad law.
Here, we have a p r i v a t e c i t i z e n , who i n no way can be
considered an agent of the S t a t e , turning over evidence t o
the S t a t e t h a t she had procured i n an assumed t r e s p a s s on
her neighbors' property. She had no other i n t e r e s t than t o
enforce the law, and her a c t of turning over the evidence t o
the s h e r i f f ' s o f f i c e is d i f f e r e n t from t h a t of H i l l i s i n the
Coburn case, where H i l l i s had a previous agreement with the
police t o g e t the evidence from h i s employee's pocket. I
believe under the f a c t s here Coburn is c l e a r l y d i s t i n g u i s h a b l e .
Prior t o Brecht and Coburn the purpose of the exclusionary
r u l e was t o guarantee t h a t the S t a t e and i t s authorized
representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l
r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l
police a c t i v i t y . It did not encompass i l l e g a l searches by
p r i v a t e individuals; its basic purpose, as s t a t e d above, w a s
t o deter police a c t i v i t y and thereby guarantee the p u r i t y of
t h e j u d i c i a l process. Once we extend the exclusionary r u l e
t o p r i v a t e persons, a s we a r e doing here, said extensions
can and w i l l extend the r u l e beyond any l o g i c a l purpose.
For these reasons I would r e v e r s e t h e D i s t r i c t c o u r t ' s order
of suppression and send the case t o t r i a l .