State v. Murphy

• Citation: 570 P.2d 1070,117 Ariz. 57
• Decision Date: 04 October 1977
• Docket Number: No. 3896,3896
• Parties: The STATE of Arizona, Appellee, v. David Allen MURPHY, Appellant.
• Court: Supreme Court of Arizona

Page 1070

570 P.2d 1070

117 Ariz. 57

The STATE of Arizona, Appellee, v. David Allen MURPHY, Appellant.

No. 3896.

Supreme Court of Arizona, In Banc.

Oct. 4, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III and Thomas G. Bakker, Asst. Attys. Gen., Phoenix, for appellee.

Charles Anthony Shaw, Prescott, for appellant.

Young Lawyers Section, State Bar of Arizona; Arizona Civil Liberties Unions; Arizona Association of Drug Abuse Professionals; National Organization for Reform of Marijuana Laws by Charles K. Ayers, Garry B. Bryant, El Mirage, Willis E. Higgins, Michael L. Piccarreta, and Alan M. Schiffman, Phoenix, brief amicus curiae.

CAMERON, Chief Justice.

This is an appeal from a judgment of the court sitting without a jury finding the defendant guilty of possession of marijuana, A.R.S. § 36-1002.05. Imposition of sentence was suspended for one year under terms and conditions not pertinent to this appeal.

We must answer three questions on appeal:

1. Does the constitutional right of privacy of the Arizona and United States Constitutions render unconstitutional a ban on non-commercial use of marijuana by adults in the home?

2. If the act is constitutional, was there sufficient evidence to sustain a conviction under the facts in the instant case?

3. Is 0.3 grams a "usable amount" of marijuana?

The facts necessary for a determination of this matter are as follows. On 25 November 1975, the Prescott Police Department obtained a search warrant for defendant's mobile home residence. The police were looking for a key to a 1972 Dodge Monaco automobile in connection with a joyriding incident. While searching the mobile home they found two film canisters which contained marijuana seeds and 0.3 grams of marijuana. The canisters were found on a ledge in the kitchen in plain view. Defendant was charged with possession of marijuana. A motion to dismiss was filed contending that the marijuana laws were unconstitutional as applied to non-commercial use by an adult in the privacy of his own home. The motion was denied and the matter tried to the court without a jury. The defendant was found guilty and appeals.

An amicus curiae brief was filed by the Young Lawyers Section of the State Bar of Arizona, the Arizona Civil Liberties Unions, Arizona Association for Drug Abuse Professionals, and the National Organization for Reform of Marijuana Laws (NORML).

IS THE STATUTE CONSTITUTIONAL?

Defendant contends that when the statute prohibiting the possession of marijuana is applied to private use, it is an unconstitutional invasion of privacy. Heavy reliance is placed on the Alaska Supreme Court decision which held that the right of privacy in the Alaska Constitution protected the non-commercial "purely personal" use of marijuana in the home:

"However, given the relative insignificance of marijuana consumption as a health problem in our society at present, we do not believe that the potential harm generated by drivers under the influence of marijuana, standing alone, creates a close and substantial relationship between the public welfare and control of ingestion of marijuana or possession of it in the home for personal use. Thus, we conclude that no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual's home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied." Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

The right to privacy section of the Arizona Constitution reads as follows:

" * * * No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Art. 2, § 8, Arizona Constitution.

Arizona's constitutional right to privacy, in common with many other states' constitutional right to privacy provisions, is as specific as Alaska's. A reading of cases from other jurisdictions indicates that Alaska stands alone. Our state constitution provides no impediment on privacy grounds to the criminalization of the possession of marijuana in the home. Admittedly, the right of an individual to be free from unreasonable searches and seizures is more strictly applied to home situations. But that extra protection we rightfully give to the home does not restrict the power of the legislature to make possession of marijuana in or out of the home a crime. It goes only to the power of the police to enter a home in search of evidence of that crime. The right to possess marijuana in a person's own home is not a basic constitutional right and is not, we believe, made so by invocation of the right of privacy provisions of the Arizona Constitution.

Neither do we find a violation of defendant's federal constitutional rights. Although the right of privacy is not specifically mentioned in the United States Constitution, the United States Supreme Court has found it implicit in various rights guaranteed in the Bill of Rights, but only in connection with the exercise of certain personal rights that can be deemed " fundamental" or "implicit in the concept of ordered liberty." See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The class of rights deemed to be "fundamental" for right of privacy purposes includes activities relating to marriage, procreation, contraception, family relationships, child rearing and education. No federal or state case of which we are aware has yet declared the possession or ingestion of marijuana in the home to be a "fundamental right." We, therefore, see no basis for finding a violation of any federal constitutional right to privacy.

The defendant and amici contend that this case is controlled by the United States Supreme Court case of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and cases following. Stanley v. Georgia was a First Amendment case dealing with alleged obscenity. The court stated:

"It is now well established that the Constitution protects the right to receive information and ideas. 'This Freedom (of speech and press) * * * necessarily protects the right to receive * * *.' (citations omitted) This right to receive information and ideas, regardless of their social worth (citation omitted) is fundamental to our free society. Moreover, in the context of this case a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home that right takes on an added dimension. * * * " Stanley v. Georgia, 394 U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 549.

The United States Supreme Court went on to say:

"We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. (footnote omitted) Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to the mere possession by the individual in the privacy of his own home. * * * " Stanley v. Georgia, 394 U.S. at 568, 89 S.Ct. at 1249-50, 22 L.Ed.2d at 551.

There is a fundamental First Amendment right to receive information and ideas both in and out of the home, and Stanley, supra, holds that it is permissible to possess for use in the home items which are in fact obscene and therefore presumably not subject to the protection of the First Amendment. The court is still concerned, however, with First Amendment rights and a determination as to the extent of protection of these rights. There is no such right or protection afforded the possession of narcotics. There is no fundamental right to possess marijuana. As Footnote 11 in Stanley stated:

"What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal." Stanley v. Georgia, 394 U.S. at 568, n. 11, 89 S.Ct. at 1249-50, 22 L.Ed.2d at 551.

We do not believe that Stanley and its progeny control this case.

The remaining constitutional question is whether the legislature was within its power to prohibit the non-commercial use of marijuana by an adult in the home. Defendant contends that there was no rational or reasonable basis for prohibiting such use.

Both before the trial court and in briefs before this court, extensive evidence and authority were presented on behalf of the defendant to show that marijuana use was not harmful or that if it did harm the user it was less harmful than the legal drugs, alcohol and...