Recentlly, measures to legalize marijuana have been introduced in Washington and New Hampshire. Earlier this year simillar measures were introduced in California and Massachusetts. Other states are considering proposals which would either legalize medical marijuana or decriminalize its possession. In California, sufficent signatures have been raised to place legalization on the ballot.

The Washington bill would mandate the sale of marijuana in the 160 state run liquor stores and it place a 15 per cent tax on the sales. In Washington, as in other states, measures to reform marijuana laws are largely motivated by the need to find new sources for taxes.

According to Allen St. Pierre, executive director or NORML, a marijuana advocacy organization, fourteen states legalize medical marijuana and thirteen states passed decriminalization statutes.

While there is increased support for reform of marijuana laws it is unlikely that marijuana will be legalized in any state this year. There is still much opposition. Ron Brooks, president of the National Narcotics Officers’ Associations’ Coalition, for example, points out that legalization may lead to more automobile accidents.

But the stimulus for reform is growing and we are likely to see major change over the next several years. After all fifteen years ago medical marijuana was unheard of.

In 1996 California voters approved Proposition 215 which approved the medical use of marijuana. In 2003 the state legislature passed Senate Bill 420 which attempted to regulate the medical use of marijuana. Among the provisions of SB 420 was a rule limiting the amount of medical marijuana an individual may possess to eight ounces and six plants. A second provision created a voluntary ID card for those who possess no more marijuana than the statute’s limits.

Patrick Kelly was arrested and convicted for possession of seven plants and twelve ounces of marijuana in his house even though he has the required permission from a doctor to use medical marijuana. The Court of appeals reversed his conviction finding that limits on the amount of medical marijuana one may possess is an unconstitutional modification to Proposition 215 and that the ID cards which are only available to those who possess less than eight ounces are also unconstitutional.

The state constitution prohibits the legislature from modifying a proposition enacted by a vote of the people. Both sides admit that any limit on the amount of medical marijuana a person can possess cannot exceed what a person needs and that different individual may need different amounts. Both sides also want to save the medical marijuana cards.

Now it is up to the Supreme Court. It has ninety days to rule.

The Fifth Circuit Court of Appeals found a lack of exigent circumstances to support a warrantless search and reversed Ariel Menchaca-Castruita’s conviction for possession for sale of marijuana

Mr. Menchaca rented a house in McAllen, Texas, In the three month period after he rented the house he did not pay any rent. The landlords decided to make a personal visit to the residence. They knocked on the door and their was no answer. They saw him through a bedroom window and he opened the door to talk to them. He offered to pay the rent but they insisted on coming into the house to see what condition it was in. When they entered they saw a bundle of marijuana. They called the police and Menchaca left the home. Before he drove away Menchaca threatened the landlord with a tire iron but was unable to make contact.

The police arrived and after talking to the landlords they immediately searched the residence. After Menchaca was arrested he made a motion to suppress the evidence on the grounds that the search was committed without a search warrant. The government responded that a search warrant was not necessary. The government claimed that the search was justified by exigent circumstances. The government pointed out that:

(1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders

The Fourth Amendment requires that prior to searching a private residence the police get a search warrant. But there are a limited number of exceptions to the rule. One of the exceptions is that the police may search a residence without a search warrant if exigent circumstances exist. Among the factors to be considered in determining whether or not exigent circumstances exist are.

(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

The Fifth Circuit found that the government had not provided any evidence that there was any danger to the officers or that the evidence might be destroyed. On the contrary, the evidence indicated that Menchaca had left the residence and that there was no evidence that anyone was still in the building. Furthermore it was on a week day and the officers would have no trouble getting a magistrate to sign a search warrant. In support of the reversal of the trial court ruling that the search was constitutional the appellate court found that;

(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.

As a result the court found that it was unlikely that anyone else was in the building or that the police were in any danger. As a result it reversed the conviction finding that there were not exigent circumstances supporting the search and that Menchaca’s Fourth Amendment right to be secure in his property had been violated.