Defendant Smith was convicted in the Superior Court for Snohomish County, No. 8418, John E. Rutter, Jr., J., on January 12, 1978. Court of Appeals: The court affirmed the conviction of defendant Anderson at 16 Wn. App. 553, holding that his right to privacy in his home did not extend to the possession or delivery of marijuana. Supreme Court: Holding that the criminal penalties for possessing and delivering marijuana prescribed by RCW 69.50.401 do not violate equal protection of the law or the right to privacy or constitute cruel and unusual punishment, and that the lower courts had made no errors in giving instructions, imposing sentences, and issuing a search warrant, the court affirms the judgments.
); Louisiana Aff. of NORML v. Guste, 380 F. Supp. 404 (E.D. La. 1974), aff'd, 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975); United States v. Maiden, 355 F. Supp. 743 (D.Conn. 1973); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); In re Klor, 64 Cal.2d 816, 51 Cal.Rptr. 903, 415 P.2d 791 (1966); People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171, cert. denied, 393 U.S. 970, 89 S.Ct. 411, 21 L.Ed.2d 383 (1968); State v. Anonymous, 32 Conn. Sup. 324, 355 A.2d 729 (1976); Laird v. State, 342 So.2d 962 (Fla. 1977); Borras v. State, 229 So.2d 244 (Fla. 1969), cert. denied, 400 U.S. 808, 91 S.Ct. 70, 27 L.Ed.2d 37 (1970); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975); Marcoux v. Attorney Gen., Mass., 375 N.E.2d 688 (1978); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); State v. Anderson, 16 Wn. App. 553, 558 P.2d 307 (1976). B. Equal Protection
1968); People v. Alexander, 56 Mich. App. 400, 223 N.W.2d 750 (1974); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); Cavaness v. State, 581 P.2d 475 (Okla. Cr.App. 1978); State v. Anderson, 16 Wn. App. 553, 558 P.2d 307 (1976). Contra, Ravin v. State, 537 P.2d 494 (Alaska 1975).
With near unanimity, courts have in fact rejected arguments like the plaintiffs', including that based on "privacy," for a constitutionally-protected right to have and use marihuana in the home. See, e.g., United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939 (1971); State v. Murphy, 117 Ariz. 57 (1977); Laird v. State, 342 So.2d 962 (Fla. 1977); Blincoe v. State, 231 Ga. 886 (1974); State v. Renfro, 56 Haw. 501 (1975); State v. Kells, 199 Neb. 374 (1977); State v. Anderson, 16 Wn. App. 553 (1976). The only contrary decision by an appellate court is that already mentioned, Ravin v. State, 537 P.2d 494 (Alas.
Constitutional challenges to legislation prohibiting the use of marijuana on the ground that such legislation violates a right of privacy have been rejected in cases in which the issue has been raised. NORML v. Guste, 380 F. Supp. 404; Kreisher v. State (Del.), 319 A.2d 31; State ex rel. Scott v. Conaty (W. Va. App.), 187 S.E.2d 119; State v. Baker (Hawaii), 535 P.2d 1394; Laird v. State (Fla.), 342 So.2d 962; State v. Anderson, 16 Wn. App. 553, 558 P.2d 307; and others. Despite the recommendations of the national commission, all states and the federal government, at least up through 1976, still prohibited the use and possession of marijuana.
( Id., at p. 504.) Apparently Alaska stands alone. (See, e.g., State v. Murphy (1977) 117 Ariz. 57 [ 570 P.2d 1070, 1072]; Marcoux v. Attorney General (Mass. 1978) 375 N.E.2d 688, citing at p. 691 the following cases: " United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); Laird v. State, 342 So.2d 962 (Fla. 1977); Blincoe v. States, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); State v. Anderson, 16 Wn. App. 553, 558 P.2d 307 (1976".) We find no violation of the California right of privacy in the mere statutory proscriptions which are challenged here.
[1] Marcum first challenges the constitutionality of RCW 69.50.401, contending that the prohibition against private possession of marijuana violates his constitutional right to privacy. In State v. Anderson, 16 Wn. App. 553, 558 P.2d 307 (1976), review granted, 89 Wn.2d 1002 (1977), Division Two of this court held that the right to privacy does not extend to the possession or delivery of marijuana. That is presently the law of Washington, which we hold binds this court.
State v. Waggoner, supra at 11. See also State v. Anderson, 16 Wn. App. 553, 557-58, 558 P.2d 307 (1976). [4] Since Mr. Merrill challenges the failure of the court to find entrapment as a matter of law, all the evidence and inferences therefrom must be viewed in a light most favorable to the State. So viewed, there is sufficient evidence to create a question of fact on the issue of entrapment, and we find no error in the court's submission of the question to the jury.
State v. Anonymous, 32 Conn. Sup. 324, 355 A.2d 729 (1976). See State v. Anderson, 16 Wn. App. 553, 558 P.2d 307 (1976). Since controlled substances are those which the state board of pharmacy has been delegated to assign a potential for abuse under RCW 69.50.201, we cannot say the legislature was arbitrary in designating possession of a small amount as a misdemeanor while designating possession of a greater amount, with its greater potential for abuse, as a felony.