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April 19, 1978


Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 12, 1977. The case was heard by Wilkins, J.

Hennessey, C.j., Quirico, Kaplan, & Abrams, JJ.


Narcotic Drugs. Constitutional Law, Police power, Narcotic drugs.

The opinion of the court was delivered by: Kaplan

General Laws c. 99C, § 34, prohibiting the possession of marihuana, is a proper exercise of the police power and, even as applied to the personal possession of a small amount of the substance, does not infringe on the constitutional right of privacy. [63-72]

Lodged in this court for Suffolk County, the action was brought by a number of plaintiffs, for themselves and a class of persons similarly situated, against the Attorney General as defendant. The complaint alleged that the defendant proposed to enforce against the plaintiffs and others a statute, G. L. c. 94C, § 34, which prohibits under penalty the knowing possession of marihuana; the relief sought was a declaration that the statute is unconstitutional at least as applied to the personal possession of a small amount of the substance. The defendant having attacked the complaint by motion to dismiss, the single Justice held that it described a controversy suitable for a declaration, *fn2 and he entered judgment in appropriate form upholding the constitutionality of the statute. He noted that a broad attack on the laws regulating the possession of (as well as the traffic in) marihuana had been repelled by this court in the case of Commonwealth v. Leis, 355 Mass. 189 (1969). *fn3 If the Leis case was to be overruled, he thought it should be done by the full bench. We are not prepared to overrule that 1969 decision, and accordingly we affirm the judgment appealed from.

In the Leis case we disagreed with the contention that the use of marihuana involved a liberty of high constitutional rank. Id. at 195. Therefore the validity of the legislation was to be tested in the first place by inquiring whether it bore a reasonable relation to any permissible object of legislation such as the protection of public health or safety.

We may observe that in the hands of this court, at least, such an inquiry has not been merely pro forma with a preordained Conclusion favorable to the legislation. See Commonwealth v. Dennis, 368 Mass. 92, 96 (1975); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414 (1965); Opinion of the Justices, 322 Mass. 755 (1948). In Leis the record at trial level comprised an inquiry through expert testimony into the medical and related aspects of the marihuana problem. See Marihuana and the Law: A Judicial Opinion, 3 Suffolk U.L. Rev. 23 (1968) (excerpts from trial Judge's opinion). On review, we took note of the scientific evidence and concluded, as had the trial Judge, that the Legislature could believe with reason that the use of marihuana created dangers both to users and to others justifying public control. Marihuana is a psychoactive drug whose immediate effects may include inducement of a state of euphoria or anxiety or panic, reduction in motor control, and alterations of time perceptions and memory. Although the causal links could be disputed, there was ground to suspect that use of the drug was a factor in psychotic incidents experienced by some smokers, in the descent of users to harder and more dangerous drugs, and in the occurrence of highway accidents. As to the last danger, the difficulty or impossibility of testing drivers for marihuana intoxication could be thought to justify a ban on the substance rather than a qualified regulation of it. See Leis, 355 Mass. at 195; 1972 Mass. House Doc. No. 5896, Ninth Interim Report of the Special Commission on Drug Abuse 85-90.

A showing that, since Leis, doubts about the drug had been resolved in its favor beyond reasonable scientific dispute, would portend a different legal result. See State v. Anonymous, 355 A.2d 79 (Conn. Supp. 1976). But the plaintiffs conceded at oral argument and in their brief that a fresh inquiry would yield no different result on application of a "rational relation" test. *fn4 As the single Justice said, the complaint admitted implicitly that marihuana can be harmful in some circumstances. And the most recent judicial opinions (not excluding Ravin v. State, 537 P.2d 494 [Alas. 1975], which within certain limits held unconstitutional a prohibition of possession for private use) have found the apprehension of dangers to health and safety to be rationally based; they mention such risks as psychotic reactions and automobile accidents. See, e.g., State v. Anonymous, supra ; Blincoe v. State, 231 Ga. 886 (1974); State v. Baker, 56 Haw. 271 (1975); State v. Kells, 199 Neb. 374 (1977). *fn5

The plaintiffs contend, however, that legislation which goes to the extreme of forbidding the possession in one's own home of a substance meant for personal use, invades a "zone of privacy" (Griswold v. Connecticut, 381 U.S. 479, 484 [1965]) and cannot be justified constitutionally by a slim demonstration of potential harm; better or more substantial reason would have to be shown. That contention, made in somewhat different form, was likewise rejected in Leis (355 Mass. at 195).

It is true that "privacy" has grown in constitutional estimation as related to certain matters in which individual autonomy is thought to be especially important and desirable. *fn6 Thus it is held that individual choice as to procreation and other core concerns of human existence may be circumscribed by the State only in deference to highly significant public goals. See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973); Framingham Clinic, Inc. v. Selectmen of Southborough, 373 Mass. 279, 285 (1977). And so, in our own decision of Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738-742 (1977), we recognized a constitutional right of independent election, which may as well be called a right of privacy, as to the continuation of life itself: here the individual's choice whether to accept or decline medical treatment is normally beyond veto by the State. See also People v. Privitera, 74 Cal. App. 3d 936 (1977).

The right to possess or use marihuana cannot be readily assimilated in character or importance to the kinds of rights just mentioned (cf. Whalen v. Roe, 429 U.S. 589, 600 n.26 [1977]), but the plaintiffs contend that Stanley v. Georgia, 394 U.S. 557 (1969) (decided after Leis), is close to their case. Stanley was prosecuted for the possession in his home of material claimed to be obscene. The Court wrote that "f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." 394 U.S. at 565. The difficulties of proving that possession of obscene matter in a particular case was with intent to distribute (a state of facts assumed to be subject to criminal punishment) would not "justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid s. . . . We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime." Id. at 568. The plaintiffs think the Stanley case suggests that possession of marihuana in the home merits like immunity from governmental intervention, even though no cognizable First Amendment interest is involved. In this connection they cite dicta from the later opinions in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), and United States v. Orito, 413 U.S. 139 (1973) (and might have added United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 126 [1973]). These cases, upholding prosecutions for public exhibition and transportation of obscene films against constitutional challenge, sought to distinguish Stanley as having been decided "on the narrow basis of the 'privacy of the home,' which was hardly more than a reaffirmation that 'a man's home is his castle.'" 413 U.S. at 66. The Court said the "privacy right encompasses and protects the personal intimacies of the home" (Paris Adult Theatre at 65), and 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." Orito at 142.

This language does not announce a privacy doctrine universally demanding peculiar justification for enforcing the against conduct within private homes. Nevertheless such justification may be required when the effects of the behavior are limited more or less to the hearth. Thus the Paris Adult Theatre and Orito cases were stressing the point that in Stanley the place of the possession, the confinement of the viewing of the material, reduced to a null force, or nearly so, any claim of deleterious public effects which could possibly legitimate the State's intrusion. See also Smith v. United States, 431 U.S. 291, 307 (1977). The Stanley Court had indeed said, replying to the argument that the private reading of obscene matter would cause antisocial conduct, that there was "little empirical basis" for that assertion (394 U.S. at 566) and in all events the "least restrictive alternative" analysis familiar in First Amendment Discussions would require that the State legislate against the antisocial behavior rather than the ideas that caused it. In contrast, in the case of marihuana, we are bound to assume for constitutional purposes that the private use does have public results, does spill over into the public domain and touch matters of legitimate State interest, while the freedom impaired by the penal statute, taken at its highest evaluation, does not reach the level of that freedom conceived by the Court to be implicated in Stanley.

We find direct confirmation for these views in Stanley where the Court speaks to possession of drugs among other contraband: "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. ...

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