Supreme Court ruling causes Skagit County drug cases to be dismissed

Mar. 7—The Skagit County Prosecuting Attorney's Office is dismissing more than 1,000 drug possession convictions and charges against those currently in the judicial system after a decades-old state law was found unconstitutional.

The state Supreme Court invalidated in a 5-4 decision Feb. 25 the state's "strict liability drug possession statute," which made it illegal to possess illicit drugs.

The court's ruling found charging those possessing illicit drugs, regardless of whether they knew they were in possession of them or not, violated the state and federal constitutions, essentially punishing what it called "innocent nonconduct."

The ruling came in response to a 2016 Spokane case in which police executed a search warrant seeking evidence of stolen vehicles, according to court documents.

Three people were arrested, including a woman who while being booked into jail was found to have a bag of methamphetamine in the coin pocket of her pants, and was then charged with possession of a controlled substance.

At trial, the woman claimed the pants had been purchased for her a few days earlier by a friend who had gotten them at a secondhand shop and that she did not know drugs were in the pants.

A jury found her guilty, saying she had not "met her burden to prove unwitting possession."

The woman appealed, arguing that requiring her to prove unwitting possession violated her constitutional right to due process and that instead the state should have had to prove she knew the drugs were in the pants.

Without the state having to prove a person knowingly possessed illicit drugs, innocent people — for example someone who picked up the wrong jacket at a concert, or the wrong bag at an airport, or a letter carrier unknowingly delivering a package of unprescribed pills — could be held liable.

"The possession statute at issue here does far more than regulate drugs," the ruling states. "It is unique in the nation in criminalizing entirely innocent, unknowing possession."

While his office is complying with the ruling, Skagit County Prosecuting Attorney Rich Weyrich said he has concerns about the impact the ruling will have on the community.

"I'm quite disappointed," Weyrich said. "I think it will lead to more addictions, and less people getting involved in treatment. I think it's going to cause more deaths and more overdoses."

The ruling goes beyond protecting an "unwitting" person. By making the law unconstitutional, the ruling makes possession of drugs legal, he said.

"The idea that we should allow people to run around and use heroin and methamphetamine, in my opinion, is wrong," Weyrich said. "A large part of the crime we see is because of heroin and meth addiction. This (ruling) is certainly going to do nothing to bring the crime rate down and will just create more victims in the community, including the addicts."

For some, the only way to get them to access treatment is through a court order, Weyrich said. The possession of a controlled substance law was one way to get them into treatment.

"Most of the drug cases, what we want is somebody to get treatment," Weyrich said.

Until it was ruled unconstitutional, the law gave those charged with it the opportunity to apply for Skagit County's drug court, where if those charged complete certain requirements they could avoid prison time and have felony drug charges dismissed.

According to a previous Skagit Valley Herald article, about 70% of drug court graduates do not reoffend.

The state Supreme Court ruling has left one person actively involved in drug court no longer eligible to participate, Weyrich said.

"I think it's a disservice to anyone that is trying to get help to take that help away from them," Weyrich said. "Putting drug addicts back on the street, or leaving them on the street now, is what we have to do. Does that do society any good?"

The court's ruling now keeps law enforcement officers from conducting an investigation, making an arrest, or seeking a search warrant based solely on a person possessing an illicit drug.

"There's going to be great opportunities to have contraband back in the community," Mount Vernon Police Chief Chris Cammock said. "Police officers aren't going to have the legal standing to take the contraband even though they can see it."

Cammock worries law enforcement officers are going to be in a situation where if they pull someone over — perhaps for a driving offense — and see drugs, they are going to have to let that person go, potentially to use that drug while driving and causing a crash.

"It's a no-win circumstance," Cammock said. "Do I run the risk of taking the contraband to prevent it from being used and risk being sued for violating individuals' rights, or do I let that contraband go down the road and ... harm someone else as a result of that drug use?"

When officers refer charges on someone for drug possession, there are other factors they take into account to prevent arresting an "unwitting" person, such as whether or not the person has a history of drug use, Cammock said.

"I think anybody in law enforcement is going to support not penalizing an innocent person," he said. "There's way more factors that are taken in. 'Knowingly' was generally in our minds when we were doing investigations and enforcement."

The ruling changes more than 40 years of practice where courts have inferred "knowingly" as part of the law, regardless of whether the Legislature had specified it in the law, the ruling states.

However, after so many years, the Supreme Court determined if the Legislature had wanted to change the wording of the law, it would have done so by now.

"To be sure, at one time, it might have been possible for this court to avoid this constitutional issue by interpreting (the law) as silently including an intent element and thereby saving it from unconstitutionality," the ruling states. "But that time has long since passed ... In 2021, we have overwhelming evidence that the legislature intends the simple possession statute to penalize innocent nonconduct, and we have overwhelming legal authority that this violates the due process clauses of the state and federal constitutions."

Ruling the law unconstitutional leaves the state Legislature needing to decide whether to rewrite the law.

"The way the law was written is troubling to me," said state Sen. Keith Wagoner, R-Sedro-Woolley. "You shouldn't be convicted of something you didn't know about."

While he is concerned about the danger of prosecuting innocent people, Wagoner also worries that the court's ruling will vacate convictions of the guilty.

"I think the court did expose a flaw in the law," he said. "But the all-or-nothing way that (it was implemented) is going to cause a lot of problems in the meantime, until we get this fixed."

Although the timing of the court's ruling makes it difficult for the Legislature to address the issue during this session, at least two bills that would add the "knowingly" element to the law appear to have bipartisan support, Wagoner said.

Cammock and Weyrich said they would both support such legislation.

Wagoner said he has already signed onto one of the bills.

"I hope we get it fixed," he said.

— Reporter Kera Wanielista: 360-416-2141, kwanielista@skagitpublishing.com, Twitter: @Kera_SVH, facebook.com/KeraReports