GOOD LAW EMERGES FROM BAD POT CASE

During the past few years, we have not been bashful about expressing
our opinion on several marijuana-related issues that have come up
before the state Legislature.

We support the decriminalization of possession of small amounts of
marijuana. We support the use of medical marijuana by the chronically
ill, if recommended by a doctor. We don't support the legalization of
marijuana for recreational purposes.

So you might think we were disappointed to learn Tuesday that the New
Hampshire Supreme Court had overturned the conviction of David Orde,
the well-known Lull Farm owner who was found guilty last fall after
admitting to growing marijuana at his Hollis home.

We're not.

That's because a much more important principle was at stake here in
what turned out to be a 28-month legal battle prompted by the
discovery of 16 marijuana plants on the deck of his Blood Road home in
the summer of 2008: Our constitutional right to privacy and protection
against unreasonable searches of our property.

On July 29, 2008, Hollis police officer Angelo Corrado drove to Orde's
home to serve him with a complaint about an unlicensed dog. When no
one answered his knocks at a side door, the officer looked around and
saw there was a deck attached to the rear of the home about 30 feet
away.

While there was no pathway leading to the deck, Corrado walked through
a small opening between some lilac bushes to reach the deck, where he
discovered 16 potted marijuana plants.

At that point, he contacted his supervisor, Sgt. Richard Mello, who
later joined him on the deck and confirmed the plants were marijuana.
Mello instructed a police dispatcher to contact Orde at his nearby
farm and to meet the two officers at his home.

Once there, Orde admitted the plants were his and was arrested on
charges of manufacturing marijuana, a felony punishable by up to 31/2
to seven years in prison. Police later obtained a search warrant for
Orde's home and found "additional incriminating evidence," according
to court documents.

Orde and his attorneys fought to suppress the discovery of the
marijuana plants in court, arguing Corrado had no right walking across
his property to his deck and thereby violated his constitutional right
to privacy.

But Hillsborough County Superior Court Judge James Barry disagreed,
allowed the plants to be introduced as evidence and ultimately
sentenced Orde to 60 days in jail, pending the appeal of his
conviction to the Supreme Court.

That decision came down Tuesday, when the high court reversed the
trial court's ruling on the suppression of the evidence, agreeing with
Orde that the officer violated his privacy rights. As a result, the
discovery of the plants, Orde's statements to police and any evidence
obtained through the search warrant should not have been admissible.

The case now returns to the lower court for reconsideration in light
of the new ruling.

The only judge to dissent from Associate Justice Gary Hicks' ruling
was Senior Associate Justice Linda Dalianis, of Nashua, who reasoned
that Orde should have had no reasonable expectation of privacy on the
deck of his home.

While we don't condone the illegal use of marijuana, we can't help but
lament the extraordinary amount of time, resources and money that went
into this case, particularly when our state court system is facing
serious staffing and funding woes.

At a time when some state courts have virtually shut down all civil
trials, it's hard to believe an expired dog license and some pot
plants could trigger a series of actions that made it all the way up
to the Supreme Court. Surely, there must have been some opportunities
along the way to resolve this case in a more judicious manner.

Since that didn't happen, however, we'll take some comfort in that our
highest court used the opportunity to reinforce a principle most hold
sacred: That we all have a constitutionally protected expectation of
privacy on our own property.

[SIDEBAR]

KEY POINTS:

BACKGROUND: The state Supreme Court essentially overturned the
conviction of David Orde on charges related to growing marijuana at
his home.

CONCLUSION: While we don't condone the illegal use of marijuana, we
treasure our constitutional right to privacy even more.