Dave Stafford for www.theindianalawyer.com

A man arrested for smoking a blunt in Indianapolis failed to convince the Indiana Court of Appeals that his misdemeanor conviction violated his constitutional rights to liberty and the pursuit of happiness. The appeal also raised the issue of the Hoosier State now being among a minority of states that have yet to legalize marijuana in some form.

John L. Solomon was arrested after a traffic stop in Indianapolis, one of five people in a silver Buick bearing the license plate for a green Ford Explorer. Police found numerous syringes and foil, along with a marijuana blunt discovered where Solomon had been sitting. Police said Solomon claimed nothing in the car was his except the blunt, but at a bench trial more than a year later, Solomon testified he didn’t know about the blunt and that he had told an officer it didn’t belong to him.

Solomon was found guilty of Class B misdemeanor possession of marijuana and sentenced to 20 days in jail, with 14 days suspended. On appeal, he raised an Indiana Constitution argument challenging Indiana’s criminal law against marijuana.

“Solomon claims that criminalizing the mere possession of a single marijuana blunt by an adult who is not driving or otherwise impacting others violates Article 1, Section 1, of the Indiana Constitution and that his conviction should be vacated,” Judge Elaine Brown wrote for the panel in John L. Solomon v. State of Indiana, 18A-CR-2041. “He argues that Ind. Code § 35-48-4-11 may be constitutional in many circumstances and that the challenge here is not a facial one but as applied to the facts of this case.”

“…Solomon asserts that the possession … falls well within the protections afforded by Section 1 and that marijuana brings happiness to some people, whether helping to alleviate a medical condition or for recreational purposes,” Brown wrote. “He argues that thirty-two states have legalized the use of marijuana for medicinal and/or recreational use and that his possession of a small amount of marijuana as a passenger of a vehicle does not adversely affect anyone else.

“He argues that marijuana use was legal in 1851 when the Indiana Constitution was drafted and ratified, that George Washington reportedly cultivated marijuana, and that in the mid-1800s marijuana was legal in the United States and used for medicinal purposes on a small scale,” Brown continued. “He also states that ‘[w]hen immigrants from Mexico and the West Indies began the practice of smoking marijuana around 1900, states began to criminalize the possession or sale of marijuana in statutes that ‘stemmed largely from racism and concern that use would spread.’”

Solomon also noted the Indiana Supreme Court in 1855 found the liquor act unconstitutional under Section 1 in Herman v. State, 8 Ind. 545 (1855).

But the state argued Solomon’s claim was waived because it was not raised in the trial court and that Article 1, Section 1 of the Indiana Constitution contains no judicially enforceable rights, among other arguments.

The COA panel agreed that Solomon’s argument had been waived, but Brown concluded, “Even if Solomon did not waive his claim and his claim is justiciable, we conclude that reversal is not warranted.”

“Some states may have elected to permit the use of, and de-criminalize the possession of, marijuana under certain circumstances. Other states have not elected to do so,” she wrote. “The Indiana legislature has not repealed Ind. Code § 35-48-4-11. The extent to which Solomon’s possession of marijuana under these circumstances constituted a criminal offense is a legislative determination and not a judicial one. Solomon has not established that he had a constitutional right to possess marijuana or that Ind. Code § 35-48-4-11 violates Article 1, Section 1, of the Indiana Constitution as applied to him.”

Indiana University Robert H. McKinney School of Law professor Joel Schumm represented Solomon in this case. “This is an issue of first impression in Indiana, and I plan to seek transfer to the Indiana Supreme Court,” Schumm said in an email to Indiana Lawyer.

The Court of Appeals decision comes as some lawmakers in both parties in the Indiana General Assembly have introduced bills to legalize medicinal or recreational marijuana, despite the opposition of Republican Gov. Eric Holcomb. So far, no bills have been scheduled for committee hearings at the Statehouse.