Pubdate: Sat, 30 Aug 2003
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2003 Fairbanks Publishing Company, Inc.
Author: Dan Rice, Staff Writer
Bookmark: (Decrim/Legalization)


Adults can legally possess as much as a quarter pound of marijuana in
their home, the Alaska Court of Appeals declared in an opinion
released Friday.

The opinion, which stemmed from an appeal in a Fairbanks case, called
personal marijuana use in the home by an adult a right guaranteed by
the state constitution.

"With regard to possession of marijuana by adults in their home for
personal use, (the law) must be interpreted to prohibit only the
possession of 4 ounces or more of marijuana," wrote Court of Appeals
Judge David Stewart in the conclusion of the unanimous decision.

Friday's decision relied primarily on a controversial 1975 Alaska
Supreme Court opinion rendered in Ravin v. State. Written by the late
Fairbanks law icon Jay Rabinowitz, the opinion declared that adults
can possess marijuana for personal use in their home because the
state's interest in prohibiting them from doing so is not great enough
to violate a citizen's right to privacy.

The appeals court declared that the Ravin decision was still the law
despite a 1990 voter initiative that criminalized possession of all
amounts of the drug. The court ruled that voters, who approved the
criminalization measure by a 55-45 percent tally, did not have
authority to change the state constitution.

Friday's decision defined 4 ounces or less of marijuana as a
personal-use amount that is permissible.

Unless there's a successful appeal by the Attorney General's Office to
the state Supreme Court, Friday's decision means that Alaska once
again has the most liberal marijuana laws in the nation.

The Supreme Court would essentially have to reverse itself to make it
a crime again to possess 4 ounces or less of marijuana.

Attorney General Gregg Renkes said in a press release that his office
will petition the Supreme Court to hear an appeal.

"Some of the court's language goes too far by drawing into question
the constitutionality of the current law," Renkes said.

The decision was made in the case of David Noy, 41, a North Pole man
arrested at his Parkway Road house on July 27, 2001. The arrest
occurred after a North Pole Police Department officer on patrol
reported to other law enforcement that he could smell the odor of
marijuana coming from Noy's residence, where Noy and a group of people
were outside barbecuing salmon.

After a debate about whether Noy would allow them in his home,
officers searched Noy's house and found five immature plants and about
11 ounces of harvested marijuana in the form of buds, leaves and stalks.

Officers put all the marijuana except the immature plants in a paper
bag and sent it to the state's crime lab, according to background
information contained in the Court of Appeals decision. But during
trial, the prosecution never entered the bag into evidence, leaving
the jury to rely on testimony and photographs to determine what was
placed in the bag.

After being instructed that the stalks of marijuana plants and fibers
produced from the stalks do not count in determining the weight of
marijuana, the jury found Noy not guilty of a charge of possessing
more than 8 ounces of marijuana but guilty of a lesser charge of
possessing less than 8 ounces.

Renkes contends that District Court Judge Jane Kauvar improperly
instructed the jury on how to measure the aggregate weight of
marijuana, a mistake that allowed him to argue that he possessed less
marijuana than he actually did. The personal use argument never should
have been reached in the Noy case, Renkes said.

In current statutes, 8 ounces of marijuana or more is considered to be
an amount for commercial use, while anything less than 8 ounces is
considered a personal use amount. But when the Legislature changed the
marijuana statutes in light of the Ravin decision, 4 ounces was used
as the dividing line between personal and commercial use.

Friday's decision relied on the 4-ounce figure, claiming that the
current marijuana statute must be interpreted to allow possession of
up to 4 ounces of marijuana in the home.

The decision dismissed Noy's misdemeanor conviction but allows the
Fairbanks District Attorney's Office to retry the case if prosecutors
think they can prove that Noy possessed more than 4 ounces of
marijuana. He cannot be tried again for a charge of possessing more
than 8 ounces because he has already been acquitted of that charge.

Four ounces of weed carries a street value of about $1,200 to $1,600,
said Sgt. Ron Wall, head of the Alaska Bureau of Alcohol and Drug
Enforcement office in Fairbanks.

"Hell, that would last a month or more," Wall said.

Bill Satterberg, the victorious defense attorney who represented Noy,
quipped that 4 ounces would last most of his clients "about a week;
no, make that three days."

While Noy's case is the first time a court with the clout of the Court
of Appeals has upheld the Ravin decision, Noy is not the first
defendant to argue that personal marijuana possession in the home is
guaranteed by the state constitution as determined by the Ravin decision.

In a June decision, Scott A. Thomas, another Satterberg client,
convinced Fairbanks Superior Court Judge Richard Savell to throw out a
misdemeanor pot conviction using the Ravin argument. The argument also
worked for a defendant in a 1993 Ketchikan case.

But since the 1990 voter initiative criminalized all marijuana
possession, the Ravin argument has never made it past the trial-court
level, preventing a high court from analyzing the conflict between
Alaska's constitution and the state's marijuana laws.

Satterberg, reached by phone in Luxembourg where he is meeting with
clients and vacationing, said prosecutors have been diligent in
keeping Ravin from reaching the state's appellate courts. When trial
court judges dismissed cases on the Ravin issue in the past, state
prosecutors have not appealed the decision to a higher court in an
effort to prevent a new interpretation of the marijuana laws.

He said it basically took 13 years for the right case to surface as a
challenge to the 1990 voter initiative.

"I think the state, from the state's perspective, made a very bad
decision in prosecuting a case that probably should have been
dismissed," Satterberg said of the Noy case.

While the appeals court decision clarifies the issue of a statute that
conflicts with the constitution, it also leaves many questions. Under
current law, someone could possess as much as 4 ounces of pot in their
home but could be arrested while transporting it there.

"I think the next question that is going to arise out of this is your
right to privacy in a vehicle if you're not using" marijuana,
Satterberg said.

The decision does allow someone to grow marijuana in their home, he

Friday's decision applies only to Alaska law. Possession of all
amounts of marijuana remains a crime under federal law, meaning that
federal agents could still arrest someone for having small amounts of
the drug in their home.

Satterberg called the Noy opinion a confirmation of people's
constitutional rights, regardless of their moral stance on marijuana.

Gov. Frank Murkowski reacted differently.

"Substance abuse continues to have a devastating impact on the people
of Alaska and our communities," Murkowski said in a press release
issued by his office. "It is regrettable that the Court of Appeals
has, in essence, rejected the will of the people of Alaska who
recriminalized the use of marijuana in a 1990 initiative."
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