Source: Anchorage Daily News (AK)
Author: Sean Cockerham
Published: September 4, 2003
Copyright: 2003 The Anchorage Daily News
Contact: [email protected]
Juneau -- So, is pot legal in Alaska now?
Alaska law enforcement agencies are split in their reaction to last week's state appeals court decision that adult Alaskans have the right to possess a modest amount of marijuana in their homes for personal use.
Anchorage police will continue to enforce a pot ban. But the Alaska State Troopers will not, according to Public Safety Commissioner Bill Tandeske.
State prosecutors, who handle cases for both troopers and Anchorage police, have not figured out what to do about small home pot busts. The state plans to ask the Alaska Supreme Court to review the ruling by Alaska Court of Appeals.
Susan Parkes, chief of the criminal division of the Alaska Department of Law, noted that the appeals court ruling came out on Friday, before the long Labor Day weekend, and the state has had little time to digest it.
"Right now we are taking a look at (the court decision) to determine what our avenue of appeal is going to be," she said. "Once we do that we will look at 4-ounces-or-less cases, and what our policy is going to be."
State troopers and police do not focus much on busting people for small amounts of marijuana at home. But it does happen.
In the case of David Noy, a North Pole man convicted in 2001 after he was found with marijuana in his home, the appeals court determined: "Alaska citizens have the right to possess less than four ounces of marijuana in their home for personal use."
Bill Satterberg, the Fairbanks defense attorney who argued the Noy case, said the state has no choice but to stop prosecuting people for having a small amounts of pot at home.
"Until things change, the court of appeals ruling is the law," Satterberg said. "When we cease to recognize the rule of law in this country, then we have some serious problems."
The ruling, based on the broad right to privacy guaranteed in Alaska's Constitution, does not affect most of the state's marijuana laws, Parkes said. People will still be prosecuted for selling marijuana, possessing any amount of it outside of their own home, and having 4 ounces or more at home, she said.
Possession of any amount of marijuana is still illegal under federal law, whether in Alaska or anywhere else in the United States.
U.S. Attorney Tim Burgess would not say how federal prosecutors would react if asked to take on small marijuana possession cases the state could no longer pursue.
"We get (different types of) cases referred to us all the time," Burgess said. "We look at a lot of these on a case-by-case basis and balance them with a lot of other things we are doing."
Tandeske said he does not expect that state troopers will refer small home pot bust cases to federal prosecutors.
"They are strapped for resources like everyone else," Tandeske said.
He said that the troopers will look to the Department of Law for direction. But in light of the new ruling, he said, "We wouldn't file a case on it."
He expects that if troopers came across a small amount of marijuana in a person's home they would just destroy it, since it remains illegal under federal law.
State troopers are more interested in dealers and do not go hunting for people who have a small amount of marijuana in their homes for their own use, Tandeske said. Troopers tend to be in a person's home for another reason when they come across pot, he said.
Anchorage police do not plan to let the ruling affect their operations, said Ron McGee, spokesman for the police department.
"If we are aware of marijuana, we will go after it," he said.
McGee said Anchorage police will continue referring home pot bust cases to state prosecutors. He said a case could be made that, if people have marijuana in their homes, they must have broken the law in the course of getting it there.
But Robert Wagstaff, an Anchorage defense attorney, said that argument is without legal basis and would never hold up in court.
"If they persist in that, then I suppose they will be sued for it," Wagstaff said.
Wagstaff is a veteran of Alaska's marijuana battles. He argued the landmark 1975 Alaska Supreme Court case of Ravin v. State, which was the basis for last week's state appeals court ruling.
In that case the state's high court ruled that the law banning home use and possession of marijuana by adults violated the constitutional right to privacy. The Legislature then decriminalized possession of small amounts of marijuana at home, giving Alaska the most liberal marijuana laws in the nation.
But in 1990 Alaska voters passed a ballot initiative that criminalized possession of any amount of marijuana. Small amounts carried a penalty of up to 90 days in jail and a $1,000 fine.
Even so, law officers often did not refer small busts to prosecutors, said Parkes, the state criminal attorney. An officer might just destroy the marijuana, she said, unless the possession charge is included with other criminal charges.
"Since the Ravin decision, the number of referrals of those types of cases has been fairly low," Parkes said.
But Satterberg, the Fairbanks defense attorney, said he has seen it happen a lot. Usually defendants in such small cases get offered a plea deal, such as probation and no permanent record, he said.
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