Source: Anchorage Daily News (AK)
Author: Sean Cockerham, Anchorage Daily News
Published: September 17, 2003
Copyright: 2003 The Anchorage Daily News
Contact: [email protected]
Marijuana: Attorney general wants police to investigate cases regardless of amount of drug.
Juneau -- State troopers and local police should work to build federal cases out of marijuana use that a state appeals court has declared to be legal under state law, Alaska Attorney General Gregg Renkes said Tuesday.
In a memo to state prosecutors and the head of the Alaska State Troopers, Renkes said that law enforcement agencies should not make arrests or cite people for possessing modest amounts of marijuana for personal use at home.
But they should investigate because of the potential for a federal prosecution, he said.
"This includes seizing and treating as evidence all marijuana found, even if under four ounces in the home, and writing reports documenting the investigation," Renkes wrote in the memo.
Renkes' instructions follow a recent Alaska Court of Appeals ruling that adults have the right to possess less than four ounces of marijuana in their home for personal use. The ruling was based on the broad right to privacy guaranteed in the state constitution.
Renkes is asking the appeals court for a rehearing, arguing that the state was not given a chance to show that marijuana is harmful and that the state has a legitimate interest in restricting its use for the sake of the public.
But, in the meantime, the appeals court decision is the law. And Renkes said there has been some confusion over how law enforcement agencies should react.
"We have to respect the language of the appeals court decision," Renkes said Wednesday.
But there are still examples where the state could prosecute someone for having a little marijuana for personal use in their home, Renkes said. It could be a probation violation or minors might be involved, he said.
Also, Renkes said, possession of any amount of marijuana remains illegal under federal law.
So Alaska's law enforcement agencies should investigate, seize marijuana as evidence, and pass their reports on to the district attorney's office, Renkes said. The state will then look at whether the circumstances allow a state prosecution or if the matter should be referred to the U.S. Attorney's office to decide if it warrants prosecution in the federal courts.
U.S. Attorney Tim Burgess in Anchorage acknowledged that federal prosecutors have a lot of other work to do but would not comment on the likelihood of his agency taking on small marijuana possession cases referred by the state.
"We don't disclose what our threshold for prosecutions are," Burgess said. "That would be a road map for folks who are interested in violating the law."
Bill Satterberg, the Fairbanks defense attorney who argued the appeals court case against the state's marijuana law, said he doubts there will be federal prosecutions.
"Practically speaking I seriously doubt the federal government is going to expend the amount of resources that it will take to prosecute a four ounces or less case," Satterberg said.
Renkes said some cases might be more interesting to federal prosecutors than others -- if a gun is involved, for example. But he would not rule out trying to get the federal courts to take cases where people are just found with small amounts of marijuana in their homes. It will be a case-by-case decision, he said.
Bruce Mirkin, of the Washington, D.C.-based Marijuana Policy Project, charged that Renkes is violating a right the courts have said is guaranteed under Alaska's constitution by working to get federal prosecutions in the small marijuana cases.
"The attorney general here is declaring quite openly that he is wanting to conspire to undermine and circumvent the state constitution that he presumably took an oath to uphold,"
Renkes said smoking marijuana is not in the state constitution. And the state has not had a real chance to show the courts that the constitutional right to privacy should not cover it, he said.
The appeals court ruling came down last month in the case of David Noy, a North Pole man convicted in 2001 after he was found with marijuana in his home.
It affirmed the landmark 1975 Alaska Supreme Court case of Ravin v. State and went against a 1990 ballot initiative in which Alaska voters criminalized possession of any amount of marijuana.
It's unclear how much practical effect this month's court ruling will have on police and pot users.
Alaska law enforcement officials, such as state Public Safety Commissioner Bill Tandeske and Fairbanks Police Director Paul Harris, have said that even before the court ruling they did not go out of their way to bust people at home for small amounts of personal use marijuana. Often, when found, it would just be destroyed, according to Susan Parkes, head of the state's criminal law division.
The Anchorage Police Department will say only that its policy is to go after marijuana if officers become aware of it. Even after last month's court ruling, Anchorage police said they would look for ways to make a state case out of possession.
Anchorage Police Chief Walt Monegan and his deputy chiefs were out of the office late Wednesday afternoon when Renkes' memo came out. Department spokesman Ron McGee said that, to his knowledge, no one at the department had seen it yet and he could not comment.
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