General Interest > Feed Your Head

Alaskan Court Rules Possession of up to 1/4 lb. of Marijuana


Paul St. John:
Marijuana ruling smokes foes
By DAN RICE, Staff Writer
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 said. 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." Reporter Dan Rice can be reached at [email protected] or 459-7503.

I wonder who Smell, Batty, Calvina &Co. are going to blame. Can't you just hear them whining from here?
Boundary, n.  In political geography, an imaginary line between two nations, separating the imaginary rights of one from the imaginary rights of another.
-- Ambrose Bierce,  The Devil's Dictionary

--- End quote ---


[0] Message Index

Go to full version