STATE MAY TAKE POT CASES TO FEDS

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 Merkin, 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," Merkin said.

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.