COPS AT ODDS ON POT RULING

BUSTS: Anchorage police to enforce ban on marijuana in home, but troopers
will not.

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.