STATE WON'T ARREST FOR PERSONAL POT

Attorney General Gregg Renkes instructed state law enforcement Tuesday not
to arrest or cite adults for personal marijuana possession in their home.
Renkes' announcement came in light of a recent Alaska Court of Appeals
decision that called a portion of the state's marijuana laws unconstitutional.

"I am advising the Alaska State Troopers and directing that the district
attorneys advise their local law enforcement not to arrest or cite any
adult for a violation of state law under the circumstances protected by the
Court of Appeals," Renkes wrote in a memo to the Department of Public
Safety and the state's district attorneys.

However, Renkes wrote that state law enforcement should still investigate
personal marijuana possession in "a manner that would allow for
prosecution" by seizing the drug, writing a report and referring the case
to state prosecutors.

That procedure should be followed, Renkes wrote, because the Attorney
General's Office is asking the Court of Appeals to reconsider the decision
it rendered on Aug. 29 in the case of Noy v. State and because federal
prosecutors could accept a personal-possession marijuana case.

Possession of any amount of marijuana is a crime under federal law and
state agents could bring a case to the U.S. Attorney's Office for
prosecution, said Alaska U.S. Attorney Tim Burgess.

"Individuals shouldn't feel that they don't risk federal prosecution
following the Noy decision," Burgess said.

Renkes' memo instructed state district attorneys to work with a
representative in the Attorney General's Office in forwarding
personal-possession marijuana cases to federal prosecutors.

However, Burgess said federal prosecutors won't accept every
personal-possession marijuana case, noting that the U.S. Attorney's Office
handles much more than misdemeanor drug cases, including prosecuting major
crimes and defending the government against civil lawsuits.

Burgess said there's a threshold for an amount of marijuana possession that
federal prosecutors use in determining whether to take a case. He would not
reveal what the threshold is, explaining that he does not want the public
to know the amount.

The issue of state prosecutors forwarding the case to the federal level
could become moot if the Attorney General's Office is successful in
convincing the Court of Appeals to change the decision it made in the Noy case.

In the decision, the appeals court threw out a conviction of David Noy, who
was arrested for possessing marijuana in his North Pole home in 2001.

The court accepted an argument from Noy's lawyer that the state
constitution allowed him to possess marijuana in his home as determined by
a 1975 state Supreme Court decision rendered in Ravin v. State. The Supreme
Court decision held that adults could possess marijuana in their homes for
personal use because the state's interest in preventing them from doing so
was not great enough to warrant a violation of a citizen's right to privacy.

However, the law changed in 1990 when a voter intiative that passed by a
55-45 percent tally criminalized all amounts of marijuana possession. The
Court of Appeals ruled in the Noy case that voters did not have the
authority to change the constitution and that personal marijuana use is
legal in the home.

The court ruled that less than 4 ounces of marijuana was an amount
allowable for personal use.

However, Renkes contends that the appeals court never should have
considered the personal-use argument because Noy actually possessed 11
ounces of marijuana. He was convicted of possessing the lesser amount
because the jury was incorrectly instructed on how to measure the total
weight of marijuana, Renkes said.

"The appeals court has gone beyond the scope of the Noy case to provide its
opinion about marijuana use," Renkes said in a news release.

Renkes also said in the release that the state Supreme Court's decision in
the Ravin case left the state with the option to prove that it has a
legitimate interest in preventing personal marijuana use in the home. By
declaring personal use legal under state law, the Court of Appeals has
denied the state an opportunity to argue that the state constitution should
not protect personal marijuana possession, he said.

"The appellate decision short-circuits the judicial process by denying the
state the opportunity to present its case regarding the proper governmental
interest in imposing restrictions on marijuana use," said Renkes, who went
on to argue that marijuana has become increasingly more potent in recent
decades and that more state residents are growing the drug.

From a practical standpoint, whatever happens in court makes little
difference in how local police deal with marijuana cases, said Fairbanks
Director of Police Paul Harris.

He said that officers rarely encounter a case involving only an adult
possessing marijuana in their home. Typically, a marijuana charge will be
tacked on to another crime or pot will turn up while police are
investigating another matter, he said.

Harris said that if Fairbanks police find marijuana in an adult's home,
regardless of the amount, they will seize it because it is a controlled
substance.

"You're not going to get your 4 ounces back," he said.

He added that police would also respond to calls about marijuana use in a
residence because the department considers them to be a nuisance complaint.

Harris added that since the Noy decision the department has yet to deal
with a case that fits into the mold of personal marijuana use in the home.

"I've been asking the guys and we don't think we have," he said. "Most of
the questions that come up involve small amounts in cars or small amounts
in public places, and the answer in most cases is pretty simple--issue a
citation."

The police director also offered some simple advice for marijuana users who
want to avoid a run-in with the law.

"The trick is if you're inviting the police over, don't leave it out," he
said. "Put it up."