ALASKA COURT RULES MARIJUANA POSSESSION OKAY

Judicial Day of Reckoning Coming

An Alaska Superior Court judge in Fairbanks has dismissed a man's
conviction for marijuana possession on the grounds that the Alaska
state constitution's privacy provisions guarantee the right to possess
marijuana for personal use. Judge Richard Savell dismissed the
conviction against Scott A. Thomas on June 25. He had been charged
with three counts of felony fourth-degree misconduct for growing pot
plants in his home last summer, but a jury found him guilty of only
one count of misdemeanor marijuana possession, and now that has been
thrown out.

In a 1975 Alaska Supreme Court decision, Ravin v. State, the state's
highest court ruled that it was legal for adults to possess marijuana
in their own homes as long as the quantity was not sufficient to
constitute "an intent to deliver." Marijuana possession by an adult at
home was protected by the fundamental right to privacy enshrined in
the state constitution, the justices ruled. But in 1990, marijuana
opponents cheered on by then drug czar Bill Bennett won a voter
initiative making possession of any amount of marijuana in any
location illegal.

"A direct conflict in the law exists between the right to privacy
guaranteed under the Alaska Constitution and the statutory
prohibition... which criminalizes the personal use of marijuana by an
adult in the privacy of the home, regardless of the quantity of the
prohibited substance," read Thomas' motion to dismiss his conviction.
Judge Savell agreed. But the ruling does not set precedent yet, said
Fairbanks attorney William Satterberg, who has argued at least three
marijuana cases, including the Thomas case, in hopes of overturning
the law. "There is another case, Alaska v. David Noy, before the
state appeals court," he told DRCNet. "Noy was convicted of
misdemeanor possession of less than eight ounces, and although he was
given a suspended imposition of sentence, they still gave us the
chance to appeal. We appealed on a pro bono basis and gave our final
brief to the court last year."

While the state is unlikely to appeal the Thomas decision, the ruling
brings added pressure for the courts to resolve the issue. "We had one
court rule against us in Noy and another rule for us in Thomas," he
said. "This court will have to resolve this, and they will use the
Noy case to do it."

There are two issues at play, Satterberg continued. "One issue is the
right to privacy as recognized in Ravin v. State; the other issue is
the medical necessity defense. Noy had arthritis and stress, and
while Alaska law allows for medical marijuana, you effectively have to
get it illegally because doctors are afraid the DEA will check their
certificates to prescribe. Our thinking is that the court can deal
with Ravin or it can deal with medical necessity, and we think they'll
deal with Ravin."

An appeals court ruling in yet another earlier case leaves Satterberg
optimistic about the final outcome, he told DRCNet. In that case,
because the quantity of marijuana involved was more than the eight
ounces that is considered the line for personal possession, the
Supreme Court didn't directly address the Ravin ruling. "But in a
footnote to their decision, they said that if it had been a personal
possession case, they would have relied on the Ravin decision."

Even though the state Court of Appeals, not the Supreme Court, is
deciding the Noy case, whatever the verdict is in Noy, it could become
the law of the northland because the Supreme Court is not required to
hear appeals from Court of Appeals decisions. "We will petition the
Supreme Court if we lose," said Satterberg. In the meantime, he's
waiting for that decision to come down. "We could get a call on Noy
any day now," he said.

"The fact of the matter is we are dealing with personal rights and
personal privacy," Satterberg noted. "Right now, the cops can claim
they smell marijuana and get a search warrant and tear your place
apart because you were smoking a joint. Who is secure in his home
when this is the case?"