David Noy doesn't deny he had a few ounces of marijuana in his house. He doesn't even deny he had some plants growing in his basement. He just doesn't think he should go to jail over it. And the second-highest court in Alaska has agreed with him.
The state Court of Appeals cited the right to privacy as the reason for its decision, and the ruling has thrown drug enforcement officials into confusion.
Noy was arrested in July 2001 after police found five pot plants growing in the basement of his North Pole home. The Alaskan did not subsequently argue he should be spared punishment because he uses marijuana for medical reasons, or because he says the search was illegal.
Instead, he said a 1990 state ballot measure that criminalized marijuana — including personal possession in the home — was unconstitutional. The measure violated the right to privacy guaranteed to every Alaskan, Noy's attorney Bill Satterburg argued, and stopping adults from smoking marijuana was not a compelling enough reason for that violation.
Last month, the Court of Appeals ruled Noy was right, and that the danger to society from marijuana is not as great as the danger of government intrusion into people's homes.
Legitimate State Interest?
The court's decision is a based on a 1975 state Supreme Court ruling in Ravin vs. State that marijuana possession is protected if it is used "in a purely personal, non-commercial context in the home" and unless the state can prove there is a "legitimate state interest" to override that right.
That court based its finding on a Nixon-era federal report, which said marijuana did not present a significant social danger "at least as compared with the far more dangerous effects of alcohol, barbiturates and amphetamines."
But State Attorney General Gregg Renkes argued marijuana is stronger than it was three decades ago, and that use of the drug is spreading faster in Alaska than elsewhere, points he said the state wasn't given the chance to make in its case.
The real issue in Noy is not marijuana at all, Satterburg said, but the right to privacy. And for that reason, he believes pot smokers should not be the only ones celebrating the decision.
"Next time it might be somebody coming into your house to take your gun," he said. "There's a lot of people up here who wouldn't be too happy about that."
Will the Ruling Stand?
The bar is set high in Alaska for the protection of privacy with regard to pot possession. Unlike the implied right to privacy in the U.S. Constitution's First, Third and Fourth amendments and in the language of the constitutions of most states, Alaska's privacy right is explicitly and firmly stated.
Only Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington have similar guarantees of the right to privacy in their constitutions.
"Our territory and now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is now virtually unattainable in many of our sister states," Justice Jay Rabinowitz wrote in the majority opinion for Ravin vs. State.
Yet observers have mixed opinions on whether the Noy ruling will stand, given Alaska's long history of independence of spirit and of swings back and forth on whether marijuana possession should be a crime.