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.
After Ravin, personal possession of marijuana remained decriminalized in Alaska until 1990, when William Bennett, the drug czar in the administration of former President George H.W. Bush, came to Alaska to focus efforts on getting states to pass stricter drug laws. A voter referendum passed that year making possession of small amounts of marijuana a crime again.
But Robert Wagstaff, an Anchorage attorney who argued Ravin, said he always believed the law would be overturned. He said more than a referendum would be needed to put people in jail in Alaska for possessing marijuana in their homes.
"The Noy decision held that a voter referendum cannot overturn a Supreme Court decision when it is based on the constitution," Wagstaff said. "An analogy would be if Congress wanted to vote to segregate all the schools in the United States, even though the court ruled that is unconstitutional. It would take a Constitutional amendment."
A Lot of Confusion
The state has asked the Court of Appeals to rehear the Noy case, and if refused, would appeal to the state Supreme Court, said Theresa Woelk, the spokeswoman for the state Department of Law.
But in the meantime, the ruling has created uncertainty for the state's law enforcement community over whether it is business as usual with regard to marijuana, or if private possession of four ounces or less of pot for personal use is really no longer a crime in the state.
Renkes has directed state troopers and local law enforcement to cease arresting or citing anyone for such violations until the case is resolved. But, he added, police should continue to seize marijuana and treat it as evidence for potential prosecution, forwarding cases to the U.S. attorney's office for possible prosecution under federal laws.
Some local police, including the Anchorage city police, have said they will continue to pursue all pot cases as they would have before the decision.
"Certain police agencies aren't recognizing it and that's causing some concern," Satterburg said. "I think it's wrong for police to be saying it's business as usual. The law you're enforcing is now illegal and who are you to say you're going to enforce it?"
Some advocates of decriminalization of marijuana went even further, suggesting if state or local police confiscate pot from people's homes, they could be the criminals themselves.
"They're talking about taking people's property that the state court has said they have the right to possess. That sounds to me like theft," said Bruce Mirken, a spokesman for the Marijuana Policy Project, a group that supports decriminalization.
Anchorage Police Department spokesman Ron McGee said the department is just carrying out the attorney general's directive. But he also said most of the arrests Anchorage police make for personal possession of pot come as a result of other investigations.
"Marijuana is not a priority at our department," McGee said. "It's not something we put a great effort into. We have real crime in this city and marijuana is just not a real high priority for us."