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?"