It's getting tougher and tougher for cops in Alaska to bust people for pot. Since the state Court of Appeals last year reaffirmed a 1975 Supreme Court ruling legalizing the possession of marijuana for personal use in one's own home, striking down a 1990 referendum that overturned the earlier decision, police have been unable to arrest people for possession of less than four ounces in their homes. Now, an August 27 Court of Appeals ruling has law enforcement once again wailing and gnashing teeth. In that ruling, the Court of Appeals held that police cannot seek or execute a search warrant for a person's home for marijuana unless there is reason to believe there are more than four ounces of it.
The ruling came in the case of Leo Richardson Crocker Jr., who was charged with "controlled substance misconduct" after police searched his home and found marijuana and grow equipment. A lower court ruled the search warrant should never have been issued because there was no evidence Crocker possessed more than four ounces of marijuana, and the Court of Appeals last week upheld that ruling.
Alaska Attorney General Gregg Renkes told the Fairbanks Daily News-Miner that the state will appeal the ruling to the Supreme Court. Renkes is "fearful that this will shut down effective investigation of marijuana growing cases," he said. The decision will hamstring police efforts to go after grow-ops, he added. "It will be rare that there will be someone who can provide eyewitness information to the amount of marijuana in a growing operation," Renkes said. "At this point the only way to get a search warrant is for someone to testify to the size of the crop."
That a search warrant cannot be issued for a legal substance -- less than four ounces of marijuana -- would seem an eminently logical conclusion. But Alaska law enforcement officials remain recalcitrant about obeying the ruling of the state's highest courts on marijuana. Although the state Supreme Court last year clearly held that possession within one's home is legal, Renkes continues to maintain, publicly as well as in arguing court cases, that they didn't really do that. Instead, Renkes claims, the Supreme Court decision merely provided people with an affirmative defense if they were arrested. Since marijuana possession is still a crime, Renkes' argument goes, search warrants can and should be issued for possession of any amount.
The Court of Appeals wasn't buying. "We addressed and rejected this same argument in our opinion on rehearing in Noy [last year's Court of Appeals ruling]: Ravin [the 1975 Supreme Court decision] did not create an affirmative defense that defendants might raise, on a case-by-case basis, when they were prosecuted for possessing marijuana in their home for personal use," the Court of Appeals opinion said. "The Alaska Supreme Court has repeatedly and consistently characterized the Ravin decision as announcing a constitutional limitation on the government's authority to enact legislation prohibiting the possession of marijuana in the privacy of ones home. Accordingly, we reject the State's suggestion that Ravin left Alaska's marijuana statutes intact..."
So, at least for now, the people of Alaska are secure in their homes and possessions from search warrants based on the possession of legal amounts of marijuana. Too bad it takes appeals court rulings to instruct the attorney general to follow the law. And from the looks of it, at least one more Supreme Court ruling before he and his minions get completely over it.
The Court of Appeals decision in State v. Crocker is available at http://touchngo.com/ap/html/ap-1949.htm online.