Pot Case Heads for an Appeal

Pot Case Heads for an Appeal
Posted by CN Staff on July 20, 2003 at 14:29:17 PT
By Dan Rice, Staff Writer
Source: News-Miner 
The fate of an argument that the Alaska Constitution gives adults the right to possess small amounts of marijuana in their homes could be decided by a local case being considered by the Alaska Court of Appeals.A lawyer for a North Pole man convicted in 2001 of possessing marijuana in his home has appealed the conviction based on a claim that a nearly three-decade-old Alaska Supreme Court decision declaring personal pot possession a state constitutional right is still the law. 
The Court of Appeals' decision will represent the first time a precedent-setting court decides whether a 1975 Supreme Court ruling still protects marijuana possession for personal use in the home despite a 1990 voter initiative that criminalized possession of any amount of the drug in any location, said Bill Satterberg, the defense attorney who submitted the appeal. Satterberg's argument, which the appeals court is expected to rule on any time, is based on the assertion that voters did not have authority to cancel a state constitutional right when they passed the initiative, making the Supreme Court's decision still valid. The Supreme Court ruled in the controversial case of Ravin v. State that marijuana possession for personal use by an adult in their home was a fundamental constitutional right to privacy. Since the 1990 voter initiative that criminalized personal possession of marijuana, several Alaska lawyers and defendants have cited the Ravin case in an effort to have marijuana charges dismissed. While the argument has worked in at least two instances--once in a 1993 Ketchikan case and most recently in a June decision by a Fairbanks judge--a court with the authority to set precedent has never addressed the apparent conflict between the Ravin decision and the marijuana laws enacted following the criminalization initiative, Satterberg said. Noy case The case before the Alaska Court of Appeals, he said, could produce the decision that clarifies the issue. The case started when North Pole police and drug agents arrested David Noy, 41, at his Parkway Road house in North Pole on July 27, 2001. Although testimony recorded on trial transcripts reveals somewhat differing accounts of the arrest, several witnesses said that law enforcement responded to the house after North Pole Police Sgt. Mark Jurgens was on patrol and reported smelling marijuana coming from the residence, where Noy and a group of people were outside barbecuing salmon. After a long encounter about whether Noy would let officers into his house, North Pole police and drug agents who responded searched the residence and found five live pot plants, growing equipment, some loose marijuana and paraphernalia, according to testimony and court documents. A jury convicted Noy of one count of sixth-degree misconduct involving a controlled substance, a misdemeanor charge of possessing less than eight ounces of marijuana. Eight ounces or pot or less is defined in Alaska law as an amount for personal use, while anything more than eight ounces is defined as an intent to deliver.Although Noy's sentence amounted to a proverbial slap on the wrist--community service, a small surcharge and a suspended jail term--Satterberg appealed the conviction. He filed his last briefing with the Court of Appeals late last year and said he expects a decision soon because the three judges who make up the court usually take about six months to render a decision.Case trilogy Satterberg called the Noy case the "second in a trilogy" of marijuana cases he has argued relying primarily on the Ravin issue. The latest case involved Scott A. Thomas, 42, a Fairbanks man who was convicted by a jury of a sixth-degree misconduct involving a controlled substance charge after officers allegedly found marijuana plants growing in his home. After the trial, Fairbanks Superior Court Judge Richard Savell approved Satterberg's motion for dismissal in June, writing under his signature of approval that Ravin governs. While Savell's decision attracted significant local media attention, Satterberg said it did little to address the question of whether a portion of Alaska's marijuana laws are unconstitutional, considering prosecutors are unlikely to appeal the ruling and send it to a higher court with the possibility of setting precedent. He said that prosecutors' reluctance to appeal lower judges' decisions upholding Ravin is one reason the issue has yet to be finalized. Also, many defendants will often accept the relatively light sentence that comes with a misdemeanor pot conviction and not pursue the matter any further, he said. Satterberg said he was actually pleased when Fairbanks District Court Judge Jane Kauvar rejected his motion for dismissal in the Noy case, providing him with an opportunity to bring the Ravin issue before the Court of Appeals. "If Judge Kauvar would have dismissed, that would have been the end of it," Satterberg said. "You'll never see these (dismissals) get appealed" by state prosecutors. Satterberg has added a notification of Judge Savell's recent decision in the Thomas case to the pending appeal in the Noy case. "Basically, we just called their attention to the fact that they have this problem to deal with," he said."Noy is actually the big one, the Thomas case basically just reiterated the points of the Noy case." Past ruling Satterberg said a 1999 Court of Appeals decision made in one of his marijuana cases offered him encouragement for what the court's ruling might be in the Noy case. In the 1999 ruling made in Walker v. State, the appeals court decided that Satterberg's Ravin argument was not pertinent, considering the defendant was convicted of possessing more than eight ounces of marijuana, which is more than what's considered a personal use amount. However, Satterberg said the judges hinted in the opinion that they would enforce the Ravin decision. "A 1990 initiative enacted current (law) which criminalizes possession of less than one half pound of marijuana. The constitutionality of this statute is questionable because it appears to conflict with Ravin, a decision of the Alaska Supreme Court which we are bound to follow," reads a portion of the Walker decision. Besides the Ravin issue, Satterberg also included in the Noy appeal a claim that the defendant had a right to use marijuana as a medical remedy for back pain even though he did not have a prescription. Satterberg said that even though Alaskans have a right to use medical marijuana when prescribed, most people who might use the drug for medical reasons will never be able to obtain a prescription because doctors are afraid they will lose their license if they prescribe the drug.In the Noy appeal, Satterberg is arguing that the defendant had a medical necessity to use marijuana.Although Satterberg said he hopes for a favorable ruling from the Court of Appeals, he will petition the Alaska Supreme Court to hear the case if the appeals court rejects his argument.Source: Fairbanks Daily News-Miner (AK)Author: Dan Rice, Staff WriterPublished: Sunday, July 20, 2003Copyright: 2003 Fairbanks Publishing Company, Inc.Contact: letters newsminer.comWebsite: Related Articles:Constitutional Argument Not a New One Judge Dismisses Pot Conviction
Home Comment Email Register Recent Comments Help

Comment #2 posted by paulpeterson on July 21, 2003 at 09:35:27 PT
I'll tell you what this means and where it goes:"They" (the undefined group so likely to be invoked in a conspiratorial tone of voice-actually used in context here ie: "they" being the "thems" that prosecute innocent people for innocent crimes of possession of god's own given herb) tend to keep a tight reign on information and truth."They" will rather dismiss charges in silent rather than to see society evolve."They" will immediately assess the fear level of their victims-If a victim is prone to fight back or speak up about injustice, the victim is treated more fairly and sent out silently back into the world."They" will lie in private & in public if they know they are safe."They" will dehumanize the victim so they can then disparage and cage the animal.And when the light of day falls on their carnage, "they" will run away.Too many rays of sunlight are falling on the "theys" for them to remain in the shadows ever again.FoM, you are such a ray of sunshine. Keep the spotlight primed and pumped. Ruffians, have at thee (the more the merrier). PAUL
[ Post Comment ]

Comment #1 posted by FoM on July 20, 2003 at 14:43:47 PT
I Wonder Where This Will Go
And what it will mean.
[ Post Comment ]

Post Comment