IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT KETCHIKAN
STATE OF ALASKA,
Plaintiff,
v.
PATRICK A. MC NEIL,
Defendant.
No. 1KE-93-947 CR
MEMORANDUM OF DECISION
On September 4, 1992, Officer Peratrovich of the Klawock
Police Department sighted what he believed to be a small amount of
marijuana within defendant's residence. He saw this through a glass
door at a distance of six feet or so. He applied for a search
warrant to return and seize this material "alleging a violation of
possession." (Tr. p. 2). He estimated the amount to be
approximately "a gram" and stated it was accompanied by rolling
papers and a pipe. (Tr. p. 4). Service of the warrant resulted in
the seizure of this material (.21 gram) which later proved to be,
in fact, marijuana.1
More than seven months later - on April 27, 1993 - defendant
was charged by complaint with a violation of AS 11.71.060(a)(1),
Misconduct Involving a Controlled Substance in the Sixth Degree,
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1 Also located and seized during the search was a selection of
paraphernalia and a small amount of cocaine.
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alleging the possession of marijuana. He was subsequently indicted
July 9, 1993 for the same offense, stated as Count II of that
document.
Defendant has moved to suppress evidence taken under the
warrant on the grounds that there was insufficient probably cause
for the issue of the warrant; the search exceeded the scope of the
warrant; and, finally, that AS 11.71.060(a)(1) violates article I,
Section 22 of the State Constitution (the right to privacy) inasmuch
as it criminalizes the personal possession of marijuana by adults
for use in one's home. Ravin v. State, 537 P.2d 494 (Alaska 1975).2
The attack on probable cause falls short. The observation
of this material at six feet, in conjunction with "rolling papers"
and a pipe - both indicative of smoking activity - consitutes a
basis for reasonable belief that the officer has seen marijuana.
No special training would be required for most third graders to draw
this inference from the officer's testimony before the magistrate.
Likewise, defendant gets no relief from his argument that
the officers' search warrant exceeded that authorized. The magistrate
annotated the warrant itself "Visible Rm (room) from sliding glass
door only". A common sense reading allows a search of that room -
not only some portions of it. All the evidence seized came from
that room although the officers did a "sweep" of the rest of the
____________________
2 Should Ravin continue to be good law the search warrant
itself would be invalid as it was issued solely to aid the
investigation of an act not constituting a violation of law.
2
home to ascertain the presence or lack of occupants - a prudent and
allowable intrusion beyond the scope of the warrant.
This leaves the thornier issue - the criminality of
possession by adults of marijuana in the home for personal use.
Defendant is an adult (d.o.b. March 14, 1960), the residence was his
home (Tr. p. 8), and the amount and circumstances certainly suggest
only personal use.
In 1978, the Supreme Court unanimously held that Article I,
Section 22 of the Alaska Constitution - the right to privacy -
protected the possession of marijuana by adults at home for personal
use. Ravin v. State, 537 P.2d 494, 511 (Alaska 1975). While not
finding a constitutional right to possess or use marijuana, the
Court found that "no adequate justification for the state's
intrusion into the citizen's right to privacy" existed or had been
shown.
The legislature attempted to accommodate this decision in
Title 17 and later AS 11.71.060 and .070 by limiting criminal
penalties for private, in-home possession by adults to amounts of
four ounces or more. In 1990 an initiative passed which is
reflected in current AS 11.71.060(a)(1) - criminalizing possession
of any amount of marijuana anywhere, by anyone. The legislature has
since taken no action on this issue.
The initiative is authorized in Article XI, Section 1 of the
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Alasks Constitution.3
The people may propose and enact
laws by the initiative, and approve
or reject acts of the legislature by
the referendum.
"The right of initiative and referendum, sometimes referred
to as direct legislation, should be liberally construed to permit
exercise of that right." Thomas v. Bailey, 595 P.2d 1, 3 (Alaska
1979). Liberal construction seems to mean that defects in form
should be treated leniently. However, courst will routinely strike
these enactments for trespass into prohibited substantive areas.
See Citizens Coalition v. McAlpine, 610 P.2d 162, 168 (Alaska 1991).
As the court stated in McAlpine, "We must never lose sight
of another important right of the people implicated in all cases of
constitutional construction, namely the right to have the
constitution upheld as the people ratified it. See, Thomas, 595
P.2d at 3-4. We must interpret all constitutional provisions -
grants of power and restrictions on power alike - as broadly as the
people intended them to be interpreted." p. 168.
In State v. Lewis, 559 P.2d 630 (Alaska 1977), the Court
held that the Alaska Constitution can only be amended in two ways.
Article XIII, Sections 1 and 4 set these forth - either a two thirds
affirmative vote of both legislative houses followed by approval by
a majority of voters or a constitutional convention. In Lewis this
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3 There are some limitations on the power in Article XI,
Section 7 but they do not concern this issue.
4
resulted in the invalidation of a proposition adopted by popular
vote - a proposition that conflicted with the constitution as
interpreted by the Court. In other words, the voters cannot change
the constitution simply by carrying the polls on a given day. The
initiative is designed as a means for the people to enact
legislation. "Nevertheless the subject of the initiative must
constitute such legislation as the legislative body to which it is
directed has the power to enact." Municipality of Anchorage v.Frohme, 568 P.2d 3, 8 (Alaska 1977); Farnell v. Hesley, 431 P.2d 650
(Cal. 1967) "The power to legislate by initiative and referendum is,
however, subject to the same substantive constitutional limitations
as those applicable to the legislature itself." Sutherland
Statutory Construction 4th Ed., Section 4.09; Op. of the Attorney
General 1959 #36, p. 2.
Ravin was founded in the Supreme Court's interpretation of
the Alaska Constitution. The legislature - nor for that matter the
people through the initiative - cannot "fix" what it disliked in an
interpretation of that document by legislation. The only way to
"fix" the Constitution is by the amendment process or a new
convention. The initiative was inadequate to overrule Ravin and
that case remains the law.
There is another avenue for the State to follow. Should the
State make a clearly convincing showing that the ruling in Ravin was
in error or no longer sound due to changed conditions and that more
good than harm would result from a departure from precedent the
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Supreme Court would reverse itself. State v. Dunlop, 721 P.2d 604,
610 (Alaska 1986). Ravin was decided during a period of serious
debate about the harmful effects of marijuana use. Science marches
on. Perhaps there is now in existence sufficient evidence in the
scientific community to persuade that Court that the State does have
an adequate justification to intrude on individual privacy in the
manner sought by AS 11.71.060(a)(1). If this evidence exists it
does not appear in this record - the State presented no evidence,
or even argument on this point. Accordingly, with no basis to
overrule or even qualify the Ravin decision, it must be applied.
The evidence seized pursuant to the search warrant is suppressed and
Count II of the Indictment is dismissed.4
Dated at Ketchikan, Alaska, this 29th day of October, 1993.
Michael A. Thompson
Superior Court Judge
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4 This might well have been a case in which the "good faith"
exception to the warrant requirement would have saved Count I of
the Indictment, should that principle ever be adopted in Alaska.
Everyone - the officer and the magistrate - seems to have followed
the "rules" as they appeared to them to be.
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