Police to continue pot investigations

State attorney general's instructions: Make no arrests, but confiscate

Posted: Wednesday, September 17, 2003

JUNEAU - Make no arrests, but confiscate the marijuana.

Those are the instructions from Attorney General Gregg Renkes to law enforcement officials after a state appellate court ruling that makes it legal for people to possess up to four ounces of pot in their homes.

Law enforcement should continue to investigate these cases in a manner that would allow for federal prosecution, Renkes wrote in a memo to Public Safety Commissioner Bill Tandeske.

"This includes seizing and treating as evidence all marijuana found, even if under four ounces in the home, and writing reports documenting the investigation," Renkes wrote.

The Alaska Court of Appeals ruled Aug. 29 in the case of David Noy, a North Pole man arrested for having marijuana in his home.

In its decision, which was based on broad right to privacy provisions in the Alaska Constitution, the court struck down a 1990 voter initiative that criminalized possession of any amount of the drug.

Renkes filed court papers Sept. 8 asking the appellate court to rehear arguments in the case.

Meanwhile, he told law enforcement officers to carry on with their normal duties while respecting the Noy ruling.

"We have always confiscated and destroyed, or preserved as evidence, marijuana when found," Renkes said. "Because it's illegal."

Possession of any amount of marijuana is a federal crime, and the U.S. attorney's office has agreed to review cases referred by state prosecutors, Renkes said.

It's unclear what practical effect that will have.

U.S. Attorney Tim Burgess in Anchorage said federal prosecutors will continue to review marijuana cases on a "case by case basis."

"I think it's important for people not to assume they won't be prosecuted under federal law just because of the Noy decision," Burgess said.

But he would not say whether federal prosecutors will dedicate more resources to take on cases involving small quantities of marijuana found in the home.

Bill Satterberg, the attorney that represented Noy, doesn't think they will. He called the attorney general's action "saber rattling," but added increased federal involvement could invite another legal challenge.

"If state or municipal law enforcement is now going to start acting as agents for the federal government in violation of the Alaska Constitution, we get into some very interesting civil rights issues," Satterberg said.

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