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, 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 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 1975, 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 Alaska 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 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 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