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,
____________________

       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

____________________

       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.

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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

____________________

       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

____________________

       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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