Marijuana conviction stands on appeal

MAT-SU — A state appeals court ruling issued Wednesday found that officers didn’t violate a defendant’s rights when, in 2002, they searched a shed on his property for marijuana.

But that doesn’t mean the judges weren’t conflicted.

“We note that there is conflicting authority regarding how close an outbuilding must be to fall within the curtilage of a nearby residence,” Judge Joel Bolger wrote in the decision.

Shane Neuharth has long ago served his time in the case. The eventual sentence amounted to a year in prison.

Wildlife troopers were first summoned to Neuharth’s cabin — the exact location of which is unclear in either the recent decision or one issued in 2007, though he lived and worked at the same place in Wasilla at the time — because a neighbor was worried Neuharth might have been illegally excavating in a fish stream.

The troopers followed heavy equipment tracks from the stream back to Neuharth’s property where, near a flat-roofed shed, they smelled marijuana.

Troopers and police officers eventually searched the shed and Neuharth’s home and business, coming up with marijuana plants and bags of the drug.

The question at trial was whether the troopers violated Neuharth’s privacy in coming onto his land. And the issue at hand is something called the “open field” rule: If the shed was out in the open where troopers could stumble across it or if it was inside the “curtilage” of the cabin and thus in a place where troopers should have assumed it was not OK for them to go.

When Neuharth first appealed, the appeals court sent the case back to the superior court to gather more evidence as to whether the shed was in fact a visibly private structure.

Four factors were at play — how close were the two structures, was the shed behind an enclosure, was the shed being used as part of the normal activities of the cabin and what steps did Neuharth take to keep it private.

As to the distance — Bolger wrote that 60 feet was far enough away from the cabin to consider it not a part of the home. On the second factor, he found the shed was not behind a fence or screen of trees. On the third factor: the shed was being used strictly to grow marijuana, Bolger wrote. It was not part of the household activities.

The fourth factor was somewhat trickier. There was a “No Trespassing” sign posted on the shed. But the superior court found, and Bolger agreed, that such a sign didn’t constitute a significant step toward shielding the shed from view. Based on those findings, the appeals court upheld Neuharth’s conviction. But again, he noted the vagueness of the laws.

“We are nevertheless concerned about the scope of the open fields doctrine. The limits on investigative authority are not obvious,” Bolger wrote.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.