In November of 2008, voters in Massachusetts overwhelmingly voted to decriminalize possession of less than an ounce (28 grams) of marijuana by passing Question 2,” An Act Establishing a Sensible Marijuana Policy.” In November of 2016, Massachusetts voters overwhelmingly voted to pass Question 4, “The Regulation and Taxation of Marijuana Act” which legalized the possession of recreational marijuana for adults 21 years and older with some limitations. The new law took effect on December 15, 2016. I recommend that you review my summary of the limitations of the Act so that you do not unwittingly violate the law.
The current law permits the possession of an ounce or less of marijuana on your person. The acts of “selling, manufacturing or trafficking in marijuana” and operating a motor vehicle while under the influence of marijuana remain crimes.
Even after the law was changed, the police continued to arrest and prosecutors continued to charge people caught with under an ounce of marijuana by conveniently charging them with possession with intent to distribute. The Supreme Judicial Court has shown that it is wary of this tactic but was unwilling to support outright dismissal of people charged with intent to distribute marijuana when found with an ounce or less. The SJC has written that “where judicial officers evaluate probable cause in such cases, they must be mindful of the risk that police officers or prosecutors might allege an intent to distribute based on the mere suspicion of such an intent for the purpose of charging the offender as a criminal or delinquent rather than as a civil violator.”
In Commonwealth v. Humberto H., the SJC affirmed a Juvenile Court judge’s dismissal of the delinquency complaint charging the juvenile with possession with intent to distribute marijuana on the ground that the complaint was not supported by probable cause. The application for the complaint included the following information: the dean of the juvenile’s high school noticed the smell of marijuana coming from him and upon being questioned by the dean, the juvenile became “very defensive and agitated.” The juvenile was searched and five plastic bags of marijuana were found in the pocket of his shorts. The SJC noted that there was no information in the complaint application regarding the weight of the marijuana and that the application defined the value of the substance as “‘$0.00.’” The Court concluded that the above information failed to support a finding of probable cause as to intent to distribute.
The SJC followed the same reasoning more recently in Commonwealth v. Ilya I. when it affirmed a judge’s dismissal of the delinquency complaint charging the juvenile with possession with intent to distribute marijuana. According to the application, police officers observing the activities of a group of four teenagers (including the juvenile) on foot and in a vehicle in a high crime area formed the belief that “‘a drug transaction may have occurred.’” Those activities included a “‘brief interaction’” of uncertain nature with a man and a woman who had approached the teenagers. The officers approached the teenagers’ car and when one of the passengers opened a door, the odor of unburnt marijuana was detectable. When the officers ascertained that the driver lacked a valid license, the occupants were ordered out of the car. As the juvenile got out, an officer noticed that he twice looked down at his groin area which, along with the smell of unburnt marijuana, prompted a patfrisk and the subsequent discovery of thirteen individually wrapped bags of marijuana of an unknown quantity inside a clear plastic sandwich bag.” The Court considered the quantity and packaging of the marijuana, the juvenile’s mere association with allegedly suspicious people, the juvenile’s nervous demeanor, the smell of fresh marijuana, the driving pattern of the car. The Court found that none of the other observations made by the officers supported a finding of probable cause to believe that the juvenile intended to distribute the substance.
Another issue remained after the passage of Question 2 was whether officers could justify an exit order and search of a car based on the smell of marijuana. The SJC answered that in Commonwealth v. Cruz and explained that “without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.”
Curiously the government continued to try to justify car searches after Cruz when the smell was for “unburnt marijuana” instead of burnt marijuana. I convinced a judge in the Lowell District Court to suppress evidence seized following a car search based on an officer’s claim that he had been overwhelmed by the smell of unburnt marijuana as soon as my client rolled down his car window. This officer’s preposterous claim could have laughable since my client had a quarter of an ounce of marijuana in a sealed ziplock back inside a closed center console, but my client was arrested for (you guessed it) possession with intent to distribute marijuana and had his car towed. Shortly after the judge allowed my motion to suppress that the smell of unburnt marijuana was no more a basis to search a car than the smell of burnt marijuana, the Supreme Judicial Court weighed in on the issue. The SJC held in Commonwealth v. Overmyer that the smell of unburnt marijuana coming from a car does not provide the police with probable cause to believe that the car contains a criminal amount (more than one ounce) of that substance, which would be needed to justify a search of the vehicle under the automobile exception to the warrant requirement.
In Commonwealth v. Sheridan, the SJC reiterated that evidence of an ounce or less of marijuana cannot be the basis to search a car. The SJC reversed the denial of the defendant’s motion to suppress based on the officer looking through the car window and seeing the corner of a bag containing roughly an ounce of marijuana peeking out from under a rumpled t-shirt on the car’s floor. The officer entered the car and lifted the t-shirt and found two more bags with a similar amount of marijuana in each one. The officer searched the car based on seeing a single bag of approximately one ounce of marijuana, which is not evidence of a crime. It was only after he commenced his illegal search that he found the additional marijuana.
If you have been charged with a crime involving marijuana, you need a marijuana lawyer in the Greater Boston area and north of Boston, please, contact me today for a free consultation. I have offices conveniently located in Belmont, MA and Lowell, MA.