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Leonardo Angiulo: Further Refining the Investigation of Marijuana Offenses

Monday, July 28, 2014

 

Almost everyone knows at this point that possession of less than an ounce of marijuana in Massachusetts is not a crime.  Since the case of Commonwealth v. Cruz in 2011, the Supreme Judicial Court has therefore recognized that the odor of burnt marijuana alone does not justify the search of cars that have been pulled over for traffic violations.  What the Cruz case did not deal with is the odor of unburnt marijuana.  This past month, however, two cases further refined exactly what police are allowed to do when they smell that smell.

The Fourth Amendment of the U.S. Constitution and Article Twelve of the Massachusetts Declaration of Rights are the overarching legal principles that make these distinctions important.  The short version is that government agents, like police, need a warrant to conduct searches.  While there are exceptions to the warrant requirement, they are specific and limited.  When it comes to searching cars on the roadside police must first have probable cause to believe that the suspect automobile contains contraband or evidence of a crime. 

The July 9, 2014 cases of Commonwealth v. Overmeyer and Commonwealth v. Craan deal with that big question.  The Supreme Judicial Court chose to extend the same idea from Cruz, regarding burnt marijuana, to situations where police only smell unburnt marijuana. 

The facts of Overmeyer are so generic that they could easily provide a forecast for future situations.  Police responded to the scene of a two car collision in Western Massachusetts.  When they interacted with one of the drivers, they claimed to detect a very strong odor of unburnt marijuana emanating from the Volvo he was driving.  The officer was voluntarily handed, what is described in the case as, a “fat bag” from the glove compartment by the defendant.  The officer was unsatisfied and chose to further search the vehicle which resulted in the discovery of two large freezer bags of individually packaged amounts of marijuana exceeding one ounce.  This was a problem because the weight and packaging was consistent with an intent to distribute and that is still a crime.

The Supreme Judicial Court chose to rule this search unconstitutional because, based on the facts available, the only evidence the officer had at the time of the search was an odor of unburnt marijuana and a legal amount of marijuana that had been voluntarily revealed.  If probable cause of criminality is the prerequisite for searches, the court reasoned, then this officer's actions were unjustified because possession of less than an ounce of marijuana isn't a crime.  Simply smelling something cannot reliably predict the amount of substance involved and so smell alone cannot justify the search. 

Some might argue that common sense says personal use amounts of marijuana, a partially filled sandwich bag for example, will not produce a strong or very strong odor in a car.  This issue was also identified and addressed by the court in both the Overmyer and Craan decisions.  As stated in Overmyer, the problem with this common sense approach is that the relative strength of an odor is a subjective perception; a personal observation that cannot be scientifically measured or reproduced.  At the root of a finding of probable cause to justify warrantless searches in Massachusetts is the requirement of specific data from the situation that can be later tested for reliability by a judge.  Allowing searches based on a personal opinion that a smell was wicked strong, for example, fails to meet that standard.

An additional issue addressed in the Craan case is whether or not the fact that marijuana possession is still a federal crime matters in these situations.  This came up because the Commonwealth's attorney in Craan argued that if law enforcement believed that a federal crime was occurring they would be justified in searching a car.  The court, which notably limited its analysis to the search for unburnt marijuana based on that odor alone, rejected this argument because of specific state legislation addressing the subject.  To rule differently, according to the court, would be a clear deviation from the intent of the voters.

The court also went on to explain that State and local law enforcement are created by statute.  It follows, therefore, that if the laws change about what is and what is not a crime then their behavior must change as well.  This was especially true given the court's findings that decriminalizing marijuana was supposed to “free up the police for more serious criminal pursuits.”

These two cases are a fine example of democracy in action.  Consider that the 2008 act that decriminalized marijuana was a voter initiative.  This basically means the law came from a group of citizens who organized a petition and got enough signatures to put this before the legislature.  Once they got it up on the hill, they got it passed and changed the law. Supreme Judicial Court decisions regarding marijuana possession then changed the way police could search cars as justices cited the new law.  No matter their view on marijuana, almost everyone can appreciate that this is how our system is supposed to work when people want to see change.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected]      

 

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