Marijuana Law, Policy & Reform

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Moritz College of Law

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Thursday, July 10, 2014

Massachusetts SJC holds marijuana smell insufficient to justify car search

As reported in this Boston Globe article, the Massachusetts "Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person’s car." Here is more:

In two unanimous rulings, the state’s highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.

The court said in its 2011 ruling that it would be legally inconsistent to allow police to make warrantless searches after they smell burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere."

The court said Wednesday it was now extending the same reasoning to cases where the owner has not yet started smoking it. Marijuana, the court acknowledged, generates a pungent aroma, but an odor by itself does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime.

“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.

“We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile."...

The court also rejected the argument from law enforcement that local police can use the odor of marijuana to stop someone because possession of marijuana is still an offense under federal law. “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote.

The full rulings from the Massachusetts Supreme Judicial Court are available here and here.

http://lawprofessors.typepad.com/marijuana_law/2014/07/massachusetts-sjc-holds-marijuana-smell-insufficient-to-justify-car-search.html

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Comments

I would expect to see this sort of ruling expand to all states that begin to legalize amounts of marijuana, as the legal basis for marijuana = probable cause is the absolute illegality of it. However, if probable cause cannot be satisfied by mere smell of marijuana, day-to-day police practices (traffic stops) will change dramatically. Anyone want to predict how cops will justify searching cars that they suspect marijuana in if they can't rely on the vague "odor of marijuana" justification?

Posted by: Blaise K | Jul 23, 2014 1:01:45 PM

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