Submitted by Mark Esposito, Guest Blogger
The Massachusetts Supreme Judicial Court has issued an interesting decision concerning the prerogative of police to order a suspect to exit a car after smelling marijuana smoke coming from within. Seems the opinion turned on the Bay State’s decision to decriminalized possession of less than one ounce of the wacky weed in 2008.
According to the opinion, at around 5 pm, the Boston police officers Morgan and Diaz spotted defendant Cruz in the passenger seat of a car parked on the side of the road in front of a fire hydrant. Cruz was smoking a small cigar with the windows rolled down. The officers approached Cruz and asked what he was doing. Officer Morgan claimed he smelled a “faint odor” of marijuana and Officer Diaz noted that Cruz appeared to be nervous. Cruz was ordered out of the car and searched. Police found 4 grams of crack cocaine and arrested Cruz. Cruz was charged with possession of crack with intent to distribute.
The trial court overruled a motion to suppress and an interlocutory appeal was taken to the Massachusetts Supreme Judicial Court. Chief Justice Roderick L. Ireland writing for the majority sided with Cruz . “By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes,” Ireland wrote. “Here, no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car. We conclude, therefore, that in this set of circumstances a magistrate would not, and could not, issue a search warrant. Because the standard for obtaining a search warrant to search the car could not be met, we conclude that it was unreasonable for the police to order the defendant out of the car in order to facilitate a warrantless search of the car for criminal contraband under the automobile exception.”
Dissenting Justice Judith Cowin was not so impressed. “Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway, ” she wrote.
The case is interesting on a number of levels, not the least of which is the rather high standard of probable cause imposed by the majority. While merely smelling marijuana does not support the proposition that a person possesses more than one ounce, doesn’t it at least support a reasonable basis for further investigation and a possible Terry, “stop and frisk” under appropriate circumstances? In Massachusetts the answer is clearly “no.”
Good lawyering by California attorney, Scott Michelman, Esq. The opinion can be found here.
~Submitted by Mark Esposito, Guest Blogger