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.
Source: Reuters
~Submitted by Mark Esposito, Guest Blogger
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rafflaw
1, April 23, 2011 at 3:14 pm
The threshold of being able to search because one of the officers “smells” marijuana is stupid
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When I read the headline and clicked on the article, that’s the basic issue I expected to be dealt with in this case, but it wasn’t. The majority didn’t say, “It’s often a crock of crap when police claim that they smelled marijuana smoke.” Instead they said something along the lines of “It didn’t look like more than one ounce of marijuana….” They left open future situations where police can kick in doors or drag people out of cars based on the claim that they smelled a transient, impossible to document smell where it is generally impossible to accurately trace the source of the smell…
pete,
I was pulled over frequently when I was in college, just because I drove a VW Microbus and the cops were sure that I was running drugs. Of course, I wasn’t. But that didn’t stop them from trying.
raff
i’ve been pulled over in two states for “weaving in my own lane”. this translates to “he broke no laws, all his lights were working but we wanted to pull him over anyway”.
“i smelled marijuana” means now he can search the vehicle.
the office said he smelled marijuana over the smell of a cigar (yo ho rinny) and the occupant was nervous (see marijuana, effects of). yet he didn’t find marijuana, he found crack.
if you get a search warrant to look for the murder weapon (a knife) and you find a gun, can you change the cause of death?
The threshold of being able to search because one of the officers “smells” marijuana is stupid. The police can and have abused that type of standard so many times it surprises me that we haven’t seen this kind of appellate decision earlier. Even without decriminalizing the drug, how can anyone show that the cop’s nose is accurate? In this case they didn’t find marijuana did they? So the cop’s smell test smells funny.
BTW,BIL now thats funny:
“I’ll think she’s closer to home when she proves to me she can smell the difference between a half ounce and a half ton.”
“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.”
And he walked,”Great!!, lawyering by California attorney, Scott Michelman, Esq.”
“Judge Judy is an imbecile. In sunny CA, the smell of mj comes and goes on the sea breezes with the smell of salt. I live in a row of six apartments in Hollywood and in the evening-time, it’s like incense around here.”
Judge Judy is not an imbecile. She knows the difference between practically no public danger of dope in a house, vs huge public danger of drug users in a vehicle designed to face oncoming traffic.
In my view, the infraction ought be considered in the same light as an open container. But even an open container doesn’t generate smoke, potentially affecting a driver.
The police are going to have to work a little harder now that a mere sniff no longer suffices.
I like the decision.
Judge Judy is an imbecile. In sunny CA, the smell of mj comes and goes on the sea breezes with the smell of salt. I live in a row of six apartments in Hollywood and in the evening-time, it’s like incense around here.
If mj were legalized tomorrow, few of my friends would take it up. One stops breathing. Not a good sign. Another’s guts turn over opposite of what happens to most of us. Another does not feel anything different. This is the result from consuming a plant requiring no processing from dirt to lip. The drug is allowed to float in the system, and absorbed as needed. In the hands of cigarette companies, legal pot will contain the same addictive crap tobacco does, pounding the pot into your system, like it or not.
Legalize today, and seriously undermine border violence while creating a heavily job-laden multi-billion dollar industry virtually overnight.
James M.,
I’ll think she’s closer to home when she proves to me she can smell the difference between a half ounce and a half ton. Until then, her reasoning is specious excuse making for 4th Amendment violations. The standard is “reasonable suspicion” with the focus on “reasonable”. Smell of a legal substance is not reasonable suspicion to search for illegal activity related said legal substance. If so, then smelling chocolate would be a reasonable suspicion for search too. There are all kinds of possible crimes related to that legal product, from product tampering to tax evasion. But smelling chocolate wouldn’t be a reasonable reason to violate somebody’s 4th Amendment rights. Why should marijuana smokers not be afforded the same Constitutional protections as chocolate eaters? The 4th Amendment is under attack enough by the creeps in government without such judicial assistance as Judge Judy was willing to provide. Sure, it’s reductio ad absurdum, but it works for me.
Take it one step further in that twisted reasoning of the dissent” “A copy of High Times magazine was observed laying on the car seat. Although owning a magazine with a picture of marijuana on the cover is no longer criminal, possession of the magazine may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway,”
BIL is right. They actually let that judge out of the house without a keeper?
BIL,
Possessing more than 1 ounce of “chocolate” is still a crime? Selling chocolate is still a crime? Intent to distribute chocolate is still a crime?
I agree with the majority, but the Justice isn’t that far out of left field. In this case, decriminalized does not necessarily mean legal.
It’s a logical result of decriminalization.
I wish there was some way to get at the real root of the problem with this as a justification for a search nationwide — police lying about smelling marijuana. It’s a frequent lie because there is almost no way to disprove it. Even with a video camera on them, there’s no way to prove whether or not they smelled marijuana. I also love the weasel word “faint”; as in, “Oh, if we don’t find anything, we can just say he must have smoked some earlier.”
“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.”
Contrast with . . .
“Dissenting Justice Judith Cowin was not so impressed. ‘Even though possession of a small amount of chocolate is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving chocolate, that are indeed criminal, are underway,’ she wrote.”
Legal is legal, Judy.
That’s some fine police state Gestapo-like legal reasoning there, “Judge”.
Thankfully junk reasoning like that was confined to the dissent.
Seriously . . . they let you out of the house with a brain like that?
I can’t agree with dissenting Justice Judith Cowin. A noncriminal activity is not a reasonable basis to suspect criminal activity.
Absolution in Herbs…. Great decision…. but you know….all those weed smokers have casche of hard drug some place…..maybe the dealers….but not the users is my understanding…..