The Smell of Marijuana: Sorry, Massachusetts Police: No Ground For Search

I don’t know how many times that I’ve blogged about the complete waste of time that police resources and taxpayer money are involved in, when police officers harass people because of marijuana. As a Boston, Massachusetts drug offense attorney, it’s more pathetic than I can describe. Here we are, plagued by increasingly violent crime of all kinds, and what do so many police departments and officers spend their time on? Pot. An essentially harmless herb. Something that’s widely accepted by numerous medical authorities as non-addictive, and far, far less harmful than thoroughly legal alcohol. Not only do medical authorities say this, but so do numerous present and former police and law enforcement officials. Anyone who doubts that, can see it by visiting Law Enforcement Against Prohibition (LEAP.)

Six years ago, in 2008, Massachusetts voters made is crystal clear how they felt about personal marijuana possession, by voting overwhelmingly to decriminalize possession of less than an ounce of pot. The new law, passed by citizen petition on a ballot question, limited the penalty of personal possession of one ounce or less of marijuana to a maximum fine of $100 – a civil offense only, akin to a parking violation. The message was loud and clear how voters felt. What was the response of most Massachusetts police departments? Issue troubling predictions of Armageddon, and streets filled with stoners. Oh, yes: And start writing tickets.

Three years ago, in 2011, the Massachusetts Supreme Judicial Court (SJC,) handed down a decision about unlawful police searches – and marijuana was the key issue. You see, in that case, police had stopped the driver of a motor vehicle. Because they detected the odor of burnt (smoked) marijuana, they concluded that a “crime” had been committed, and proceeded to search the vehicle without a warrant. The case was appealed, and the SJC ruled that given the fact that the 2008 citizen initiative petition decriminalized possession of one ounce or less of marijuana, the mere smell of burnt marijuana – standing alone – did not establish probable cause to conduct a warrantless search.

Did that strong legal message cause police to get the hint and back off when it comes to harassing people about marijuana? No, they kept at it. Before I get to the most recent chapter of this story, think about that fact for a minute: In 2008, voters decriminalized possession of an ounce or less of pot. The vote was overwhelming; it wasn’t even close. In 2011, the state’s highest court told law enforcement that the smell of smoked pot (alone) doesn’t give police the right to warrantless searches. Yet, police STILL keep at it: Harassing people – and violating their legal rights – if they think they may have pot on them.

Now, just a couple of days ago, the SJC handed down yet another decision to law enforcement on the subject of pot – this time, louder still: “Back off.” Why the need for this decision? Well, deaf to both the voters’ will in 2008 and to the SJC’s 2011 ruling on pot and warrantless searches, another police department pushed the envelope on this issue, and was soundly rejected: In Commonwealth v. Matthew Overmyer, the Pittsfield Police Department responded to a motor vehicle accident, and the officer(s) detected the smell of unburnt (unsmoked) marijuana. Based on this, police searched the car and the contents of the car, finding one bag of pot in the glove box of the car, and a larger amount in a backpack inside the car. Based on this discovery, police charged the driver with Possession of Marijuana with Intent to Distribute. Once more, the SJC ruled that police could not – based on the smell of unburnt marijuana alone – search the car without a warrant. The court cited both the 2008 ballot initiative and their 2011 decision in this most recent decision. However, the court remanded the case back down to the District Court that it came from, because other evidence involved in the case indicated that the police may have a separate, legally permissible basis for conducting the search that they did. Notwithstanding the remand back to the District Court, the court’s ruling on pot was clear: The mere smell of marijuana – whether burnt or unburnt – standing alone, does NOT allow policers to conduct searches without a warrant.

News flash to police departments across Massachusetts: Spend your valuable time, and our valuable tax money, on pursuing real crime – not people engaging in what has been repeatedly ruled is non-criminal conduct.