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  1. Terrapinzflyer
    The odor of burnt marijuana is no longer enough for police officers to order a person from their car, now that possession of less than an ounce of marijuana has been decriminalized in Massachusetts, the state's highest court ruled today.

    "Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order," the court ruled in a decision written by Chief Justice Roderick Ireland.

    The court said the people's intent in passing the ballot question decriminalizing the possession of small amounts of marijuana was "clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction."

    "Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute," the court said.

    Justice Judith Cowin, who has since retired, penned a dissent.

    She wrote that up until today, state law has allowed police to perform a warrantless search if they smelled burnt marijuana in a car.

    "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.

    "Our case law is clear that 'the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby.' The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana's ordor. Nor has decriminalization affected the criminal status of numerous other activities involving marijuana," Cowin wrote.

    Voters in November 2008 overwhelmingly approved Question 2, which decriminalized marijuana, with backers calling for a "more sensible approach" to marijuana policy and focus by law enforcement on more serious and violent crimes. Opponents argued that the law would promote unsafe drug use.

    By Martin Finucane, Globe Staff
    April 19, 2011



  1. kailey_elise
    Court: Marijuana smoke odor in car not enough for police action

    [imgl=black]http://www.drugs-forum.com/forum/attachment.php?attachmentid=19937&stc=1&d=1303316440[/imgl]BOSTON (Reuters) - The smell of marijuana smoke is no longer enough reason for police to order someone out of a car, now that pot has been decriminalized in Massachusetts, the state's highest court said in a decision published on Tuesday.

    The ruling by the Massachusetts Supreme Judicial Court was in response to an appeal filed by lawyers for Benjamin Cruz from Boston, whom police ordered out of a car in 2009 when they approached the vehicle parked in front of a fire hydrant and smelled marijuana.

    Cruz was later charged with possession of a class B controlled substance with intent to distribute and committing a controlled substance violation in a school zone.

    The high court said a key factor in its decision was the 2008 change in state law which made possession of one ounce or less of marijuana a civil rather than a criminal offense.

    "Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burned marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order," the opinion said.

    In a dissenting opinion, now retired Justice Judith Cowin wrote, "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."

    "The odor of marijuana permits an officer reasonably to suspect that the parties involved are in possession of criminal quantities of marijuana or are in possession of marijuana with intent to distribute," she wrote.

    BOSTON | Tue Apr 19, 2011 5:02pm EDT
    (Reporting by Lauren Keiper; Editing by Barbara Goldberg and Jerry Norton)


  2. talltom
    Here's a follow-up related to Kentucky:

    What effect will Massachusetts Supreme Court pot ruling have in Kentucky?

    Law enforcement officials and prosecutors are concerned that a recent Mass. Supreme Court decision will hamper efforts to prosecute people for driving under the influence of drugs. Another concern is that marijuana drug busts will be harder to justify.

    Defense lawyers, however, agree with the Supreme Court decision. Massachusetts, like Kentucky, passed a state ballot in 2008 decriminalizing possession of one ounce or less of marijuana. The court ruled the police need more cause than marijuana odor to order someone to exit a car. The odor of marijuana, the court found, is not indicative of criminal activity.

    Worcester District Attorney Joseph D. Early Jr. said, “If a police officer smells the distinctive odor of marijuana, if their training and experience tells them something else is going on, they should be able to do their jobs.”

    The Worcester Telegram & Gazzette reported:

    The ruling resulted from a case involving Benjamin Cruz. In June 2009, Mr. Cruz was a passenger in a car stopped in Boston. Police smelled burnt marijuana and ordered him out of the car.

    When asked by police if he had anything on him, Mr. Cruz allegedly said he had some crack cocaine. It was seized and he was arrested on drug charges. A lower court suppressed Mr. Cruz’s statements to police and the Supreme Judicial Court upheld the decision.

    In the 5-1 ruling, Chief Justice Roderick Ireland wrote, “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.”

    Before her retirement, Justice Judith Cowin wrote her dissenting opinion, stating past cases in the state show that warrantless searches of cars can be conducted if officers smell marijuana.

    She argued the decriminalization law does not change the criminal status of other activities involving pot.

    “In this case, the officers’ detection of the odor of marijuana provided basis for a reasonable suspicion that the individuals in the vehicle might be involved in the commission of a crime,” she wrote.

    Leicester Police Chief James Hurley is worried about the decision. “Whatever action we take, we are exposed to potential sanctions and liability. In my opinion, it isn’t fair to law enforcement to be in that position.”

    Chief Hurley claims, "Under the same circumstances with alcohol, an officer would not let someone drive off if they smelled booze on the person’s breath. Every single car driving around could be at risk if a driver is under the influence of marijuana.”

    Lawyer Steven Epstein, spokesman for the Massachusetts Cannabis Reform Coalition, correctly argued, "Scientific research shows most people driving under the influence of marijuana drive slower and recognize they are impaired. It is unlike alcohol which tends to make a driver believe they can drive. The real issue is law enforcement’s need to order people around"

    A. Wayne Sampson, executive director of the Massachusetts Chiefs of Police Association claims, "The most prevalent drug in the state is pot. Marijuana trafficking is big business and before the ruling, police could use smelling pot as probable cause to search. There could be a major impact on large-scale trafficking operations that had been successfully prosecuted on that odor alone.”

    Fitchburg defense lawyer Edward P. Ryan Jr. also agrees with the ruling. "Simply put, the new law decriminalizing possession of one ounce or less of marijuana does not support probable cause for a search."

    Kentucky's recent ruling decriminalizing one ounce or less of marijuana is similar to the law in Massachusetts.

    Will the ruling in Massachusetts stand? If so, how will this affect similar cases in Kentucky?

    Christopher Hignite,
    Lexington Courts Examiner
    April 29th, 2011

  3. kailey_elise
    [size=-1]... please excuse my rambling; I do have a question & if you wanna just scroll down to the * to see if you have any answers/ideas, feel free. ;) ...[/size]

    You know, I wonder if this would have gone the way it did, if the person in question had been the DRIVER. He was in the passenger seat & the cop smelled "burnt" marijuana...but that has no bearing on the passenger. The point is to stop people driving under the influence - there's no way to know if it were just the passenger smoking, and maybe that's part of why it went the way it did. They *can't* know if the driver's impaired by smelling smoke if there are other people in the car (of course, I'm sure it's very rare that the passenger(s) would be smoking & not the driver as well, but it happens).

    I wonder if they'll make a law about no one being allowed to smoke marijuana in a vehicle, like they have the laws (at least in MA) that no one can be drinking in the car (you can't even have an open container! Like, a bottle that's been opened - I think you're supposed to leave it in the trunk; I understand sort of, but it seems silly, since I could be sober & just be taking a half-empty bottle of vodka from my house to the party. but whatever...).

    I still feel the need to point out the idiocy of the cops bothering some people sitting in a PARKED CAR.
    They shouldn't have parked in front of a hydrant, but hey, have you tried to find a parking space in Boston lately? ;) Again, I don't know if the case would have turned out the same way had the cops pulled the car over, or the kid had been in the driver's seat. A friend of mine got in trouble because he & his buddy were shooting up in a supermarket parking lot (don't ask - I don't know what they were thinking, either); my friend got in more trouble (an extra charge or two, I can't recall exactly now) because he was in the driver's seat & there was an assumption that he would be driving off intoxicated, I guess. Which doesn't completely make sense - what if they were shooting up, then going food shopping? He wasn't necessarily drive off right after.

    [size=+1]*[/size] If they pull over a car for whatever stupid reason they made up, could they work in something for probable cause? Or if they smelled cannabis burning when they pulled someone over, isn't THAT still probable cause or something, because then s/he's operating under the influence? People are getting up in arms about this ruling, but because the car was PARKED, it's pretty much no different than if the cops saw you sitting on a bench & asked you to get up & frisked you, for no reason. However, I'm not sure what the ruling was based on, & if they specified that sitting in a parked car with "burnt marijuana smell" is no reason to make someone get out of the car, or did they really leave it open to a vehicle in any condition?

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