Police cannot search people or places based solely upon the odor of burnt marijuana.
At 10:00 AM on Patriots’ Day 2011, the Supreme Judicial Court issued its decision in Commonwealth v. Cruz, a case that it had under consideration since oral arguments on December 9, 2010. Ordinarily, the SJC issues decisions within 120 days of argument. The Cruz decision issued 131 days after argument. The delay lead many to speculate that the six justices who heard the case were deadlocked, they weren’t. They were waiting to issue it on this important day in Massachusetts history and the day before 4/20.
Writing for five of the six justices, Chief Justice Ireland’s decision reaffirms the principles of the constitution of Massachusetts.
Everyone visiting this page should read the entire opinion in Commonwealth v. Cruz as it provides an outline of the power of the police during traffic violation stops equally applicable to police encounters on the street or a home.
The case was discussed beginning at about the fifty minute mark during the April 23 TWO HOTHEADS ON CANNABIS SHOW on Unregularradio.com.
Below are some compelling passages with case citations omitted:
We note at the outset of our analysis that the lesser standard of reasonable suspicion is tied, by its very definition, to the suspicion of criminal, as opposed to merely infractionary, conduct. Articulable facts, then, must demonstrate a suspicion that the defendant possessed [FN14] more than one ounce of marijuana, because possession of one ounce or less of marijuana is not a crime. See G. L. c. 94C, § 32L. There are no facts in the record to support a reasonable suspicion that the defendant possessed more than one ounce of marijuana. [FN15] We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal. [FN16] Here, there could be no suspicion of a criminal offense. [FN17]
FN14 The police also could have provided sufficient facts to demonstrate a reasonable suspicion that the defendant was “selling, manufacturing or trafficking” marijuana. G. L. c. 94C, § 32L. They did not.
FN15 For example, the officers did not see a scale, plastic baggies, or any other drug paraphernalia traditionally associated with the sale of marijuana. They did not smell a strong odor of fresh marijuana, another fact that could lend credibility to the suspicion that more than one ounce of marijuana was present.
FN16 An exit order is a further intrusion on a person’s liberty, not to be taken lightly. The intrusion should be proportional to the wrong suspected. As citizens, we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty.
FN17 The Commonwealth argues on appeal that the odor of burnt marijuana on the driver’s side of the vehicle was at least one articulable fact to pique the officer’s suspicion that the crime of “operating ‘while under the influence,’ ” quoting G. L. c. 90, § 24, had occurred. At the motion hearing, however, Officer Morgan testified that he could not recall whether the engine was running. Nor do we know from the record how long the vehicle had been parked. In these circumstances, we cannot determine whether the officers had reasonable suspicion to believe the driver was “operating” while under the influence, sufficient to order the driver out of the car. Further, the judge found that “there was no probable cause to believe” that the offense of operating under the influence had been committed. Although we agree with the dissent that, in different circumstances, the officers could have ordered the driver out of the car based on a reasonable suspicion that the crime of operating while under the influence had been committed, this does not address the propriety of the officers ordering the defendant out of the vehicle.
Given our conclusion that G. L. c. 94C, §§ 32L-32N, has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order. [FN25]
[FN25] It is no longer reasonable for the smell of burnt marijuana alone to lead an officer to suspect that criminal activity is afoot, even if the odor is present in a so-called “high crime” neighborhood. Because the issue is not before us we leave to another day whether the appropriate police action in this case would have been to issue the defendant, or at the very least the driver, who admitted to smoking marijuana “earlier in the day,” a citation under G. L. c. 94C, § 32N, based solely on the odor of burnt marijuana.
In this case, the Commonwealth argues that the officers had probable cause to search the vehicle, and the exit order was a permissible step to take in order to facilitate the search. Generally, a warrant is required to conduct a search; several well-recognized exceptions exist. Under the automobile exception, a warrantless search of an automobile is permitted when police have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable.”
In contrast, therefore, to the requirement that criminality be suspected to effectuate an exit order under the reasonable suspicion standard, a warrantless search of an automobile may be based on probable cause that contraband is present. We have held that the odor of burnt marijuana is sufficient to believe that there is contraband in the car. As the Commonwealth appears to argue, it follows then, that if the police have probable cause to believe that contraband, i.e., any amount of marijuana, exists in the car, the police may then validly conduct a warrantless search (and order any passengers out of the car to facilitate that search).
At least one court has adopted this reasoning. In State v. Smalley, the Court of Appeals of Oregon determined that, despite the decriminalization of marijuana in small amounts for personal use, when an officer has probable cause, based on the odor of burnt marijuana, to believe that a validly stopped automobile contains any quantity of marijuana, a warrantless search is justified based on the likely presence of contraband.
We are not persuaded by this reasoning. The standard used to determine the validity of a warrantless search is the same as that used by a magistrate considering the application for a search warrant. [FN29] In Massachusetts, search warrants are issued by magistrates “authorized to issue [them] in criminal cases.” G. L. c. 276, § 2B. [FN30] Moreover, this court concluded more than 150 years ago:
“Search warrants were . . . confined to cases of public prosecutions, instituted and pursued for the suppression of crime or the detection and punishment of criminals. . . . The principles upon which the legality of such warrants could be defended, and the use and purpose to which, by the common law, they were restricted, were well known to the framers of our constitution. . . . Having this knowledge, it cannot be doubted that by the adoption of the 14th article of the Declaration of Rights it was intended strictly and carefully to limit, restrain and regulate the granting and issuing of warrants of that character to the general class of cases, in and to the furtherance of the objects of which they had before been recognized and allowed as justifiable and lawful processes, and certainly not so to vary, extend and enlarge the purposes for and occasions on which they might be used . . . .” (Emphasis added.)
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. [FN31] 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. [FN32]
FN29 Even though “we have long recognized that ‘less stringent warrant requirements have been applied to vehicles,’ “due to the exigency that the inherent mobility of a vehicle creates, the rationale for this lenience is that the contraband might be “moved away while a warrant is being sought.”
FN31 We note that in other jurisdictions a search warrant could, potentially, issue. (“Under Maine law, marijuana, even in an amount that would only give rise to a civil violation, can be the legitimate object of a search warrant . . .”). In contrast, the Commonwealth has cited no law in Massachusetts permitting a search warrant to issue solely based on probable cause that a civil violation has been committed.
FN32 The Supreme Court of Minnesota used a similar analysis after the decriminalization of small quantities of marijuana in its State. The court explained that although the odor of burnt marijuana might provide probable cause to believe that a “non-criminal amount” of marijuana exists, it cannot provide the basis for probable cause to arrest because there is no probable cause to believe a criminal amount of marijuana exists. Without probable cause for the underlying arrest, there is no probable cause to support a “search-incident-to-arrest” as an exception to the warrant requirement. Id.
As was the case when racial segregation was the law, it is time for America’s legal system to correct itself. Unfortunately, reform voices are muted.
Former U.S. President Jimmy Carter, referring to the Drug War
Don’t You Mute Yours!
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