Source: ACLU, as posted on The Daily Chronic

BOSTON, MA – The Supreme Judicial Court of Massachusetts ruled Friday, April 5, that sharing a joint is not “distribution” of marijuana, and therefore not a crime under the state’s 2008 decriminalization law.

The Supreme Judicial Court released decisions in four cases that involved arrests made after voters overwhelmingly approved the decriminalization of possession of up to one ounce of marijuana in November, 2008. The law, which replaced criminal penalties with a $100 civil infraction, went into effect on January 2, 2009.

In three of the cases, the courts found police searches and arrests violated the bounds of the decriminalization law that was approved by voters. In the fourth case, the court ruled that the cultivation of marijuana remains illegal under the law.

Despite approval by Massachusetts voters of a ballot measure in 2008 that decriminalized possession of up to one ounce of marijuana, unwarranted investigations of marijuana possession continued, based on the theory that sharing marijuana is “distribution,” even when no money changes hands.

“The Commonwealth was simply wrong to argue that sharing marijuana constitutes criminal distribution,” Matthew R. Segal, legal director of the ACLU of Massachusetts, said Friday.

“Today’s rulings mean that people who share small amounts of marijuana don’t have to fear criminal prosecution or having police officers use the sharing of marijuana as a reason to search their belongings. Just as important, hopefully these rulings mean that police officers will focus on serious crimes instead of wasting their time investigating people sharing marijuana.”

In 2008, more than 65 percent of Massachusetts voters approved a measure meant to reduce punishments for marijuana offenders. Possession of up to one ounce of marijuana is still an infraction of the law punishable by a fine, but is no longer a criminal offense.

Nonetheless, the Commonwealth argued that sharing noncriminal amounts of marijuana constitutes distribution — a crime punishable by up to two years in prison. This approach was especially troubling when applied in ways that allow even stricter penalties, such as cases involving incidents in school zones.

In Commonwealth v Jackson, SJC-11319 and Commonwealth v. Pacheco, SJC-11216, the Court concluded that “social sharing” of marijuana does not constitute the crime of distribution.

The Court stated, “a defendant who gives drugs to others ‘distributes’ those drugs whenever the defendant serves as a ‘link in the chain’ between supplier and consumer,” whereas “the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution.”

Thus, “the observation by police of several individuals using and sharing marijuana in a social setting does not provide the police with justification to conduct a warrantless search,” nor arrest them for any crime.

Commonwealth v. Pacheco stemmed from an incident that occurred after decriminalization went into effect, when a Massachusetts state trooper encountered a car with occupants who seemed to have used marijuana.

Upon ordering the occupants out of the car and searching the entire passenger compartment, he found nothing more than a single bag containing less than one ounce of marijuana. Nonetheless, the officer expanded his search to the trunk of the vehicle and to jackets and backpacks stored inside. Today the Supreme Judicial Court held that the search was unconstitutional.

“Massachusetts is already struggling to deal with the complications of the state drug lab scandal, which might require re-trying ten of thousands of drug cases, on top of the ordinary case load,” said Carol Rose, executive director of the ACLU of Massachusetts. “The Commonwealth should be doing everything it can to reduce the burden on our criminal justice system — not forcing more and more people into it for nonviolent drug offenses that Massachusetts voters have clearly said should be deprioritized in favor of fighting serious crime.”

In Commonwealth v Daniel, SJC-11214, as well as in Jackson and Pacheco, the Court decided that the discovery of a non-criminal quantity of marijuana does not justify a further search (in two cases of a car, in Jackson of a person’s backpack) for more marijuana, absent articulable facts supporting a belief that there was a criminal amount of marijuana in the location searched.

Daniel also held that the mere odor of burnt marijuana coming from a car and the recovery of a noncriminal amount from the driver, absent any evidence of impairment, did not provide reasonable suspicion that the driver was operating under the influence of marijuana.

Lastly, the Court in Commonwealth v. Palmer, SJC-11225 determined that the decriminalization statute did not repeal the crime of cultivation, even of cultivation of an ounce or less. Interestingly, three justices (Duffly, Lenk, and Gants) wrote a concurrence, stating that the crime of cultivation never encompassed cultivation purely for personal use but only if there was an intent to distribute. The majority opinion, however, rejects that interpretation of 94C, s. 32C(a).

Cape and Islands District Attorney Michael O’Keefe, president of the Massachusetts District Attorneys Association, said he disagreed with the court’s rulings.

“The public seems to have spoken on this. They seem to be saying that it’s OK to have this encouragement to dope-smoking,” said O’Keefe, who, along with most Bay State prosecutors, opposed the 2008 ballot initiative. “They can live with the consequences.”