Smell of Weed No Longer Probable Cause For Cops In Massachusetts

By John Lavitt 08/04/14

The supreme court in the Bay State ruled in two separate cases that smell alone does not justify a warrantless search.

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As the medical marijuana revolution sweeps across the country, marijuana laws across the board are being revised or reconsidered. Such changes are shifting the relationship between citizens of local states and law enforcement officials.

In two separate cases in Massachusetts in early July, the Supreme Judicial Court of Massachusetts ruled the odor of unburnt marijuana alone does not amount to probable cause to search automobiles. Both decisions were in line with the previous decision that the smell of burnt marijuana is not cause enough to search a vehicle.

Based on the decriminalization of one ounce or less of marijuana in 2011, the same court in Commonwealth v. Cruz held that the smell of burnt marijuana no longer suggests criminal activity to justify the search of a car. Although the smell of burnt marijuana can justify a field sobriety test, it does not justify the search of a car without cause. The judge concluded that the officers could not order the defendant out of the car based on smell alone. The odor of burnt marijuana "coupled with the driver's statement that he had been smoking earlier in the day" did not indicate cause to conduct a search.

In the newest decisions (Commonwealth v. Overmyer and Commonwealth v. Craan), the Supreme Judicial Court of Massachusetts expanded on that previous decision by also prohibiting law enforcement from relying on the odor of unburnt marijuana to justify searching automobiles. The court stated the mere smell of marijuana does not give an officer the ability to determine whether the person has a criminal amount of the drug. As a result, the smell of marijuana alone cannot give rise to a warrantless search.

In Overmyer, the defendant voluntarily handed over a bag of marijuana that was in the glove compartment. Afterwards, the officers still perceived a strong unburnt smell. Based on past experience, they believed there was more in the car. The officers did not observe anything else that indicated the presence of more drugs. The defendant eventually admitted that there was more marijuana after the police officer "intimat[ed] that a [canine] unit would be on its way."

Once the admittance had been made, the defendant was placed under arrest and the defendant's vehicle was towed. Before being towed, the police found a backpack in the car with several freezer bags of marijuana clearly separated for individual sale. As a result, the defendant was charged with possession and intent to sell.

The Supreme Judicial Court of Massachusetts, however, ruled against the officers right to make the second search. Given the willingness of the defendant to turn over the first bag, there was no obvious criminal intent to justify a second search. Although the officers claimed to be going on a “hunch," the justices said a hunch was not sufficient cause to search without a warrant or to threaten a Canine search.

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Growing up in Manhattan as a stutterer, John Lavitt discovered that writing was the best way to express himself when the words would not come. After graduating with honors from Brown University, he lived on the Greek island of Patmos, studying with his mentor, the late American poet Robert Lax. As a writer, John’s published work includes three articles in Chicken Soup For The Soul volumes and poems in multiple poetry journals and compilations. Active in recovery, John has been the Treatment Professional News Editor for The Fix. Since 2015, he has published over 500 articles on the addiction and recovery news website. Today, he lives in Los Angeles, trying his best to be happy and creative. Find John on Facebook, Twitter, and LinkedIn.