Cops are a problem.
Of course, not all cops are bad, and not all cops oppose decriminalization and legalization. There are actually lots of decent police officers in the community who would much rather be doing actual public safety than busting harmless pot smokers. And the fine folks at Law Enforcement Against Prohibition have been tirelessly pointing this out and doing fantastic advocacy work.
But far too many police officers are simply behind the times. They are stuck in old ways of thinking. They were weaned on enforcing the war on drugs, running DARE programs for kids, and absorbing prohibitionist propaganda.
But ALL cops are going to have to adapt to a future that we are creating after decriminalization and, soon, legalization. Because the capacity of police to cause enormous problems for harmless marijuana smokers remains far too high.
We are going to need ironclad laws that defend the rights of marijuana smokers, and we can absolutely get there.
The Courts matter a great deal in this, and we are fortunate here in the Commonwealth that the judiciary has been very responsive to the will of the people after decriminalization passed.
I am a criminal defense lawyer by trade, so since that is my beat, I can cite some examples of the difference between good laws and bad laws, and how the court enforces them.
The Massachusetts Supreme Judicial Court has played a very important role in defended our rights against illegal search by police officers.
After decriminalization passed in 2008, police officers continued to search anyone if they smelled marijuana on their person or in their car, claiming that was sufficient reason to suspect criminal activity. But the courts ruled first in 2011 that the smell of burnt marijuana was not sufficient cause for police to initiate a search of your car without a warrant.
The police didn’t like it, and still kept bringing marijuana cases based on illegal searches into court, trying different rationales and angles. The courts reaffirmed it in 2013, making it even more explicit, that if you smell that someone recently smoked weed, that is absolutely not a valid reason to search their car.
The cops finally accepted this, but then kept searching people anyway, claiming in police reports that they smelled “fresh” marijuana, implying that clearly meant the person had bags of marijuana they were going to sell, so a warrantless search was justified.
Some Drug Charges Cases I Have Won
I’ve had a few recent “marijuana smell” cases. I had a case where a cop claimed he smelled weed in a car, executed a search, and found a bag of weed sealed in a ziplock bag in the truck. I was looking forward to the officer trying to explain how he could smell weed sealed in an airtight bag, but I never got to hear the officer explain that, since this happened just after courts put out another ruling this year that said, no, the smell of “fresh marijuana” is no more a valid predicate for a warrantless search than the smell of smoke, so the case was dismissed.
I also had a case where an officer saw a grinder in a car, and said he smelled marijuana. The police officer proceeded to make a search of the vehicle based on that, and found some LSD and molly. The prosecutor knew the case was a loser, and quickly made a deal for charges dropped after my client agreed to perform some community service. The prosecutor knew that the judge was almost certainly going to dump the case based on my motion to suppress.
The cops keep looking for loopholes, and the courts keep stuffing them.
A few good judges can make an enormous difference, obviously at the US Supreme court level, and in the Mass High court, but in district court as well.
We had a case in my office where a man was charged with operating under the influence of marijuana. There was hardly any evidence to suggest that the man was driving impaired. The police officer followed him for 15 minutes, and observed no traffic infractions. The ended up pulling him over anyway, and charging him with OUI-drugs. The officer was a “drug recognition expert”, and passengers in the car had been smoking weed. The officer used that professional certification to suggest that he “knew” the defendant was high, based on his training. Despite the evidence of impairment being incredibly weak, the jury relied on and believed the officer’s authority and “expertise” and voted to find him guilty.
But the judge in the case actually tossed out the jury verdict, and issued a directed verdict of not guilty from the bench. It is a rare occasion for a judge to overrule a jury, but , saying that the case was so weak, that it made no sense that jury could have concluded he was guilty.
That’s the difference a judge can make.
When police interpret the laws as they please, especially if they are supported by politicians, either overtly or by turning a blind eye, we can end up with a situation like they’ve had in New York, and other places with aggressive “stop and frisk” policies.
New York actually decriminalized possession of under 25 grams marijuana in 1977, yet always has some of the highest marijuana arrest rates. Why? Because the law was badly written, and badly interpreted by the courts. It’s only decriminalized it if is “out of public view”. But the cops can feel free to order you to empty your pockets without cause, and bingo, suddenly your bag of weed is “in public view”, therefore you committed a crime.
The laws are going to change, and I believe Massachusetts will enact full legalization in 2016.
Legalization is supported by half of Massachusetts voters in recent polling, and all trend-lines have been up. When legalization hits the ballot in 2016, everyone will have 2 full years of data on Colorado and Washington, and it will be obvious that the sky didn’t fall, and there is simply no good reason to continued prohibition.
When I interviewed regular Boston freedom rally speaker Richard Evans, a Northampton attorney, one of his most interesting insights was that “The people always supported reform”. Whenever reform or legalization gets on the ballot, it almost always wins.
But we will need the courts to continue to protect our rights under the law, and police will be forced to adapt and change to a world of legal weed.
And eventually, we will need the laws and courts to protect marijuana use as a basic civil right. To be free from the risk of being fired for failing a drug test that has nothing to do with your job performance. Or the significant issues in family court, where even legal marijuana use can still be used against you, and put you at risk losing your kids.
I believe we will get there, and Massachusetts can lead the way.
Russell Matson will be speaking at the Boston Freedom Rally on Boston Common, September 13th and 14th.