The Massachusetts Supreme Judicial court has determined that the smell of marijuana is not sufficient reason for police to order a search or a vehicle. Our office won a recent possession with intent to distribute case with a motion to suppress based on this ruling.
In Commonwealth vs. Cruz, the SJC determined that in light of Massachusetts having decriminalized marijuana in 2008, the smell of marijuana coming from a vehicle is not evidence of a criminal act, and therefore not a justification for a search of a vehicle.
We recently won a case based on a motion to suppress based on this decision.
Our client was pulled over late one night due to a defective license plate light. In the police report, the officer indicated he’d identified the smell of “fresh marijuana”, and requested that our client and his passenger exit the car, to which they agreed.
The officer searched the car and found several small bags of marijuana and a scale. Based entirely on the evidence from this search, our client was charged with unlawful Possession with Intent to Distribute a Class D substance (marijuana), a serious felony drug charge.
We filed a Motion to Suppress the evidence from the stop, based on the Cruz decision, which is precisely on point. The odor or marijuana, whether fresh or burnt, is very clearly not a sufficient cause to order the defendant and his passenger out of the car, or initiate a search of the contents of the vehicle.
The judge agreed with our argument and accepted the motion, and the charges were dismissed.
This was a fairly clear cut case of an illegal search based on the Cruz decision, yet police still try this quite regularly. And the stakes were quite high for this defendant, possession with intent to distribute is a quite serious charge. Even though it was a fairly small amount of marijuana, the fact that it was in several bags and there was a scale present nearly always means the prosecution will suggest that the intent was to sell.