In a further expansion and clarification of search laws, the Massachusetts Supreme Judicial Court unanimously ruled that the smell of unburnt or fresh marijuana does not give police officers probable cause to order a search of a vehicle or person.
The ruling expands upon the 2011 decision in Commonwealth v Cruz that police can’t search a vehicle based on the smell of marijuana smoke emanating from a vehicle.
The decision is based on the idea that, since marijuana was decriminalized under the law in 2008, the smell of marijuana is not indicative that a crime has been committed.
“Where the 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations.. it also must be read as curtailing police authority to enforce the Federal prohibition of possession of small amounts of marijuana,” says [Justice] Lenk.
Police still sometimes try to get searches admitted, suggesting that a “very strong” odor of fresh marijuana could indicate a large amount of weed that would go beyond the 1 ounce decriminalization, and could be evidence of intent to distribute.
But in Commonwealth v. Overmyer the court rejected that logic, stating that the odor itself simply cannot suggest the quantity. since even a small amount of weed can have a pungent aroma.
In Commonwealth v Craan, the court also rejected the reasoning by police that Federal prohibition does not independently justify a search.
Will Cops Finally Relent On Marijuana Searches?
Since the decision in Cruz, police officers have been trying the “unburnt, fresh” smell as justification fairly regularly. Most district court judges have not gone along with this argument, and have readily dumped these cases when given a chance in a motion to suppress hearing.
The bottom line is that police officer certainly hate this and feel that it ties their hands. If you search enough cars where you smell weed, you are probably going to find some people with large bags of cannabis that is (possibly) for resale. And for a police officer, an intent to distribute bust is a good day’s work.
And it does tie their hands. That’s the whole point of civil liberties.
It is a great thing that the high court of Massachusetts takes our Constitutional rights as individuals very seriously.