Ma Court Rules Smelling Marijuana Not Enough To Justify Searching a Vehicle

By Steve Elliott of Toke of the Town

It’s a logical outcome of decrim, and it finally happened today. The mere odor of burning marijuana is no longer reason enough for police officers to order a person out of their car in Massachusetts, now that possession of less than an ounce of pot has been decriminalized there, the state’s highest court ruled on Tuesday.

“Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order,” the Supreme Judicial Court ruled in a decision written by Chief Justice Roderick Ireland, reports Martin Finucane at the Boston Globe.

According to the court, the people’s intent in passing a ballot question which decriminalized possession of small amounts of cannabis was “clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction.”

“Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public not in accord with the plain language of the statute,” the court ruled.

In a long-overdue triumph of logic, the court ruled that the change in the law should — you guessed it! — affect how police behave in the field.

Justice Judith Cowin, who has since retired, wrote a dissent in the 5-1 decision. She wrote that up until this ruling, Massachusetts state law has allowed police to perform a warrantless search if they smelled burnt marijuana in a car.

“Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway,” she wrote in a torturous example of non-logic.

“Our case law is clear that ‘the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby,’ ” Cowin wrote.

“The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana’s odor. Nor has decriminalization affected the criminal status of numerous other activities involving marijuana,” she wrote, inadvertently revealing that her fevered imagination around what those potheads must be doing is a lot keener than is her shaky legal acumen.

Massachusetts voters in November 2008 overwhelmingly approved Question 2, which decriminalized marijuana, with backers calling for a “more sensible approach” to marijuana laws and asking law enforcement to focus on more serious and violent crimes.

Article From Toke of the Town and used with special permission.