MA Supeme Court Restricts Police Searches Based on Odor of Marijuana

Now that possession of marijuana for personal use is no longer a crime in Massachusetts, the Supreme Court has ruled police cannot order occupants of a vehicle to exit the car just because they smelled marijuana. From today's ruling:

"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...."Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute,

The ACLU, which participated in the case, says:

“Today’s ruling is a strong statement that police cannot treat decriminalized conduct as if it were a serious crime. Heavy-handed police enforcement in the face of minor drug infractions not only wastes public resources but disproportionately affects communities of color.”

What happened, according to the opinion (link is only temporary, the case is Commonwwealth vs. Benjamin CRUZ. SJC-10738. April 19, 2011):

Patrolling in plain clothes and an unmarked Ford Crown Victoria automobile, the officers drove down Sunnyside Street at approximately 5 P. M., and saw a vehicle parked in front of a fire hydrant. The vehicle's windows were rolled down and it was light outside. Inside, the officers could see a driver and the defendant, who was sitting in the front passenger seat. As the officers drove down the street, Officer Diaz saw the driver light a small, inexpensive cigar that is commonly known to mask the odor of marijuana smoke.

Both officers recognized the defendant as a neighborhood resident who lived on Sunnyside Street. Officer Morgan testified that he had previously seen the defendant smoking a marijuana "blunt," but the defendant was not known to either officer as a dangerous person, involved in any gang-related activity or violence. Neither officer was aware that either the driver or the defendant had ever been arrested. In fact, Officer Diaz had spoken to the defendant, a nineteen year old man, on several previous occasions about remaining out of trouble. Diaz had suggested ways for the defendant to exempt himself from the "crowd" and encouraged him to do more than "hanging out."

Pulling up next to the car, Officer Morgan asked the driver to explain why he was parked in front of the fire hydrant, a civil motor vehicle violation. See Traffic Rules and Regulations of the City of Boston art. 4, § 1(6) (2003). The driver replied that he was waiting for his uncle, who lived in a house on Sunnyside Street. While the officers were stopped next to the car, Officer Morgan saw the defendant smoking a cigar. At this point, both officers got out of their unmarked cruiser and walked toward the car. Officer Morgan approached the driver's side, and Officer Diaz went to the passenger side. From the driver's side, Officer Morgan could smell a "faint odor" of burnt marijuana.

Officer Morgan noticed that the driver was "very nervous, had trouble breathing" and "it almost looked like he was panicking." When asked whether he had been smoking marijuana, the driver replied that he had smoked "earlier in the day." Morgan asked the driver if there was anything inside the car that the officers "should know about." The driver responded, "No." Meanwhile, Officer Diaz saw that the defendant appeared "nervous" and made little eye contact with Diaz, choosing to look straight ahead or down. Neither officer saw any contraband or weapons within plain view in the car. There was no evidence that either the driver or the defendant made any furtive gestures or threatening movements. [FN6]

The officers neither cited the driver for parking in front of a fire hydrant nor asked for his license and registration. Neither officer conducted any field sobriety tests to determine if the driver was presently under the influence of marijuana.

Instead, the officers called for backup, and four additional officers arrived on the scene in two marked cruisers. Once backup arrived, and based on "the odor of marijuana and just the way they were acting," both the driver and the passenger were ordered out of the car by Officers Morgan and Diaz. [FN7] As the defendant stepped out of the car, Diaz asked him if he had "anything on his person."

In the presence of the six police officers, the defendant told Diaz he had "a little rock for myself" in his pocket. Diaz reached into the defendant's pocket and retrieved the item, which Diaz estimated to be approximately four grams of crack cocaine. No Miranda warnings were given to either the defendant or the driver before the crack cocaine was seized.

Outcome: the Court suppressed the crack cocaine.

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  • Display: Sort:
    Nice ruling... (5.00 / 0) (#4)
    by kdog on Wed Apr 20, 2011 at 01:30:20 PM EST
    I would add that smell is no proof or probable cause for impairment while driving anyway...the really nice strains reek right through the ziploc like you got one burning.

    I got one friend who is so paranoid of the smell giving an officer reason to toss the car during a routine stop that he triple bags, then puts it in a jar with dryer sheets, then duct tapes the lid of the jar, then places it in the trunk with the spare tire.  And my finely-tuned beek can still smell it...the stuff is that pungent.

    happy holiday! (none / 0) (#6)
    by CST on Wed Apr 20, 2011 at 03:50:39 PM EST
    great time for this ruling to come out :)  I'm sure lots of people in MA will be taking advantage of the decriminalized status today.

    I know that she is only a woman, but (none / 0) (#1)
    by honora on Tue Apr 19, 2011 at 09:20:18 PM EST
    I am surprised that the story of Bei Bei Shuai does not interest you in any way. http://abcnews.go.com/US/pregnant-woman-ate-rat-poison-charged-murder/story?id=13402629 Maybe if she had a cute tag line like "suicide while pregnant", she would get more press. While I think Manning and the pot heads in Massachusetts are being treated unfairly, Ms. Shuai is being tried for  murder, when a non-pregnant "offender" would be provided with mental health services and compassion. Sometimes one only has to agree with John Lennon and Yoko and admit that women are the ni##ers of the world.

    Well someone needs to (none / 0) (#2)
    by dead dancer on Wed Apr 20, 2011 at 07:04:40 AM EST
    start their own blog!

    On topic:

    A bit of sanity in the war on drugs. To bad this is so easily gotten around by officers.


    Or da Stooopid Cops Bust in Only to Find... (none / 0) (#3)
    by ScottW714 on Wed Apr 20, 2011 at 09:33:27 AM EST
    How in the world (none / 0) (#5)
    by Zorba on Wed Apr 20, 2011 at 02:14:32 PM EST
    does anyone confuse skunk odor with marijuana odor?  Good lord, then out here everyone must be growing and smoking mj, because skunk odor is a fairly regular occurrence (skunks don't, unfortunately, seem to be at all intimidated by cars, and never seem to try to get out of the way;  too many people wind up hitting the skunks).

    Poor folks have poor ways (none / 0) (#7)
    by Rojas on Wed Apr 20, 2011 at 06:22:24 PM EST
    never got a hold of any skunk weed I reckon.

    field sobriety test? (none / 0) (#8)
    by diogenes on Fri Apr 22, 2011 at 10:51:49 PM EST
    If you get pulled over for some just cause and the smell of marijuana wafts out of the car, can't you be pulled out of the car for a field sobriety test?  After all, driving while impaired is still a serious offense in some jurisdictions.