Massachusetts Legal Developments Blog

Faint Odors and Social Sharing: Recent Developments in Massachusetts’ Marijuana Laws regarding Search and Seizure and Criminal Distribution

In recent years, Massachusetts voters have called for significant change in Massachusetts’ drug offense law. For example, in January 2009, a voter approved referendum to decriminalize the possession of one ounce or less of marijuana went into effect in Massachusetts. The law, Massachusetts General Law C.94c, S. 32L, established that possession of one ounce or less of marijuana by a person eighteen years old or older, is a civil offense in Massachusetts, punishable by no more than a $100 fine and forfeiture of the marijuana. As simple as it seems, the law is far from straightforward in its application. In fact, the measure’s impact on criminal laws and criminal procedural laws, specifically those pertaining to search and seizure and criminal distribution, have been a subject of recent scrutiny by the Massachusetts Supreme Judicial Court.

In the last couple of years, the Massachusetts SJC has had occasion to develop its jurisprudence on the harmonization of the marijuana decriminalization law and the Fourth Amendment’s restriction against unreasonable search and seizure. The SJC rendered its first landmark decision in 2011 in Commonwealth v. Cruz. In that case, the Commonwealth sought to appeal the lower court’s ruling that evidence that the defendants were in possession of drugs was suppressed because it was obtained unlawfully when police ordered the defendant out of his vehicle and searched it based on a “faint odor” of marijuana and the defendant’s statement that he had smoked marijuana earlier that day. In reviewing the factors the police set forth as warranting reasonable suspicion to search, the SJC held that reasonable suspicion must be based on criminal activity as opposed to infractionary conduct, and that the “faint odor” coupled with the defendant’s statement that he had smoked earlier in the day suggested that any marijuana in the defendant’s possession would have been less than one ounce. The SJC affirmed the lower court’s decision to suppress the evidence.

The SJC further expanded its analysis of the decriminalization law in terms of search and seizure in 2012 in Commonwealth v. Daniel. The Defendants in Daniel had moved to suppress evidence of firearms based on the marijuana decriminalization law after they had been stopped and searched for a motor vehicle infraction by Boston police. The lower court suppressed the evidence, and the Commonwealth appealed the decision to the SJC. The SJC found this case distinguishable from Cruz, where police only smelled the faint odor of marijuana. In Daniels, the police smelled the odor of freshly burnt marijuana, and the driver handed the police two baggies of marijuana after police questioned her. The driver had also been driving erratically. Based on these factors, the SJC reversed the lower court’s decision to suppress the evidence based on the decriminalization law.

Finally, in a case decided this April, 2013, the SJC showed its intent to give full effect to the voter’s intentions in passing the decriminalization law. In Commonwealth v. Jackson, the SJC was presented with a case involving the issue of whether the sharing of a joint fulfilled the elements of criminal distribution of marijuana. Until the SJC’s decision on this issue, it was believed throughout Massachusetts that even though possession of one ounce or less of marijuana was not a crime, the sharing of a joint containing an ounce or less of marijuana was still criminal distribution. The SJC clarified the law, holding that the social sharing of marijuana is akin to simple possession, and that such conduct does not violate the distribution statute.

Massachusetts’ marijuana laws are often difficult to navigate and, as illustrated above, are rapidly changing. If you have been charged with a marijuana-related offense, you should seek out the assistance of an experienced attorney immediately.