Marijuana In Massachusetts

Part of our practice at Fraser Law is focused on representing people charged with crimes. In response to several “inquiring minds”, we write about marijuana possession. In early April, 2013, the highest court in the Commonwealth decided a case involving possession of marijuana. The setting: an SUV.

A Boston police officer pulled over the driver of an SUV based on a traffic violation and an equipment failure. Once the police officer approached the SUV, he smelled the odor of freshly burnt marijuana. In response to questions posed by the police officer, the driver produced two small bags of marijuana. The driver reported to the police officer that the smell of marijuana came from a party the driver and passenger attended. The police officer ordered the occupants out of the SUV and he searched it.

The Supreme Judicial Court ruled that the search was illegal. Why? In 2008, a law was enacted which made possession of one ounce or less of marijuana a civil infraction, rather than a criminal one. In 2011, the Court ruled that, based on the 2008 change in the law, the smell of burnt marijuana alone did not provide probable cause to believe that there is evidence of a specific crime or a criminal amount of contraband (i.e. more than one ounce of marijuana). In this case, there was no evidence that the operator was driving under the influence of marijuana. The mere presence of the smell of burnt marijuana coupled with the production of two small bags (which were well under one ounce) gave the police officer no right to believe the driver had committed a crime.

The opinion is: Commonwealth vs. Daniel, 464 Mass 746, 985 NE2d 843 (2013).

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