Posted on 4/23/2011, 1:33:00 AM by Ken H
Massachusetts Supreme Judicial Court rules a police officer may no longer search a motorist merely on the basis of smelling pot.
The highest court in Massachusetts ruled Tuesday that a police officer is not justified in stopping and searching an automobile merely because he smells the presence of marijuana. The Supreme Judicial Court took up the case of Benjamin Cruz to clarify the legal impact of a 2008 voter referendum that had decriminalized possession of less than one ounce of pot in the Bay State.
On June 24, 2009, Boston Police Officers Christopher Morgan and Richard Diaz were cruising the Hyde Square neighborhood in an unmarked Ford Crown Victoria in plain clothes. At around 5pm, the officers spotted Cruz in the passenger seat of a car parked on the side of the road in front of a fire hydrant. Cruz was smoking a small cigar with the windows rolled down. The officers got out of their car, approached Cruz and asked what he was doing. Officer Morgan claimed he smelled a "faint odor" of marijuana and Officer Diaz noted that Cruz appeared to be nervous. Cruz was ordered out of the car and searched. Police found 4 grams of crack cocaine and arrested Cruz.
A lower court judge ruled that the officers had no reasonable basis to order Cruz out of the car because there was no evidence that any crime had been committed. The supreme court majority agreed.
"Although we have held in the past that the odor of marijuana alone provides probable cause to believe criminal activity is underway, we now reconsider our jurisprudence in light of the change to our laws," Chief Justice Roderick L. Ireland wrote. "Our analysis must give effect to the clear intent of the people of the Commonwealth in accord with article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution."
The high court argued that the officers could have ticketed the vehicle's driver for parking by a hydrant, but no more. The court cited arguments made in the official voter guide to explain that voters intended to have police focus on more serious crimes than marijuana possession.
"By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes," Ireland wrote. "Here, no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car. We conclude, therefore, that in this set of circumstances a magistrate would not, and could not, issue a search warrant. Because the standard for obtaining a search warrant to search the car could not be met, we conclude that it was unreasonable for the police to order the defendant out of the car in order to facilitate a warrantless search of the car for criminal contraband under the automobile exception."
Source: Massachusetts v. Cruz (Massachusetts Supreme Judicial Court, 4/19/2011)
On the other hand, in MA, the cops can smell a car full of pot smoke, and they just have to let you go, since there's no real evidence of a crime.
Two crazy states. Crazy in different ways, but crazy.
I like this ruling.Ma.cops have been out of control for years!
Since the cops did not find any pot, they were probably lying about the basis for their search.
Of course if there is an open bottle of beer in a car, then it is off to the slammer.
Like the crack they found in his car when they searched it?
In this case the allegation was they smelled a “faint” odor and no pot was found. Doesn’t quite pass the smell test.
but..hey..a whiff of bourbon?...off to the slammer!!!!
but..hey..a whiff of bourbon?...off to the slammer!!!!
Right!
That is why we need to trim the State’s ears. They have made a mockery of probable cause.
My understanding is that open container laws only apply to the driver, so I'm not sure the smell of alcohol would have been grounds for a search in this case.
Had Cruz been driving, then I would think DUI laws would have applied and the search would pass muster.
As much as I believe that Massachusetts voters screwed the pooch with this one, I’m inclined to agree. If a scent of marijuana is reasonable cause a crime is occurring, then they have the right to search the car, but there’s no such thing as reasonable cause to suspect a violation. No crime, no search. And there’s no basis to presume that there’s a criminal amount of marijuana.
Now, the stupid thing is that the police just showed they can’t be trusted in detecting a faint whiff of marijuana. How much of an odor of marijuana must be detected for it raise to the level of witnessing a crime? How about if they smell marijuana and see someone smoking a rolled cigarette?
That's the basis for cases like this one. More often than not the cops claim to smell weed just to justify the search and IF they find anything at all, its not weed and in many instances the items found have no distinct oder of their own... guns, etc...
Its just another example of why more and more folks are losing trust in the cops.
I was stopped in Nashville by a narcotics unit and they claimed an odor of weed to justify a search of my vehicle. I had just left work, (the airport) was still in uniform (a pilot) and was driving a brand new car, still had the state issued temp tag on it.
So I knew they were full of shit when they said they smelled weed.
They actually tore the car apart, called in a "crime scene unit" and a detective who attempted to questioning me about my travels, idiot even wanted to see my passport.
They did over $8,000 in damage to the car during their "search" which located nothing. Kept me detained for almost 3 hours and tried to question me 4 more times after I told them I wasn't answering any question without my lawyer present.
I sued them and they settled out of court, two officers involved quit during the internal investigation that resulted when I filed the lawsuit.
The truly sad thing was that less than one month after this incident, I was stopped again for the same thing, by different cops in the same spot and they told the same exact lies... we smell weed, get out. I was in a rental car which really sent them into full blown Miami Vice Mode...
Again, leaving the airport, still in uniform I had to endure the same thing as it all was played out in almost the same exact way.
When I contacted my lawyer the next day his exact words to me were "Your shitting me, right?"
The officer who started the second stop was fired for lying under oath during the deposition.
Its all just a huge nightmare, law enforcement has lost any and all credibility in my eyes...
8:}
AMEN!
When we were kids, they told us to respect the police; that they are here to help you.
I have NEVER seen the police help anyone in 50 years. I have never seem them protect anyone.
Generally speaking, they exist in my world to generate revenues for the towns and stand around when there is a fire. They do not “solve” crime, and they do not deter crime. They treat “civilians” (some with years more military experience, like they are idiots. They try to control situations that are not out of control.
The cops in MA are the true Massholes.
in MA the open container rule applies to the car. Kids in my town have been busted because they were driving their mother’s minivan with a bag of empties that we supposed to go back to the deposit store. Did not belong to the kid. They were in a bag that was clearly for disposal. There was not beer on the kids breath.
The kid got hauled in and the car was towed. Yes the charges were dropped, but the fees for the towing and the damage the tow truck did, and the scratches to the car in the impound lot were not covered.
MA cops suck.
And for those wondering: No, I havent been arrested, and my kids are clean. And yes, I have several friends that are police, FBI, and K9 State Police officers. And yes, they admit to being jerks when they work.
1. I think you meant to write either libertarians or liberaltarians. However, you botched it.
2. What has this got to do with medical marijuana? MA doesn't even have a medical marijuana program, you nimrod.
The voters of MA did, however, approve decriminalizing marijuana possession in 2008 by a 65%-35% margin, if I recall correctly.
WOW!
Wow! What do you think was motivating them?
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