Massachusetts: Smell Of Marijuana Cannot Justify Search of Car


By Steve Elliott
Hemp News

Police officers in Massachusetts can no longer rely on the odor of unburnt marijuana as probable cause to justify a vehicle search, the state's Supreme Judicial Court unanimously ruled on Wednesday -- even if the smell is "strong" or "very strong," the justices said.

The court had already ruled in the Commonwealth v. Cruz decision in 2011 that the smell of burnt marijuana was not, in itself, sufficient evidence to stop pedestrians or search vehicles, reports John R. Ellement at The Boston Globe. The court said in that ruling that it would be "legally inconsistent" to allow the cops the make warrantless searches after they smell burned marijuana, when citizens had decided through a statewide referendum that law enforcement should "focus their attention elsewhere."

The court on Wednesday said it is now extending that same reasoning to cases where the owner has not yet started smoking the marijuana. The justices acknowledged that cannabis has a pungent aroma, but said that odor, by itself, does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime in Massachusetts, where voters chose to decriminalize pot in 2008.

"The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.

"We have held that the odor of burnt marijuana cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile," Lenk wrote.

"In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine," the justices wrote, reports Eric Convey at Boston Business Journal./

The court established new ruling, on the odor of unburnt marijuana, in the case of Matthew W. Overmyer, who got arrested in Pittsfield while the cops were investigating a car accident. Responding officers noticed that Overmyer carried "a very strong odor of unburnt marijuana." Police found a bag of marijuana in the glovebox of Overmyer's car, then a backpack holding more. They charged him with possession of marijuana with intent to distribute.

The court ruled police could not use the smell alone to arrest Overmyer, but might have had other legally approved reasons for searching his vehicle. They ordered the case back to district court for more proceedings to decide if the presence of marijuana in the glovebox of the car justified a more extensive search.

The court rejected the argument from police that law enforcement can use the smell of marijuana to stop someone because possession of marijuana is still illegal under federal law.

"The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote. “Where the 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations ... it also must be read as curtailing police authority to enforce the Federal prohibition of possession of small amounts of marijuana.”

Graphic: Burrows, Weiss, Mintz & Lippiello LLP