Under the Massachusetts marijuana decriminalization law, G. L. c. 94C, §§ 32L-32N, which took effect on December 4, 2008, possession of one ounce or less of marijuana is a civil, but not a criminal, violation. The Massachusetts marijuana decriminalization law has certainly influenced the constitutional parameters of police investigative practice. Two years ago in Commonwealth v. Cruz, 459 Mass. 459, 464, 472 (2011), Massachusetts’ highest appeals court (the “SJC”), casting aside numerous precedents decided under prior law, ruled that an odor of burnt marijuana no longer constitutes reasonable suspicion of criminal activity or probable cause without some additional fact or facts that establish a reasonable basis for the belief that more than one ounce of marijuana is in a person’s possession or in the location from which the odor emanates. In other words, police could no longer use “the smell of burnt marijuana” to justify further criminal investigation (e.g. ordering a person out of their car). Cases decided since Cruz have further extended its reasoning, in that possession of a small quantity of marijuana (one ounce or less), standing alone, will not support the search of a person, a backpack, or a vehicle for an additional quantity of marijuana or other evidence of criminal activity.
Now, in a 2014 decision, our Appeals Court has decided that “it is reasonable to conclude that an odor of unburnt marijuana, like an odor of burnt marijuana, standing alone, does not provide reasonable suspicion of criminal activity that would authorize the police to detain a person or issue an exit order, or probable cause to conduct a search.” Although the Court also noted, because of the facts of the case, that “[i]t is therefore unnecessary for us to decide whether the ‘overwhelming’ odor of unburnt marijuana alone provided probable cause to support the issuance of the search warrant.”, the Court’s willingness to extend prior rationale to the smell of “unburnt” marijuana as well is an important development.
The case is Commonwealth v. Fontaine and it can be found at the Social law Library at http://www.socialaw.com/slip.htm?cid=22547&sid=119.