Two years ago, the Massachusetts Supreme Judicial Court held that police may not search a vehicle based merely on the presence of the smell of marijuana. The holding in Massachusetts v. Cruz concerned a police officer who approached the car of driver Benjamin Cruz when he noticed Cruz smoking a small cigar. Once the officer smelled a “faint odor” of marijuana, Cruz was ordered out of the car, with an ensuing search revealing 4 grams of crack cocaine and resulting in an arrest for Cruz. The court held that the officer did not have a reasonable basis to order Cruz out of the car.
Years later, several decisions appear to suggest that the court has not backed down from the principles underlying the Cruz decision.
In a series of rulings decided last week, the Supreme Judicial Court clamped down on officers who have continued the practice of searching automobiles on the basis of smelling marijuana, despite the Cruz decision. Massachusetts v. Pacheco concerned a state trooper who spotted fogged windows in the parked car of Antonio L. Pacheco. He knocked on the window, forcing Pacheco to open it, at which point the whiff of marijuana was immediate.
The smell of marijuana smoke is not a valid justification for a police search.
The court held that the trooper did not have probable cause to search the vehicle based on smell alone, and the result of the search – a small bag of marijuana along with an unlicensed handgun – were products of an invalid search. The trooper’s reasoning – accepted by the lower courts – that Pacheco was passing around a marijuana joint, and was therefore guilty of criminal distribution, was also rejected by the high court.
Justice Fernande R.V. Duffly crafted the decision, writing that the smell of “freshly burnt marijuana” inside a vehicle did not constitute the “articulable facts supporting a belief that any occupant of the vehicle possessed a criminal amount of marijuana”. The decision was met favorably by the American Civil Liberties Union of Massachusetts. The ACLU filed briefs in the case on behalf of Pacheco.
The court’s decision sheds light on the trend of marijuana enforcement over the last five years. In 2008, a state initiative aimed at decriminalizing marijuana up to an ounce was passed overwhelmingly, with 62% of the vote. The ensuing penalty for such possession was a civil fine, rather than criminal enforcement. The lack of palpable criminal behavior stemming from a car that smelled like marijuana, therefore, was one of the key factors cited in the Cruz decision.
Last November, voters went one step further, supporting a measure to legalize marijuana for medical purposes. The fact that a marijuana odor in a person’s vehicle may not only suggest legal behavior, but also behavior in line with an individual’s medical treatment as counseled by his or her physician, is certain to have been a factor in Pacheco decision. While state law on marijuana possession keeps moving forward, it would be grounds for further legal obfuscation if the Supreme Judicial Court went backwards.
Yet, despite the Cruz decisions, Massachusetts police have clearly not heard the message. Whether Pacheco drives the point home is yet to be seen. If you believe you were stopped and searched by a police officer on unlawful grounds, contact a criminal defense attorney today.
