Law enforcement operating in medical marijuana states could be forced to dig deeper than just evidence of a home grow operation to establish probable cause for a search warrant.
Recently, the Supreme Judicial Court of Massachusetts determined that in order for police to obtain a warrant to search a residence for illegal marijuana possession or cultivation, they must first be able to prove that the occupants of the dwelling are not properly registered to engage in such activities.
The latest judgment by the state’s highest court, making it unlawful for police in medical marijuana states to use evidence of a home grow as the sole basis for obtaining a search warrant, is in response to a 2013 case in which the defendant Josiah H. Canning was busted for illegally cultivating approximately 70 plants inside his home. The ruling found that while law enforcement may have previously used certain criteria as a means for establishing probable cause, the state’s newfound medical marijuana laws now discount these variables as grounds for suspected criminal activity.
Therefore, the judge agreed to the defense’s motion to suppress the evidence in this case, stating that in order for police to apply for a search warrant, “they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance.”
During the investigation, law enforcement collected several pieces of evidence, which have become common red flag for narcotics agents attempting to bust suspected dope dealers. They witnessed Canning bringing home supplies from a hydroponic grow store. Night vision goggles revealed that his apartment was rigged with lighting. They claimed to smell the herb permeating from the house. And, last but not least, they had a confidential informant who confirmed that Canning was, in fact, growing marijuana.
Unfortunately for the prosecution, as Massachusetts attorney Leonardo Angiulo pointed out in an article for Worcester.com, police had everything they needed, with the exception of a key piece of evidence—proof that the grow operation was not being used by a medical marijuana patient.
“Going forward,” Angiulo explained, “this case seems to indicate that law enforcement need to show in search warrant applications that the issue has been investigated and provide evidence that no license authorizes the plants.”
Massachusetts’s voters approved a ballot initiative in 2012 that legalized the cultivation and distribution of medical marijuana. Still, the Commonwealth attempted to argue that probable cause was established because “all-or-any cultivation remains illegal even under the act,” as far as they are concerned.
Fortunately, the court disagreed with this stance, stating that marijuana cultivation is permitted in the Commonwealth, as long as the person or entity is properly registered to do so and remains in compliance with possession limits.
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