Mass.: Marijuana Odor No Longer Probable Cause

Law enforcement officers in the state of Massachusetts can no longer use the odor of unburnt marijuana as an excuse to search a vehicle. Earlier this week, the Supreme Judicial Court handed down the verdict that pays respect to the state’s decriminalization laws by making it unlawful for police to bring into play the smell of raw marijuana when attempting to establish probable cause to conduct a search.

The latest judgment by the state’s highest court is a reverberation of a 2011 verdict, making it unlawful for police to use the odor of smoked marijuana in a vehicle or on the street as probable cause for a search. The decision, which found the smell of burnt marijuana was not a good enough reason to suspect a person was engaging in criminal activity, was largely based on the statewide voter approved referendum decriminalizing the possession of marijuana in small amounts.

The court decided it made sense to apply the same logic to raw cannabis, ruling that police cannot accurately detect whether or not a person is in possession of more than legal limit of one ounce of weed by just the scent of marijuana in the air.

“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,’’ wrote Justice Barbara Lenk on behalf of the court’s decision. “ We have held that the odor of burnt marijuana alone 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.’’

Surrounding this decision are two separate cases in which Massachusetts residents were searched and ultimately charged with a crime based on police reporting the smell of raw marijuana. The latest verdict upholds a lower court’s previous decision that a police officer’s nose alone could not establish a legal basis to conduct a search.

Law enforcement officials argued that the smell of marijuana should be considered probable cause because the substance is still illegal in the eyes of the federal government. The high court rejected their dispute by stating, “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search,’’ wrote Lenk.

It comes as no surprise that the high court’s recent decision is not sitting well with local police departments, who are still convinced that people who smoke marijuana are the bad guys. “Rulings like this do nothing but handcuff the good guys and free the ones that want to go out and commit crimes against us,” Bristol County Sheriff Thomas Hodgson told The Boston Herald. “It is becoming harder and harder for cops to do their jobs and easier for criminals to get the cover they need.”

Marijuana advocates are applauding the court’s verdict because they say police officers have often used the odor of marijuana as reason to harass citizens. “We’ve seen a lot of abuse by law enforcement officials who use (the odor of marijuana) as an excuse to unreasonably search people who are otherwise not exhibiting any signs of committing a crime.” said Erik Altieri, with NORML.