When Possessing Pot Is No Crime, Can the Smell of Marijuana Justify a Search?
Jacob Sullum|Nov. 27, 2013 6:07 pm
Two years ago, in Commonwealth v. Cruz, the Supreme Judicial Court of Massachusetts ruled that the odor of burning marijuana is not sufficient reason for a police officer to order a motorist out of his car. The court noted that under Question 2, an initiative that Massachusetts voters approved by a large margin in 2008, possessing up to an ounce of marijuana is a citable offense rather than a misdemeanor. "To order a passenger in a stopped vehicle to exit based merely on suspicion of an offense," the court ruled, "that offense must be criminal." Suffolk District Attorney dave Conley nevertheless is asking the court to uphold a car search triggered by the smell of marijuana. Among other things, he argues that such an odor counts as probable cause because possessing small amounts of cannabis remains a crime under federal law. In an amicus brief filed last Friday, the National Organization for the Reform of Marijuana Laws urges the court to reject that argument (citations omitted):
The appellant asks this Court to reverse its holdings in Cruz and its progeny by empowering state law enforcement to ignore the state decriminalization law and enforce instead federal prohibition law. The appellant would enable federal law to justify police searches otherwise illegal under state law....
Enforcing federal prohibition—against the will of a compelling majority of state's voter rejection of that policy in adopting decriminalization by initiative—violates fundamental principles of federalism and the state constitution's separation of powers....
State law enforcement derives its authority from state law, its constitution and statutes; the power of local police to detain and arrest, within the outer limits of federal Constitutional civil rights law, is derived from and determined by state law.
Local police cannot evade state law constraints in state court prosecutions by wishing they were federal deputies and pretending their arrestees can be brought to federal courthouses. Allowing state law enforcement to disregard state law, by preferring federal policies rejected by popular initiative and this Court, eviscerates the sovereignty of the people and federalism's protection of state sovereignty.
The case involves a motorist, Anthony Craan, who was pulled over in June 2010 by state police at a sobriety checkpoint. Trooper Scott Irish claimed to smell "the strong odor of fresh, unburned marijuana coming from the passenger compartment." After Irish mentioned this, Craan admitted that he had a plastic bag of pot in his glove compartment, which led to a car search that revealed additional marijuana, MDMA pills, and four loose rounds of ammunition. But at the point when Irish decided to search the car, all he knew was that Craan possessed less than an ounce of marijuana, which in itself is not a crime under Massachusetts law.
In addition to seeking refuge in federal law, the prosecutors argue that Irish had probable cause to charge Craan, who admitted that he and his passenger had recently smoked marijuana, with driving under the influence, in which case going through the car would have been justified as a search incident to an arrest. The government also argues that the presence of a little marijuana raises the possibility of more—perhaps enough to count as a misdemeanor under state law. That last argument, like the one based on the federal Controlled Substances Act, would justify a car search whenever a cop smells (or claims to smell) pot, even though possessing up to an ounce has been decriminalized in Massachusetts. He would not even need a dog.
-via Boston Magazine
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