The Kickham Comment - Boston Criminal Attorney Blog
This past week saw a major decision announced by the Massachusetts Supreme Judicial Court (SJC,) on the subject of the presumption of criminal conduct being associated with the use of marijuana. The ruling, Commonwealth v. Cruz, Mass. SJC No. 10738, overturns precedent, establishes a major new benchmark in this area of law, and represents a major victory for reasonable and logic-minded thinking toward Massachusetts marijuana laws. Given the importance of this ruling, I’m going to devote two parts to this post. Part Two will be published in a couple of days.
The ruling deals specifically, and for the time being only, with police officers’ authority to order the occupants of a parked vehicle to exit the vehicle, based only on the smell of marijuana smoke. At this time, the ruling appears to apply solely to circumstances where a vehicle is stationary, not moving, but the central point of the decision is that police and prosecutors can no longer presume that a person is engaged in criminal conduct, solely because officers may detect the order of marijuana in the air or on the person of a driver or occupant. The defeat of that presumption is an extremely important legal point in the development of sound and rational marijuana policy. These policies have been advocated by respected organizations such as Law Enforcement Against Prohibition (LEAP,) and others I will discuss in Part Two of this post, for years.
Some important background of the case that produced this key ruling: In the summer of 2009, two Boston police officers were patrolling in an unmarked car in the Jamaica Plain area. The officers pulled up to a car parked beside a fire hydrant; inside the car were a driver and a passenger. The officers testified that they noticed the driver in the car light a small cigar that they claimed is commonly used to mask the odor of marijuana. Approaching the vehicle, the officers claimed they smelled a “faint odor” of marijuana, and one of the officers asked the driver if he had been smoking. The driver answered that he had smoked some pot “earlier in the day.” Importantly, neither officer saw anything illegal in the vehicle, but claimed that the driver and the passenger both seemed nervous. The officers then radioed for backup and ordered the men out of the car, based solely on “the smell of marijuana and the way they were acting.” Forced out of their car, one of the officers then asked the passenger, (a Benjamin Cruz, then 19,) whether he “had anything on his person.” At that point Cruz responded that he had “a little rock for myself,” which turned out to be 4 grams of crack cocaine. Cruz was arrested.
A Massachusetts District Court judge ruled that the officers did not have appropriate legal grounds to order the passenger out of the car, based solely on the smell of marijuana, and nothing else. The Suffolk County District Attorney’s Office had argued that the smell of burnt marijuana itself was evidence of criminal conduct, and thus justified the officers’ exit order and any evidence that was discovered thereafter. Upon review, the SJC soundly rejected this argument. In a 5-1 ruling authored by Chief Justice Roderick Ireland, the court held that “Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.” (Underline emphasis added.) The justices cited three separate scenarios in which police officers could legally order a passenger to exit a validly stopped vehicle: 1) If the officers reasonably feel that they could be in danger; 2) If officers have a reasonable suspicion that an occupant of the vehicle is engaged in criminal activity; or 3) If they decide to search the vehicle. Affirming the District Court’s ruling, the SJC held that the officers in the case did not have legal grounds to order the passenger out of the car, because they “could not have reasonably feared for their safety considering the stop occurred during daylight, the defendant made no furtive or threatening movements, and the defendant was not known to the officers from previous arrests.”
The court then turned to the 2008 state ballot law passed by voters in 2008, which resoundingly decriminalized personal possession of one ounce or less of marijuana. With this landmark ruling, the justices answered a lingering question regarding police conduct since the ballot initiative became law. In very pointed language, Chief Justice Ireland wrote that voters, in passing the 2008 ballot question, clearly intended that possession of an ounce or less of marijuana “should not be considered a serious infraction worthy of criminal sanction.” The justices noted that “There are no facts in the record to support a reasonable suspicion that the defendant possessed more than one ounce of marijuana,” they ruled. “We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.” Quite noticeably, the court went on to emphasize that “Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public, nor in accord with the plain language of the statute,” Roderick wrote. (Underline empasis added.)
I’ll publish Part Two of this Post, by Wednesday April 27 2011.