Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston’s Supreme Judicial Court Rules Against Law Enforcement In MA Drug Search And Seizure Case

This has been an upsetting week for Massachusetts law enforcement. Yesterday, we discussed how Boston’s prosecuting attorneys are upset with a particular judge. Now, law enforcement in general is upset with a ruling handed down by the Massachusetts Supreme Judicial Court.

The ruling primarily effects the Massachusetts search and seizure laws.

As we have discussed in the past, marijuana has been decriminalized. In other words, it is no longer a crime to possess a small amount of it. As also discussed, this meant that, in order to make an arrest regarding pot, the Commonwealth had to allege intent to sell the drug in order to make a “collar”. Massachusetts drug attorneys have gotten used to that.

Now, however, the Court has gone further.

In the past, if they stopped a vehicle on a MA criminal investigation, and they smelled marijuana, police treated it as probable cause to believe that a crime was being committed. They would then pull people out of the vehicle and, sometimes, search the vehicle. While the resulting charge might not be possession of the marijuana, the police would sometimes find something else to prosecute.

They can no longer do that on the basis of the marijuana odor alone. This is because while the smell might indicate smoking or possessing the marijuana, smoking or possessing it is no longer a crime. Thus, no probable cause.

According to the Court, “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”.

The justices further ruled that voters, in passing the 2008 ballot question, intended that possessing an ounce or less of marijuana “should not be considered a serious infraction worthy of criminal sanction.”

Attorney Sam’s Take On Marijuana, Probable Cause And MA OUI Cases

As a Boston criminal defense attorney, I cannot help but see this ruling as a good thing.

I understand that law enforcement feels that this hinders their ability to “fight crime”. It does, really. However, so does every other law that prohibits them to simply pull over a motor vehicle or stop a random person on the street simply on a whim.

The Commonwealth likes to pretend that it is a fair playing field when it comes to “Justice” and it is certainly not. Perhaps when abuses of discretion do not happen out of either over-zealousness or fear of bad press, we can watch the police alittle less closely
That day is not here yet and it does not appear to be getting any closer. This is especially true, as many blogs have suggested, when it comes to kids.

And, yes, many kids smoke pot. A good thing? Frankly…no. However, is it a reason to ruin their lives? Again, I would say “no“.

Worth particular mention, however, is one of the arguments against the ruling that almost had me sucked in as well. Driving while under the influence…of anything…is still illegal. So, doesn’t the odor of marijuana give probable cause to believe that the driver is driving under the influence of pot?

Actually, again, no. Any more than the odor of alcohol does.

It is not illegal to have a drink and drive…if you are not under the influence. The same, I suppose, is true with smoking pot.

“But people get pulled over and arrested for Boston drunk driving every day!”

Yes, but more is usually reported by the arresting officer, such as slurred speech, bloodshot eyes, etc. Further, in order to have pulled the car over in the first place, the police are supposed to have noticed erratic driving at least.

Given the new ruling, one would expect that police would have to see that same erratic driving if they suspect that the driver is under the influence of marijuana. When the car is pulled over, they will simply have to observe more than the odor.

Don’t worry. In most cases, they will.

One way or another.

If you are facing criminal charges and would like to consult me, please free to call me at 617-492-3000 to arrange a free initial consultation..

To view the article upon which this blog is based, please go to http://articles.boston.com/2011-04-20/news/29451912_1_marijuana-policy-possession-of-small-amounts-odor and http://www.enterprisenews.com/topstories/x396828923/Court-limits-vehicle-searches-for-pot-South-Shore-law-enforcement-officials-frustrated

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