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.

MASSACHUSETTS SUPREME JUDICIAL COURT SUPPRESSES SEARCH WARRANT OF PREMISES FOR SUSPECTED MARIJUANA CULTIVATION

When it comes to marijuana, law enforcement has consistently used its odor, unburnt and burnt, as probable cause to search suspected criminals. However, since the possession of up to one ounce of marijuana was decriminalized in 2008, the criminal justice system has had to take a new look at what set of facts Police may use to justify a search and seizure. Whereas before decriminalization, law enforcement could justify a search of a vehicle based solely on the odor of marijuana. Today, if the police pull your vehicle over and smell marijuana, they cannot detain you unless they believe an actual crime is taking place. After 2008, law enforcement could no longer make the inference that marijuana equals criminal activity.

With the addition of the medical marijuana law, passed in 2012, police are now required to show even more to justify a warrantless search. A new case has recently come down that places more requirements for police to search a residence believed to be cultivating marijuana. In Commonwealth v. Canning, Josiah H. Canning was charged with possession with the intent to distribute marijuana, G. L. c. 94C, § 32C (a); distribution of marijuana, G. L. c. 94C, § 32C (a); and conspiracy to violate the drug laws, G. L. c. 94C, § 40. The charges came after Detective Christopher Kent from the Yarmouth Police Department obtained a warrant to search Mr. Canning’s residence in Brewster. Detective Kent had learned from a confidential informant, Mr. Canning and another individual were involved in an indoor “marijuana grow” operation located at the property. The confidential informant also told Detective Kent that he observed the defendant and another man purchase a large amount of indoor marijuana grow materials from a hydroponic shop in Foxborough and then load the materials into an automobile registered to the Mr. Canning. Detective Kent had also made observations, while surveilling the property, of an aluminum hose coming out of the window of the house, heard the sound of fans, and, using night vision goggles, saw light emanating from another window. He also smelled a strong odor of “freshly cultivated” marijuana emanating from the house. Based on that information Detective Kent obtained and executed a search warrant for Mr. Canning’s residence. Mr. Canning was found with seventy marijuana plants, eleven fluorescent industrial lights, an aluminum flexible hose, a digital scale, approximately 1.2 pounds of marijuana, and $2,697. He was then placed under arrest.

The court in Canning concluded that the search warrant affidavit “established probable cause that marijuana was being cultivated indoors at the defendant’s home,” but in light of the Medical Marijuana law, the affidavit failed to establish probable cause that the cultivation was for more than a sixty-day supply of marijuana or that the defendant was not authorized to grow that amount — and therefore that the cultivation was illegal.

Basically the Court ruled that the medical marijuana law, in effect, requires police to check whether a person is authorized to cultivate marijuana before they may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana. This was difficult for the police in 2013 as there was no way for the police to check, outside of knocking on Mr. Canning’s door and asking, whether he was authorized to cultivate marijuana. At the time, the Department of Health did not have a system up and running that allowed law enforcement to verify a cardholder’s registration. This was one of the arguments set forth in an amicus brief by the Massachusetts Chiefs of Police Associate, Inc., a strong opponent of the decriminalization and medical use of marijuana.

While the past sevens years have been quite bumpy for law enforcement and the courts since the decriminalization of possession of small quantities of the marijuana and the medical marijuana movement, regulators are finally setting the rules in place that will help to clear up the confusion as to what rights medical marijuana uses have in Massachusetts. The Department of Health is currently updating their system in an effort to regulate the marijuana dispensary business in a similar manner as they do with pharmacies like CVS.

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