Remember: possession of one ounce or less of marijuana is not a criminal offense in Massachusetts. It is, however, a civil infraction. Mass. General Laws chapter 94C, section 32L.
Keep reading for a short break down of the cases in plain English.
(Credit: drugpolicy.org)
Growing Marijuana Without a Permit is Still NOT Legal in MA
The first case up was Commonwealth v. Palmer. Here, Kenneth Palmer was charged with cultivation of marijuana after police legally entered his home and found him growing marijuana plants, even though the amount recovered in his home was less than one ounce. The Court considered what effect, if any, the decriminalization of one ounce or less of marijuana had on the offense of cultivation, where the amount cultivated was less than one ounce.
The Court reasoned that since the decriminalization law specifically referenced simple possession of marijuana only, and no other provisions, such as cultivation, then the law was not intended to decriminalize any offense other than simple possession of one ounce or less of marijuana. So, for now, it looks like courts will not be throwing out cases just because the amount of marijuana grown is less than one ounce.
Smoking Marijuana in a Group is NOT "Distribution"
The next case was Commonwealth v. Jackson. The Defendant, Kiiyan Jackson, was attending Boston's annual "Hempfest," a festival to promote the legalization of marijuana. As Jackson was sitting on a park bench smoking a marijuana cigarette with his two friends, members of the Boston Police seized the cigarette and intended to issue the men civil citations for possession of one ounce or less of marijuana. However, as Jackson stood up the police saw a plastic bag coming out of his pocket. The officer pulled the bag from Jackson's pocket and found that it contained what appeared to be marijuana. Officers then searched Jackson's backpack, which smelled like marijuana, and found several small plastic bags and less than an ounce of marijuana.
The Court considered two questions: 1) whether the social sharing of a marijuana cigarette constituted "distribution" and 2) whether such sharing gave officers reason the search the backpack. The Court explained "that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution." The Court concluded that socially sharing a marijuana cigarette does not mean a person can be charged with "distribution."
Additionally, the Court concluded that the officer's observation of Jackson with the marijuana cigarette did not give them probable cause to search his backpack.
After reading this case, I consider the real world application: officers probably cannot search a person if all they have done is smoke a marijuana cigarette in the officer's presence. This obviously is not legal advice, but it appears to be what the Court is getting at in their decision.
Search of Car for More Marijuana is NOT Permissible
Commonwealth v. Daniel was the next case decided by the Court. The Defendant, Clint Daniel, was the passenger in a vehicle that was pulled over for a non-functioning headlight and making a turn without using a directional signal. When the Boston Police Officer approached the vehicle, he smelled burnt marijuana and witnessed Daniel with his head and shoulders rocking back and forth. After the officer asked the occupants in the car whether they had marijuana, the driver of the car produced two small bags of marijuana. The officer orders the occupants out of the vehicle. The officer then searched the glove box of the vehicle to discover an illegal firearm.
The question the Court considered was whether the search of the vehicle was permissible. The Court noted, once again, that one ounce or less of marijuana was not a criminal offense. The amount of marijuana offered by the driver was less than an ounce. Therefore, the Court concluded that the officer did not have probable cause to believe that more marijuana (or other contraband) was in the vehicle and, thus, the search of the vehicle was impermissible. As such, the discovery of the firearm was improper and that evidence was thrown out.
The main point to take from this case is just because a person shows an officer less than an ounce of marijuana, doesn't give that officer probable cause to search a vehicle for more contraband. Of course, the introduction of other facts may give officers probable to search for more.
The final case decided by the Court, Commonwealth v. Pacheco, falls under the same category as the Daniel case discussed above. The Defendant, Antonio Pacheo, was a passenger in a car that was illegally at the Heritage State Park in Lynn after hours. The State Trooper noticed that the car was parked in a handicap spot without proper registration. Also, the Trooper noticed the windows of the vehicle were completely fogged up.
Upon the Trooper approaching the car on foot, he smelled a strong odor of freshly burnt marijuana. The five occupants in the car admitted to smoking marijuana together in the car. One of the occupants informed the Trooper that there was a small amount of marijuana still in the car on the floor. The occupants were ordered out of the car and were searched for weapons and contraband. Nothing was found on the occupants. The Trooper did confirm the marijuana on the floor of the car in a clear plastic bag.
The Trooper then proceeded to search the trunk of the vehicle for evidence of more contraband. In the trunk was a backpack containing a gun. Pacheo admitted that the marijuana and gun was his and that he did not have the proper license to have the gun.
The Court examined whether the Trooper had probable cause to support the search of the trunk for more contraband after observing signs of recent marijuana use and the presence of less than an ounce of marijuana. As in the Daniel case, above, the Court concluded that the Trooper did not have probable cause to search the trunk and the evidence of the gun was thrown out. Also, since the admission by Pacheco that he owned the gun and the marijuana were a result of the impermissible search of the trunk, those statements were also thrown out.
Final Thoughts
The four recent Massachusetts Court decisions above mostly indicate the Court is becoming more lenient with its marijuana cases in light of the decriminalization of an ounce or less. In light of these new Court decisions, future and pending cases that involve the possession of marijuana and the search of a vehicle as a result of possession should be examined to determine if the rights of the defendant were violated.
Here is a link for a little more information about Massachusetts' marijuana laws.
By: Attorney Geoffrey R. Farrington
www.Bohnet-Romani.com
Twitter: @FarringtonLAW
