Mass. High Court Shows Signs of Marijuana Leniency

On April 5, 2013, the Massachusetts Supreme Judicial Court, the highest court in the Commonwealth, came down with four major cases involving the use, possession, distribution, and search of marijuana in vehicles.  Three out of the four cases were decided in favor of the defendants and against the government.

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

"Please step out of the car, ma'am..."

"Please step out of the car, ma'am": words that nobody likes to hear from a police officer.  At this point of a traffic stop many legal questions have already been raised.  Was the basis of the stop constitutional? Should the officer have given the driver (or passengers) their Miranda rights? Was the order to exit the vehicle lawful?  This post will focus on when an exit order from a vehicle is lawful or unlawful.

Under what conditions may an officer ask the occupants of a vehicle to exit?  Under the Fourth Amendment to the U.S. Constitution, officers are given wide latitude to order occupants out of a car, even as a matter of course.  See Pennsylvania v. Mimms, 434 U.S. 106, 109-10 (1977); Maryland v. Wilson, 519 U.S. 408, 412 (1997).  The officer may search the interior of the vehicle for weapons once the occupants are outside of the vehicle.

However, Article 14 of the Massachusetts Declaration of Rights constrains the officer's ability to give an exit order much more than the Fourth Amendment.  The reason for the initial stop of vehicle dictates when an officer may give the exit order.  If the initial stop was simply for a traffic violation, officers in Massachusetts may not order occupants out of a vehicle unless there is reasonable apprehension of danger to the officer or others.  See Commonwealth v. Bostock, 450 Mass. 616, 620 (2008).  The standard is different if the vehicle was initially stopped because the officer suspected criminal activity or if reasonable suspicion of criminal activity arises after the initial stop.  In such circumstances the officer may give an exit order to investigate into the suspected criminal activity.  See Commonwealth v. Blake, 23 Mass. App. Ct. 456, 460 (1987).  However, the investigation can only go so far as is proportional to the suspected criminal activity. See Commonwealth v. Williams, 422 Mass. 111, 116 (1996).

For example, if initially pulled over for suspicion of driving under the influence of alcohol, officers may be violating the occupants constitutional rights if they search the vehicle for weapons.  This assumes no other facts arise to give officers the suspicion that there may be a weapon..  This example is very narrow and only used as an illustration. Any other facts added to it may give the officers reason to search for weapons.  Consulting a criminal defense attorney may be helpful in determining if your constitutional rights have been violated.

Of course a multitude of other issues arise during and after a traffic stop in addition to whether an exit order was lawful.  Other issues may include "threshold inquiries" (Terry v. Ohio, 392 U.S. 1 (1968)), pat frisks, searches of the vehicle, inevitable discovery of contraband or other items, etc. Every vehicle stop should be examined thoroughly to determine if the officers violated certain constitutional rights.

- Attorney Geoffrey Farrington
(413) 283-6455
www.Bohnet-Romani.com

Starting a Business in Massachusetts

If you are thinking of starting a business in Massachusetts there are a few simple steps you should take to protect yourself and your company.  First and foremost, decide on the proper business entity to start your business. Massachusetts has a few options which include, but are not limited to, the sole proprietorship, limited liability company, partnership, and full-blow corporation. Even if you think you have a "simple" business (you are the only employee and you work out of your house), choosing the proper business entity could protect you from liability.

Employees add another level of consideration when choosing a business form. Through the doctrine of respondeat superior, an employer is liable for the actions of their employees (with limited exceptions). Additionally, employers can even be held liable for actions of independent contractors in certain situations.

The type of business entity you select will have tax consequences.  Many times it is most advantageous to plan the form of your business around tax considerations. You can greatly reduce your tax burden by selecting the proper business form.

Other considerations when starting a business in Massachusetts are whether you are required to have any permits or licenses and how you can get a bank loan to get your business jump started.  Massachusetts has many different permits and licenses that certain businesses are required to hold.  Keeping your permits and licenses up-to-date should be a part of any business' long-term plan.  Additionally, many banks are willing to provide loans to start-ups if they present themselves correctly.  Part of your presentation to a bank or other investors should include a sound legal platform.

Here is a great link to resources that the Commonwealth has put together for start-ups in Massachusetts.

If you have any questions about starting a business in Massachusetts, do not hesitate to contact an attorney at Bohnet and Romani, P.A. www.Bohnet-Romani.com

Nothing in this blog constitutes legal or tax advice. Do not rely on any representations made in this blog before consulting a qualified attorney.

By: Attorney Geoffrey Farrington

VALOR Act Helps Massachusetts Veterans Who Are Accused of Crimes

Veterans of our nation's armed services may be eligible for a special program designed to help them through the court system should they find themselves accused of committing a crime.  The law is called "An Act Relative to Veterans' Access, Livelihood, Opportunity, and Resources," also known as the VALOR Act. The purpose of the Valor Act is to provide veterans, who have been honorably discharged from any branch of the United States Armed Forces, with an evaluation given by the United States Department of Veterans Affairs or the Massachusetts Department of Veterans Services, to see if they are eligible to go into a diversion program, instead of going into the traditional justice system.  The act actually provides for many more benefits to veterans than just the criminal diversion program.

The diversion program provides veterans with a chance rehabilitate and improve their mental health by being placed into a program that is specialized to their needs.  Each participant will has an individualized treatment plan, in which they must follow exactly, to stay in the program. The participants  regularly meet with their case manager to be evaluated on their progress. The participants must adhere to all of the conditions of the Veterans Court Diversion Program, to remain in the program. The Valor Act provides a second chance for veterans who have had no prior convictions or trouble with the law (with the exception of traffic violations), so that they will be able to better function in society. Upon completion of this program or community service, the criminal case will be dismissed and the veterans’ record will remain clean.

This is a great program for those veterans who qualify, although not all veterans are eligible for the program and each case must be examined before the diversion program can be made an option.  The main theory behind the program is that veterans, who have become emotionally/mentally scarred as a result of service in the military, should be treated differently when they are accused of a crime.

There are time limits for trying to get into the diversion program after arrest.  Currently, there is only one special Veteran's Treatment Court in Norfolk County, but more courts are planned to open throughout Massachusetts.  However, a Veteran's Treatment Court in a specific county is not necessary to take advantage of the program.

Please feel free to contact one of the attorneys at Bohnet & Romani, P.A. if you should have any questions about this special program for veterans. (413) 283-6455 www.Bohnet-Romani.com

This article was prepared with the assistance of Amanda Scungio.

Probate of Estates in Massachusetts

The probate of an estate occurs when someone dies and their assets are distributed according to a will or according to certain default laws if the person dies without a will (called intestate).  The other purpose of probate is to make sure all creditors claims against the deceased person are properly resolved.  Additionally, the probate case gives others the possibility to petition the court to distribute all or part of the estate to them if they can prove certain elements under the law.

Recently a new series of laws went into effect in Massachusetts called the Uniform Probate Code.  These laws drastically updated and overhauled the States existing probate laws. Here is a link to the Trail Courts' website with some great information about probating an estate and other helpful information. Since the laws are relatively new to Massachusetts, courts have not rendered decisions interpreting many important aspect of the new Probate Code.

Protecting a loved ones estate is an important goal for many and it is a fiduciary responsibility for some. Making sure the deceased last wishes are carried out properly is the responsibility of the person in charge of the estate.  Alternatively, sometimes what appears to be a legitimate will or gift may not be legally binding.  There are also ways to plan an estate so that it does not need to go through probate court. If you have any questions regarding wills or the probate of an estate in Massachusetts, contact of the attorneys at Bohnet & Romani, P.A. www.Bohnet-Romani.com.

The Use of Drug-Sniffing Dogs During Traffic Stops

The United States Supreme Court handed down an opinion yesterday that gives more power to the dogs--police drug-sniffing dogs that is.  The case is entitled Florida v. Harris.  The Court ruled that when a police dog shows signs that they have picked up an odor for drugs, officers may search a vehicle.  Even without any other indication of criminal activity, other than the dog's sniff, police may search a vehicle for drugs. The Court's unanimous decision reduces a person's reasonable expectation of privacy in their motor vehicle.

The case revolved a drug-sniffing police dog named Aldo from Florida.  When officers stopped a vehicle for a traffic violation they had Aldo sniff around the perimeter of the vehicle for the odor of drugs.  When Aldo indicated that he had smelled something suspicious in the driver's side door, officers searched the vehicle to discover drug making equipment. The Court ruled that other courts must use a common-sense approach to see if the use of a drug-sniffing dog is reasonable.  Most relevant, is to see if the dog has been trained to do what the police use it for. This, of course, does not take into account how well the dog performed during its training or if it continues to have regular training. Also, what if an officer ques the dog to make a false indication?  The Court did not reach the question in its opinion.

Here is a link to the opinion.

The above summary is only the tip of the iceberg when it comes to search and seizure law.  There are many more areas for a lawyer to examine when challenging the sufficiency of a traffic stop or a motor vehicle search.  Massachusetts law allows more liberty, as compared to the U.S. Constitution or other states, when it comes to a person's reasonable expectation of privacy.  Nonetheless, Floria v. Harris is now legal precedent.

www.Bohnet-Romani.com

Palmer Casino Public Forum

Mohegan Sun casino has scheduled a public forum to be held in Palmer, Massachusetts in order to discuss various aspects of the proposed casino and address public concerns.  The public forum will be held on March 4, 2013 at 7 p.m. The location of the meeting has yet to be determined.  The Republican newspaper recently ran a story about the meeting.

For those of you interested in Massachusetts gaming laws, check out this page from the Massachusetts Trial Court Library.

From property rights to increased traffic, there many areas were citizens have concerns about a casino coming to Palmer.  The upcoming public forum may address some of your concerns.  If you feel your legal rights may be affected by a casino coming to Palmer, Massachusetts, do not hesitate to contact one of the lawyers at Bohnet & Romani, P.A.  Since we are a law office in Palmer, Massachusetts, we have a distinctive perspective on the casino issue. (413) 283-6455 www.Bohnet-Romani.com