By on April 22, 2011

The highest court in Massachusetts ruled Tuesday that a police officer is not justified in stopping and searching an automobile merely because he smells the presence of marijuana. The Supreme Judicial Court took up the case of Benjamin Cruz to clarify the legal impact of a 2008 voter referendum that had decriminalized possession of less than one ounce of pot in the Bay State.

On June 24, 2009, Boston Police Officers Christopher Morgan and Richard Diaz were cruising the Hyde Square neighborhood in an unmarked Ford Crown Victoria in plain clothes. At around 5pm, the officers spotted Cruz in the passenger seat of a car parked on the side of the road in front of a fire hydrant. Cruz was smoking a small cigar with the windows rolled down. The officers got out of their car, approached Cruz and asked what he was doing. Officer Morgan claimed he smelled a “faint odor” of marijuana and Officer Diaz noted that Cruz appeared to be nervous. Cruz was ordered out of the car and searched. Police found 4 grams of crack cocaine and arrested Cruz.

A lower court judge ruled that the officers had no reasonable basis to order Cruz out of the car because there was no evidence that any crime had been committed. The supreme court majority agreed.

“Although we have held in the past that the odor of marijuana alone provides probable cause to believe criminal activity is underway, we now reconsider our jurisprudence in light of the change to our laws,” Chief Justice Roderick L. Ireland wrote. “Our analysis must give effect to the clear intent of the people of the Commonwealth in accord with article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.”

The high court argued that the officers could have ticketed the vehicle’s driver for parking by a hydrant, but no more. The court cited arguments made in the official voter guide to explain that voters intended to have police focus on more serious crimes than marijuana possession.

“By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes,” Ireland wrote. “Here, no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car. We conclude, therefore, that in this set of circumstances a magistrate would not, and could not, issue a search warrant. Because the standard for obtaining a search warrant to search the car could not be met, we conclude that it was unreasonable for the police to order the defendant out of the car in order to facilitate a warrantless search of the car for criminal contraband under the automobile exception.”

Source: Massachusetts v. Cruz (Massachusetts Supreme Judicial Court, 4/19/2011)]

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15 Comments on “Massachusetts Court: Marijuana Smell Not Enough for Traffic Stop...”

  • avatar
    Mark MacInnis

    There go the damned liberals again, pushing our country a little further along the road to hell in their perverse little handbasket.

    The guy had crack.  The presence of pot, though not a crime, would tend to lead most REASONABLE people (though apparently not the Mass Supreme Court…draw your own conclusions about their ability to reason….) to suspect that OTHER DRUGS might be present, in contravention of existing laws.

    The vote of the people of Massachusetts, it may be clearly inferred, was NOT to prevent officers from making drug busts for possession of contraban such as crack, coke, or meth, as those drugs (well, and pot, really, too…if you want to think about it…) are very deleterious to families, neighborhoods and therefore the state itself.

    Way to go, idiots of the Mass supreme court.  You just made it HARDER for law enforcement… which is a difficult enough job already….and easier for the crooks.  All of you from Massachusetts must be so proud of your little judgie wudgies. 

    ****Sigh**** the things you see when you are out without your gun.

    • 0 avatar

      I don’t view this as a “liberal” issue.  If the people of Mass deem possession of small amounts of pot not to be a crime, then it seems obvious that a faint odor of same is not probable cause for search & seizure.  Period.  Your second paragraph is how police states justify stripping people of their rights and liberties until they have none at all.
      I don’t view the particulars of this case any differently from a cop searching a car based on smelling a strong odor of curry and finding anthrax bombs or dead babies in the trunk.  Curry ain’t illegal, and one man’s odor is another’s delicious aroma.  The search would be illegal, regardless of what they found.

  • avatar

    So open container laws on booze up for review now?  Smell of alcohol from a car no longer PC?
    I love this debate over legalizing pot. Cigarettes are the True Evil and the goal is a smoke free society while a different kind of smoke is hailed as medicinal, almost essential to life. I didn’t realize there were no harmful health effects from smoking dope, imagine a consequence free substance.

    • 0 avatar
      A Caving Ape

      Dead horse? Car site? Ah screw it, here goes…

      Cigarettes are harmful to health because the average smoker smokes so many of them. Nobody (well, almost nobody) is smoking 20+ joints a day. On top of that a clear link between weed and lung cancer has not been established, though carcinogens have indeed been identified in the smoke. So while it’s not a consequence free substance, it’s not hypocritical to seek to make tobacco less legal while making marijuana more legal.

    • 0 avatar

      Pretty sure the faint odor of alcohol itself was never probable cause to search a car without consent.

      • 0 avatar

        Precisely. And if someone smokes in a car semi-regularly, it can permeate the interior somewhat even days or weeks later. (One of my friends, a Massachusetts resident who smokes at least weekly, has a marijuana-scented interior in his Saab.) That doesn’t mean any crime is currently being committed or any contraband currently exists; all it means is that somewhere in the past, someone likely committed a violation – not a crime, a violation – within the confines of the car. No different than beer cans in the bed of a pickup (where the owner was presumably sitting on the tailgate, shooting the shit with a Coors in hand) or even a scuff of different-coloured paint on the bumper (who knows, could’ve been a parking-lot hit-and-run). And certainly not the same as seeing a baggie in the driver’s pocket, say.

  • avatar

    If faint odor of pot isn’t probably cause then I guess alcohol odor is also out? As much as I am for legalization of pot, I don’t want people smoking it as they drive down the road – just as I don’t think you should be sipping a beer on the highway.

    • 0 avatar

      It’s a little more complicated than that. First of all the person who was allegedly smoking marijuana, who was the same person arrested for the possession of cocaine, was not the driver. So basically what we have is a situation in which the person behind the wheel of the car is not accused of anything except parking in front of a hydrant – there is no “operating a vehicle under the influence” here, and the police did not conduct any field sobriety tests suggesting that they had no reason to think the driver was intoxicated. The passenger in the car was ordered out of the car, and then questioned without being Mirandized, and under questioning admitted having cocaine in his pocket. And all of this took place because of a faint smell of burnt marijuana. What the court is saying here is that smelling like marijuana isn’t illegal under MA law, and therefore smelling like marijuana doesn’t constitute “probable cause” that criminal activity is taking place, which is the standard that allows for people to be ordered out of their cars and searched. They can ticket the driver for parking in front of a hydrant, but a violation (ticket) is not enough to allow a police officer to search a car or person.

  • avatar

    Look it up if you dare deny the Disgruntled One.
    Many “experts” proclaim that the TRUE “gateway drug” is the lowly legal-to-most tobacco dispensing device; usually in the form of the diminutive cigar oft-times referred to as the “cigarette.”
    The “ette” is akin to that creature the majorette though minorette may be a more apt term.
    Majorette; often an attractive younger than an Old Coot babe prancing in front of or alongside a marching band clad in apparel designed to maximize the display of her lusted-after-by-many female features.
    YOU PERVS!!!!!!!!!!!!!!!
    I agree.
    No… with the cigarette as the real gateway drug.
    Now… scoot.  Scurry off ye reprobates.
    Ye dullards.

  • avatar

    While I think our drug laws are idiotic, I have to side with the cops on this one.  If Cruz had been drinking a beer, they’d have every right to cite him, although I’m not sure if a search would be warranted.  Telling cops they have to ignore the obvious use of one intoxicating substance in a motor vehicle, while requiring them to persecute the use of another, seems stupidly inconsistent.  Of course, that’s SOP in the War Against Drugs, but usually the roles of weed and alcohol are reversed.

  • avatar

    So parking in front of a fire extinguisher and using narcotics in plain sight isn’t a judge’s idea of demonstrating impairment. The cop’s judgement was proven out by the perp being a crackhead. The judge should be drug tested, then dipped in hot tar, and coated in feathers…until dead.

    • 0 avatar

      Read it again. The guy wasn’t using narcotics. He had them in his possession but they weren’t the source of the faint odor.

    • 0 avatar

      Cruz hadn’t parked in front of a fire hydrant, nor was anyone using narcotics in plain sight. If you read the linked judgment, you’d find that Cruz wasn’t the driver, and that the “small cigar” he was smoking wasn’t marijuana.

  • avatar

    The issue of the smell of alcohol as compared to this decision is interesting, though I suppose they just breathalyze you (I think they get around that by saying you don’t have to blow-then taking your license as driving is a privilege not a right) and don’t necessarily search your car. Overall I think its good that the courts are being consistent with our laws.
    The fact is that a faint odor of marijuana could be consistent with a non-criminal amount of weed, and apparently the potential for a ‘civil’ amount of weed to be present does not pass the test of PC.  The people of Massachusetts voted on it, and if the cessation of arrests based on faint odors during traffic stops represents a serious blow to our war on drugs, then there are larger issues in play.

  • avatar

    The rules are there for a reason, folks, and they’re there to protect you and me. Anyone can be a potential criminal in the eyes of the police, and the rules prevent them from railroading anyone they want for anything they want. If you want a fair shake, you have to give it to everyone.

    I never agreed with the whole “driving is a privilege” nonsense. If it were, then the privilege could be denied for any reason, not just through due process. If you qualify for a license by being the appropriate age and having passed the tests, you cannot be denied. That is not a privilege, that is a right. You can have that right restricted for abusing it, just like any other. But that has to be done via due process, even if most traffic courts are a joke. If that makes it harder for cops to look for crack in someone’s pocket, tough noogies.

    Just like if you’re old enough to vote and register, you cannot be turned away. Recent laws barring convicted felons from voting are wrong as well. Taking away the right to own a gun from someone with a history of misusing weapons is one thing, taking away their citizenship is another.

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