Marijuana Smell Not Evidence of Crime

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The highest court in Massachusetts ruled today that the odor of burnt marijuana does not supply the police with reasonable suspicion to believe that a crime is being committed. In the case of Commonwealth v. Benjamin Cruz, the Mass. Supreme Judicial Court held that because possession of one ounce or less of marijuana is not a crime, the smell of burnt marijuana does not constitute suspicion of a criminal offense, which would justify ordering a person out of a motor vehicle.

In reaching this determination, the Mass. SJC noted that “When the people of this Commonwealth answered “yes” to Question 2 on the 2008 ballot,(18) the offense of possessing one ounce or less of marijuana changed from being a criminal to a civil offense.”  The people’s intent in answering Question 2 in the affirmative was clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction.

This case represents a major win for defense lawyers who will now be able to suppress evidence which police discovered based on the mere odor of marijuana. Prior to the release of this decision, that odor alone would allow the police to take investigative measures such as ordering individuals out of a motor vehicle. Now, “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.”

Being convicted of possession of marijuana and other drugs, as well as possession with intent to distribute or drug trafficking will trigger automatic license suspensions in Massachusetts.