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SJC Rules that Smell of Unburnt Marijuana is not Enough to Search People, Cars

tray-of-marijuana-1437843-mThis past week, in Commonwealth v. Overmyer and Commonwealth v. Craan, the Supreme Judicial Court ruled that the smell of unburnt marijuana alone is not enough to establish probable cause to search a car.

The facts of the cases are as follows: Overmyer was in a car accident in Pittsfield and police responded to the scene. Upon arrival, officers noticed “a very strong odor of unburnt marijuana.” Police asked Overmyer if there was marijuana in the car and he told them that there was a bag of marijuana in the glove compartment. There was no specific information indicating that the bag contained more than an ounce of marijuana. The police believed that Overmyer had more marijuana and proceeded to search his car. Officers found a backpack with marijuana in the back of the vehicle. As a result of the additional marijuana found in the backpack, the police charged Overmyer with possession with intent to distribute a class D substance (marijuana).

Craan was stopped in Dorchester in 2010 by Massachusetts State Police operating a sobriety checkpoint. The trooper involved in the stop smelled unburnt marijuana and asked Craan about it. Craan showed the trooper a bag of less than ounce of marijuana in the glove box. The trooper then ordered Craan out of the car and subsequently searched it. As a result of the search, the trooper located three Ecstasy pills and .38-caliber ammunition inside the car. Craan was charged with possession with intent to distribute a class D substance (marijuana), possession of a class B substance (ecstasy), and possession of ammunition. Both Overmyer and Craan filed motions to suppress, arguing that the smell of unburnt marijuana alone did not provide a sufficient basis for a search of their respective vehicles because possession of less than an ounce of marijuana is not a crime in Massachusetts, and there was no indication that either were in possession of a criminal amount of the drug.

In its decisions, the SJC noted that Massachusetts voters decriminalized an ounce or less of marijuana in 2008. The Court also cited to a 2011 decision, Commonwealth v. Cruz, in which it had previously held that the odor of burnt marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles in which people are traveling. In Cruz, the Court stated that it would be legally inconsistent to allow police to make warrantless searches after smelling burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere.”

In its rulings in Overmyer and Craan, the Court stated that it was extending the same reasoning to cases where the owner has not yet started smoking marijuana. The Court acknowledged that marijuana generates a pungent aroma, but agreed with the arguments made by the defendants’ attorneys, stating that the odor of unburnt marijuana by itself does not provide a police officer with enough information to determine whether a person has more than an ounce with them, and, since possession of an ounce or less of marijuana is not a crime, the smell alone is not sufficient to establish a legal basis to search for suspected criminal activity. The SJC specifically stated that “the 2008 initiative decriminalized possession of one ounce or less of marijuana under state law, and accordingly removed police authority to arrest individuals for civil violations.” The Court added that it had previously “held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant” and is now “hold[ing] that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile.”

The Court rejected the argument from police that law enforcement can use the smell of marijuana to stop someone because possession of marijuana is still illegal under federal law. The SJC stated that the “fact that such conduct is technically subject to a federal prohibition does not provide an independent justification for a warrantless search.”

Police have often used the smell of marijuana as a basis for a more extensive search. Now that the Overmyer and Craan cases have been decided, the police can no longer use the smell of burnt or unburnt marijuana alone as the basis to search people or vehicles. If you or a loved one was searched because the police claimed that they smelled burnt or unburnt marijuana, you will need a defense attorney to make sure that the police do not use illegally obtained evidence against you. Attorney Daniel Cappetta is an experienced attorney who will make sure that your rights are protected. Call him for a free consultation today.

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