According to an article in the MetroWest Daily News, an eighteen-year-old student at Westborough High School, was recently arrested for a number of drug related offenses, including possession with intent to distribute marijuana. A school administrator allegedly saw the defendant and two female students enter the defendant’s car, which was parked in the school parking lot, multiple times Wednesday morning. According to the article, the defendant and the two female students smelled like burnt marijuana when they re-entered the school. The administrator then contacted the police, who arrived and looked into the car from the outside. The police reportedly saw a marijuana grinder through the car’s window. Further, a police dog alerted to the presence of marijuana inside the car. The police then entered and searched the car. Officers found a scale, a bong, glass pipes, 4 grams of marijuana, and several empty bags. Bottles of vodka and tequila were also removed from the car. The defendant was subsequently charged with (1) possession of drugs within a school zone; (2) possession of alcoholic beverages on school property; (3) being a person under 21 transporting alcoholic beverages in a motor vehicle; and (4) possession of marijuana with intent to distribute.
Despite the observations made by the school administrator and the police, the defendant may well have a strong defense to at least some of these charges. First and foremost, he likely has a strong argument that the possession with intent to distribute charges should be dismissed. In April of this year, the Supreme Judicial Court explicitly stated in Commonwealth v. Jackson that sharing marijuana with friends is not a criminal offense in Massachusetts. The Court stated that social sharing of marijuana is akin to simple possession, and therefore does not constitute drug distribution. In the defendant’s case, there is no indication that he and the other two students were doing anything other than sharing the marijuana. In particular, they all entered the car together, and they all smelled like burnt marijuana when they returned to the school building. Although the police found a scale, which might indicate an intent to sell, there does not appear to be any other evidence of drug sales. To the contrary, the fact that there was a bong and glass pipes in the car seems to indicate that the marijuana in question was for personal use, as opposed to sale.
In addition to this argument, the defendant may also be able to argue that the police had no legal basis to search his car, and therefore that the evidence recovered as a result of the unlawful search should not be admitted against him. Under both federal and state law, the police are not allowed to use evidence against a defendant if the evidence was obtained after a violation of the defendant’s constitutional rights. In the defendant’s case, there is an argument that neither the school administrator nor the police made any observations that provided a legal basis to search the car.
As a preliminary matter, the Jackson decision stated that the social sharing of marijuana does not give the police justification to conduct a warrantless search. For the reasons stated above, the school administrator’s observations supports an argument that the defendant and the other two students were involved in social sharing and nothing more. Further, in Commonwealth v. Cruz, the Supreme Judicial Court stated that the smell of burnt marijuana alone, without some indication that there is a criminal amount present, is not sufficient to establish a basis to conduct a warrantless search. Likewise, the fact that a drug dog alerted to the presence of marijuana, without some indication that the dog had the ability to determine whether the amount was over an ounce, leaves the defendant with the argument that the dog’s alert is also not sufficient to establish a basis for a search. Lastly, although the possession of “drug paraphernalia” is illegal under G. L. C. 94C, § 32I, the defendant may successfully argue that possession of the grinder does not constitute criminal “drug paraphernalia” in light of the decriminalization of possession of less than an ounce of marijuana. If the defendant is ultimately able to convince the court that the police did not have a lawful basis to search the car, then the items recovered as a result of the search could not be used against him in court. If those items are deemed inadmissible, the Commonwealth would be left with virtually no evidence against the defendant.
The intersection of search and seizure law and the law decriminalizing less than an ounce of marijuana has already been the topic of many recent court decisions, and there are undoubtedly more issues to litigate. Attorney Daniel Cappetta is familiar with the decisions that have been issued thus far, and is committed to pursuing creative ways to defend his clients in light of this new law. If you are facing marijuana related charges, call him today for a free consultation.