Fourth Amendment

Marijuana Smell Doesn't Justify Car Searches, Says MA Court



Courts have "repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present." Following up on such precedent, a Maryland prosecutor writes for Police Chief magazine that "no law enforcement agency should forget the importance and accuracy of the human sense of smell." And just last month, Ybor City, Florida, cops followed up on their important and accurate honkers to dismantle a man's truck. They found nothing.

Now, at least, Massachusetts residents May gain a bit of a respite from searches by police wielding the Fourth Amendment-piercing power of their sense of smell.

In earlier coverage of the case of Commonwealth v. Anthony Craan, Jacob Sullum nicely summarized the details:

The case involves a motorist, Anthony Craan, who was pulled over in June 2010 by state police at a sobriety checkpoint. Trooper Scott Irish claimed to smell "the strong odor of fresh, unburned marijuana coming from the passenger compartment." After Irish mentioned this, Craan admitted that he had a plastic bag of pot in his glove compartment, which led to a car search that revealed additional marijuana, MDMA pills, and four loose rounds of ammunition. But at the point when Irish decided to search the car, all he knew was that Craan possessed less than an ounce of marijuana, which in itself is not a crime under Massachusetts law.

The Boston Municipal Court initially let the search stand, denying a motion to suppress. Supported by the National Organization for the Reform of Marijuana Laws, Craan appealed. And higher authorities came to a different conclusion.

In its Craan decision, the Bay State's Supreme Judicial Court built on its 2011 Commonwealth v. Cruz ruling, saying "in view of the decriminalization of marijuana occasioned by the 2008 initiative, 'the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity.'" (Sullum covered the Cruz ruling at the time.)

That's because the odor of marijuana doesn't indicate the quantity, and possession of less than an ounce is decriminalized in Massachusetts in the wake of the passage of Question 2.

The court adds:

Since the enactment of the 2008 initiative decriminalizing the possession of one ounce or less of marijuana, we have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant… As we hold in a companion to this case, neither can such probable cause rest solely on the odor of unburnt marijuana.

The one caution in this decision is that it rests, in part, on the state trooper's decision to let Craan continue on his way. "Far short of arresting the defendant for operating a motor vehicle while under the influence of marijuana, the trooper in fact released the defendant, allowing him to continue driving."

Police officers who really want a marijuana arrest to stick might find out a way to make it happen by insisting a defendant is impaired—a judgment that's often as subjective as the breeze-borne whiff of forbidden herbs.

But the smell of marijuana alone is no longer the basis for a warrantless car search in Massachusetts.

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  1. “Trooper Scott Irish”

    Who, ironically, isn’t Scots-Irish at all.

    Alternate Joke: “All right, boyo, fun’s over, ya shoulda stuck with whiskey.”

    1. For there’s a bloody law agin’
      The wearing smoking of the green.

      1. When the law can stop the blades of grass
        From growing as they grow,
        And when the leaves in summer time
        Their verdure dare not show…

  2. a Maryland prosecutor writes for Police Chief magazine that “no law enforcement agency should forget the importance and accuracy of the human sense of smell.”

    Immediately — test every LEO on its ability to smell marijuana. Double bind, with raw MJ, oregano, burned MJ, burned rope, the whole bit. Any failure — dismissal without pension.

      1. Better bind them, too.

        They’re SUPPOSED to be bound by chains of law, but in practice it’s not that tight.

        1. “You know what the chain of command is? It’s the chain I’m gonna beat you with if you don’t obey my commands.”

  3. I was once in a car with two of my friends. I was in the passenger seat. We had baked down with the windows rolled-up, headed out… and ended up getting pulled over.

    The cop comes up to the window, get my friend’s license, etc. The officer then says there is a strange odor coming from the car.

    Without even pausing, my friend says, “You mean marijuana?”

    My jaw hits the floor.

    Needless to say, that took the cop off his game.

    Long story short: After a search – where the officer found nothing since my other friend had jammed the weed down the front of his crotch – we were let go. In the end the cop said that it was too much paperwork hassle and his shift was almost over.

    1. Ladies and Gentlemen, The Criminal Justice System of a free Country.

    2. Ladies and Gentlemen, The Criminal Justice System of a free Country.

  4. Fucking finally.

  5. Until the doper kills someone this “judge” knows or loves…. Tragic. So if they can’t pass a standard roadside sobriety test???

    1. Yeah, dispense with the probable cause bullshit. What kind of country is this anyway. Roadside sobriety tests are never abused and are always accurate.

    2. No one can pass a field sobriety test. They are designed so you fail them. I’ve had cops testifying try to perform them for a jury who fail.

  6. From what I can tell, the decision is just based on Massachusetts law (statutory and common). Good strategy by the defendant; there is no basis to appeal to the US Supreme Court which will undoubtedly reply with “drugs are bad, mkay”.

    State by state… slowly but surely…

  7. Common? Nyet.

  8. This is amazing. Start working at home with Google. It’s a great work at home opportunity. Just work for few hours. I earn up to $100 a day. I can’t believe how easy it was once I tried it out

  9. Off-track post, but FedEx charged with assisting “illegal” pharmacies. So much for marijuana legalization…easy enough to shut-down ANYTHING if the Fed’s control banks, shipping, payment methods, etc….…..harmacies/

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