Top Mass. Court: Cops Can't Stop a Car Just Because It Smells Like Pot

After marijuana decriminalization, more is required to pull someone over.


Phillies Blunt

In 2008 Massachusetts voters approved Question 2, a ballot initiative that decriminalized possession of an ounce or less of marijuana, making it a civil offense punishable by a $100 fine. Three years later, the Supreme Judicial Court of Massachusetts ruled that in light of Question 2, the smell of burnt marijuana was not sufficient justification for ordering a motorist out of his car during a traffic stop. Last year the court extended the logic of that decision, saying a marijuana odor by itself does not justify a car search, since a search must be based on probable cause to believe that evidence of a crime will be discovered, and one ounce or less of cannabis (a civil offense) smells the same as more than an ounce (a misdemeanor). This week the court went even further, ruling that the smell of burnt marijuana cannot by itself justify a traffic stop.

The case involved a New Beford police officer who pulled over a car that gave off a marijuana odor. It turned out the driver was smoking a blunt and transporting a plastic bag containing 60 Percocet tablets. But prior to the stop, the evidence suggested only that someone in the car was smoking pot or had recently smoked it, which might amount to no more than a civil offense. Although police are allowed to stop a car based on reasonable suspicion of a civil traffic violation, the court said, that's because of the special safety concerns raised by such infractions:

Many of our traffic violation statutes regulate moving cars and relate directly to the promotion of public safety; even those laws that have to do with maintaining a vehicle's equipment in accordance with certain standards may also be safety-related….Permitting stops based on reasonable suspicion or probable cause that these laws may have been violated gives police the ability to immediately address potential safety hazards on the road. Thus, although a vehicle stop does represent a significant intrusion into an individual's privacy, the governmental interest in allowing such stops for the purpose of promoting compliance with our automobile laws is clear and compelling.

No similar governmental interest supports allowing police to stop a vehicle based on reasonable suspicion that someone in the vehicle possesses an ounce or less of marijuana in violation of [the law making possession of an ounce or less a civil offense]. Although vehicle stops to investigate civil marijuana infractions serve a general law enforcement purpose, there is no obvious and direct link between enforcement of the civil penalty for marijuana possession and maintaining highway safety.

The court concluded that such traffic stops therefore do not qualify as "reasonable" seizures under the Fourth Amendment. It also observed that allowing traffic stops aimed at catching pot smokers would undermine the goals of Question 2, which sought "to reduce the direct and collateral consequences of possessing small amounts of marijuana, to direct law enforcement's attention to serious crime, and to save taxpayer resources previously devoted to targeting the simple possession of marijuana."

Next year Massachusetts voters will have a chance to go beyond decriminalization. An initiative that's expected to be on the 2016 ballot would legalize marijuana for recreational use, allow home cultivation, and create a system for licensing and regulating commercial production and distribution.