Marijuana odor not enough to indicate drug crime

On behalf of Brian D. Roman, Attorney at Law on Friday, July 25, 2014.

On July 9, the Massachusetts Supreme Judicial Court issued a landmark decision which undoubtedly will affect how police interact with marijuana smokers. The court reviewed a pair 2011 rulings in which it unanimously decided that the odor of smoke marijuana alone did not rise to the level of the necessary probable cause to grant Massachusetts police officers enough justification to search a person's car.

The state's highest court based those rulings on a 2008 change in Massachusetts law which decriminalized marijuana possession for 1 ounce per individual. In other words, the court said that it recognized that the smell of burnt marijuana is very noticeable but the fact that one can smell burnt marijuana does not necessarily mean that a person is involved in a jailable offense due to the public's more lenient view toward the use of marijuana.

The effect of the ruling essentially means that police can no longer use the smell of burnt marijuana as justification to search a person or their vehicle.

People charged with drug crimes sometimes forget that the prosecution has the task of trying to prove the defendant's guilt beyond a reasonable doubt. That is why defendants should remain quiet following their arrest until they have had time to speak with legal counsel. Any discussion or admission to police and other authorities could jeopardize later attempts to dismiss or reduce charges.

Additionally, defendants faced with multiple serious charges such as drug trafficking and intent to distribute should know that prosecutors are sometimes willing to negotiate guilty plea settlements in exchange for reduction in prison sentences, fines and other terms. Many jurisdictions throughout Massachusetts also have drug diversion programs administered through the court. These are programs which seek to divert some drug offenders into substance abuse treatment rather than incarceration. Some defendants facing drug charges may wish to consider these alternatives.

Source: Boston Globe, "Smell of unburnt marijuana cannot justify search of car" John R. Ellement, Jul. 09, 2014