SJC rules ‘social sharing’ of marijuana is not distribution; issues series of rulings clarifying pot law

The state’s highest court today stepped into the gray legal area created in 2008 when voters decriminalized the possession of one ounce of marijuana, releasing four rulings aimed at clarifying where police and the public can draw the line between a crime and a civil offense.

In three of the rulings, the Supreme Judicial Court concluded that prosecutions linked to the public consumption of small amounts of marijuana cannot stand because the defendants came to the attention of police due to civil infractions – which are punishable by fines – and not by crimes punished by imprisonment.

In the fourth ruling, the SJC decided that a Western Massachusetts man who had outfitted his closet to grow marijuana could face criminal charges because cultivating cannabis is still illegal, even though Adams police found less than an ounce of marijuana when they raided his home.

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At the heart of one of the rulings was the Hempfest held annually at Boston Common, where many attendees publicly smoke marijuana and often – as was the case with defendant Kityan Jackson – share a joint with friends and acquaintances. Jackson was spotted by police sharing a joint, which led police to search his backpack without a warrant, where they found 10 small bags of marijuana weighing 23.5 grams, or less than an ounce.

Jackson was prosecuted for possession of marijuana with intent to distribute. But the SJC said that charge must be thrown out because Jackson was targeted by police after they spotted him committing a civil infraction, sharing a joint, not a crime.

“We now decide that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution,’’ Justice Fernande R.V. Duffly wrote for the unanimous court.

She added that “we conclude that the observation by police of several individuals using and sharing marijuana in a social setting does not provide the police with justification to conduct a warrantless search. ‘’

The SJC also threw out illegal gun possession charges lodged against Daniel Clinton and Alyson Tayetto after Boston police stopped the car Tayetto was driving in Dorchester with one headlight out in 2009 and discovered that both smelled like they had been smoking marijuana and that Tayetto possessed a small amount of marijuana.

Duffly also authored this unanimous ruling, which concluded that the gun found in the glovebox of the car was discovered only after police made an unauthorized search of the vehicle based on Tayetto’s admission that she possessed a small amount of marijuana.

“Absent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband,’’Duffly wrote.

The SJC also rebuffed Suffolk District Attorney Daniel F. Conley’s office on another key issue raised during the appeal. Prosecutors wanted the SJC to make it clear that police have the right to search a car to make sure they do not drive under the influence of marijuana, which remains a criminal offense akin to drunken driving.

The SJC said it would not use its power to grant police that “community caretaker’’ authority, in part because none of the evidence against Tayetto suggested she was incapable to drive and also because prosecutors had not raised the issue in the lower courts.

Police “did not observe anything about the driver that would lead a reasonable observer to believe that her capacity to operate a vehicle was impaired by the use of marijuana,’’ Duffly wrote.

The SJC also threw out a gun case against Antonio L. Pacheco, who was in a car smoking marijuana when a state trooper stopped him for violating the evening curfew at Heritage State Park in Lynn. The trooper found a small bag of marijuana inside the cab of the car, and then went on to open the trunk, where he found a gun stuffed into a backpack.

Pacheco allegedly admitted the weapon was his, but the SJC said those statements must be thrown out, too, because they were made only after the trooper conducted an illegal search of the car. “The statements were in response to, and as a result of, the illegal search. As such, the statements were the fruit of the impermissible search of the trunk,’’ Duffly wrote.

The court also found that the reach of decriminalization has its limits. Justices ruled that Kenneth J. Palmer Jr. could still be prosecuted for cultivating the marijuana Adams police found growing in a closet in his home in 2010 – even though the seized marijuana weighed less than an ounce.

While only an ounce was recovered by police, officers also found he had outfitted the closet with lights, a thermometer, and empty plastic bags.

Justice Margot Botsford wrote that “the word ‘cultivate’ refers to the process of growing a plant or crop, not the purpose for which the plant or crop is grown. Accordingly, we hold that the cultivation of one ounce or less of marijuana, regardless of its intended use, is a criminal offense.’’

In the Palmer case, the ruling was unanimous, but three justices, led by Duffly, said in a concurring opinion that the court should make it clear that cultivation of marijuana for personal use should no longer be considered a crime.

“I believe it is clear that the growing of one ounce or less of marijuana for personal use is not a crime,’’ Duffly wrote, alluding to the adoption of the medical marijuana law and the decriminalization of possession of an ounce or less as the basis for her thinking.

“Treating marijuana cultivation for personal use in the same manner as simple possession is treated under … a civil infraction, is also consistent with the recent enactment … of the statute, which legalizes the medical use of marijuana by qualifying patients,’’ Duffly wrote.

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