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SJC: Odor of marijuana not enough to order suspect out of car

Print | Comments () Posted by Martin Finucane April 19, 2011 11:20 AM

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By Martin Finucane, Globe Staff

The odor of burnt marijuana is no longer enough for police officers to order a person from their car, now that possession of less than an ounce of marijuana has been decriminalized in Massachusetts, the state's highest court ruled today.

"Without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order," the court ruled in a decision written by Chief Justice Roderick Ireland.

The court said the people's intent in passing a 2008 ballot question decriminalizing the possession of small amounts of marijuana was "clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction."

"Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute," the court said.

Justice Judith Cowin, who has since retired, penned a dissent.

She wrote that up until today, state law has allowed police to perform a warrantless search if they smelled burnt marijuana in a car.

"Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway," she wrote.

"Our case law is clear that 'the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby.' The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana's odor. Nor has decriminalization affected the criminal status of numerous other activities involving marijuana," Cowin wrote.

Voters in November 2008 overwhelmingly approved Question 2, which decriminalized marijuana. Backers of the measure said it would bring a "more sensible approach" to marijuana policy and a greater focus by law enforcement on more serious and violent crimes. Opponents argued that the law would promote drug use and unsafe behavior.