A recent ruling by the Supreme Judicial Court has caused a stir among prosecutors and police officers in Massachusetts. On April 19, 2011, the SJC ruled that the faint odor of burnt marijuana is not enough for police to develop a reasonable suspicion of criminal activity and order a person out of a car.
In Commonwealth v. Cruz, two police officers spotted a car that was illegally parked in front of a fire hydrant. The police officers approached the two people seated in the car. One police officer stood next to the driver’s side of the car while the second officer stood near the passenger’s side. As the police officers spoke to the occupants, one of the officers smelled the “faint odor” of burnt marijuana. When asked whether they had been smoking marijuana, the driver said he smoked earlier that day. The police officers ordered the driver and the passenger out of the car. One officer asked the passenger whether he had anything on him. He told the officer that he had some drugs with him. The officer searched the passenger and found crack cocaine in his pocket. The passenger became the defendant in the Cruz case.
The Court’s Decision
The SJC determined that the odor of burnt marijuana, alone, was not a sufficient reason for the police to order the passenger out of the car. The Court concluded that to order a person out of a car based merely on suspicion of an offense, that offense must be criminal.
The Court rejected the Commonwealth’s argument that the marijuana odor was enough for the police to develop reasonable suspicion that the passenger was involved in criminal activity. Possession of one ounce or less of marijuana is not a crime in Massachusetts. Voters moved to decriminalize the possession of small amounts of marijuana in 2008.
Because possessing small amounts of marijuana is a civil offense in Massachusetts, the Court held that the marijuana odor, alone, did not lead to a reasonable suspicion that the passenger was in possession of a criminal amount (more than one ounce) of marijuana. Therefore, there was no reasonable suspicion that the passenger was involved in criminal activity and the police were not justified in ordering him out of the car.
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