The Supreme Judicial Court just released an important decision regarding the police’s ability to conduct warrantless searches of automobiles based on the smell of marijuana.

Some background: In 2008, Massachusetts voters decriminalized the possession of one ounce or less of marijuana. This meant that if you were caught with an oz. or less, you would be subject only to a $100 fine and would face no criminal charges. As a matter of Constitutional law, in order for police to conduct a warrantless search of a vehicle, they must have reasonable suspicion of criminal activity. In 2011, the SJC ruled that the smell of burnt marijuana alone was not sufficient to justify a warrantless search of a car. There, the SJC reasoned:

Given our conclusion that [the decriminalization law] has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.
. . .
[FN25] It is no longer reasonable for the smell of burnt marijuana alone to lead an officer to suspect that criminal activity is afoot, even if the odor is present in a so-called “high crime” neighborhood.

Commonwealth v. Cruz, 459 Mass. 459, 472, 945 N.E.2d 899, 910, 2011 Mass. LEXIS 171, 27 (Mass. 2011)

Whereas the Cruz case dealt with the smell of burnt marijuana, it left unresolved the question of what police could do regarding the smell of unburnt marijuana. That question was resolved yesterday in Commonwealth v. Matthew W. Overmyer. There, the defendant was involved in an accident and responding officers noticed a strong smell of unburnt marijuana in his car. The defendant admitted that he had some marijuana in the glove compartment, and gave the police access to it. However, after the police removed that marijuana, they still detected a strong odor of marijuana in the car. After applying some pressure on the defendant, he admitted that there was more marijuana in the car. Police commenced a search of the car and found a backpack containing large freezer bags containing smaller baggies of marijuana. As a result, the defendant was charged with possession with intent to distribute.

The case quickly made its way to the SJC; the Commonwealth sought the Court’s opinion as to whether the smell of unburnt marijuana was sufficient to trigger a “reasonable suspicion of criminal activity” thereby justifying warrantless auto searches. The Court held that it was not:

Although the odor of unburnt, rather than burnt, marijuana could be more consistent with the presence of larger quantities, it does not follow that such an odor reliably predicts the presence of a criminal amount of the substance, that is, more that one ounce, as would be necessary to constitute probable cause.

Commonwealth v. Matthew W. Overmyer

Thus the SJC held that the strength of the odor of marijuana was too subjective an indicia alone for an officer to determine whether a criminal (over 1 oz.) amount was present.

“We are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, weather burnt or unburnt.”

Commonwealth v. Matthew W. Overmyer

This ruling is a victory for advocates of marijuana law reform. Given the SJC’s rulings subsequent to the 2008 decriminalization measure, this attorney predicts that legalization, as in Colorado and Washington, will soon render the 1 oz. rule moot.

Full Decision: Commonwealth v. Overmyer [PDF]