By Denise Lavoie, AP Legal Affairs Writer

BOSTON (AP) — The odor of burnt marijuana alone is not enough for police to suspect criminal activity and order a person to get out of a car, the state’s highest court ruled Tuesday, citing a state law that decriminalizes possession of small amounts of the narcotic.

WBZ NewsRadio 1030’s Kim Tunnicliffe reports

The Supreme Judicial Court cited a 2008 ballot question in which voters agreed to make possession of 1 ounce or less a civil, rather than a criminal, violation.

“We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal,” Chief Justice Roderick Ireland wrote for the court in the 5-1 ruling.

The court found that the new law “provides a clear directive to police departments handling violators to treat commission of this offense as noncriminal.”

“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,” Ireland wrote.

The court said that there must be additional reasons for police to suspect criminal activity to justify ordering someone to get out of a car.

Police Commissioner Ed Davis on ruling with WBZ NewsRadio 1030’s Jon Maclean

The ruling came in the case of Benjamin Cruz, a passenger in a stopped car, after a Boston police officer, smelling burnt marijuana inside, ordered Cruz to get out.

The court found that police permissibly approached the car because it was parked in front of a fire hydrant but did not have probable cause to order Cruz to step out.

As Cruz was getting out, police officers asked him if he had anything on him. They say Cruz replied that he had “a little rock for myself” in his pocket.

Police say they seized crack cocaine from Cruz and charged him with drug possession with intent to distribute and committing a controlled substances violation in a school zone.

The Supreme Judicial Court, in its ruling, upheld a lower court ruling suppressing the man’s statement to police.

In a dissenting opinion, Justice Judith Cowin said case law in Massachusetts has always made it clear that police can do a warrantless search of a car if they smell marijuana.

She said the decriminalization of small amounts of marijuana should not change that.

“An officer’s reasonable suspicion justifies an inquiry and, if necessary, an exit order to determine whether probable cause exists to believe that criminal activity has occurred or is occurring,” wrote Cowin, who deliberated in the case before her recent retirement.

In this case, the officers’ detection of the odor of marijuana provided a basis for a reasonable suspicion that the people in the vehicle might be involved in the commission of crime, Cowin wrote.

“Because that suspicion was reasonable,” she wrote, “the officers did not violate the defendant’s rights by inquiring further and by requiring him to exit the vehicle.”

Middlesex District Attorney Gerry Leone said he was disappointed in the court’s ruling and agreed with Cowin’s dissenting opinion.

“Today’s decision sets a negative precedent for countless cases to follow,” Leone said. “This is another example of the challenging legal ramifications for law enforcement resulting from Question 2’s passage and, just as importantly, the mixed messages being sent to our children about marijuana.”

Sixty-five percent of voters approved the measure to decriminalize possession of small amounts of marijuana in 2008.

Supporters said the move would spare thousands of people from having criminal records and would save taxpayers $30 million in costs associated with marijuana arrests. Opponents, led by district attorneys, warned that the move could lead to more drug abuse among young people.

Cruz’s lawyer praised the court’s ruling.

“What they said was now that the people of Massachusetts have spoken and decided they no longer want small amounts of marijuana treated like a major crime, police shouldn’t do that, either in terms of how they investigate it or the reasons for which they begin investigating in the first place,” said Scott Michelman, a staff attorney at the American Civil Liberties Union’s Criminal Law Reform Project.

He said the opinion “reaffirmed that you need suspicion of criminal conduct in order to search and seize.”

(Copyright 2011 by The Associated Press. All Rights Reserved.)

Comments (147)
  1. J. James says:

    All of you pot heads can’t think clearly. BURNT means someone is smoking pot in or recently in the car and they are most likely under the influence. Remember DUI. Your pot has made you fat and stupider.

  2. B says:

    Marijuana is not a narcotic.

    1. Dennis in WV says:

      True enough, and then again neither is cocaine if you are using the standard set by the federal controlled substance act.

      Alcohol also is not a narcotic, but I don’t want consumers of that drug to be out and about driving either.

  3. RufusVonDufus says:

    Hey, it’s Massachusetts, what else would you expect?

  4. Dennis in WV says:

    What an idiotic judge. Drinking neither beer, wine nor whiskey is a criminal act either, but now I suppose an officer cannot request to search a vehicle because of the SMELL of alcohol? Mothers against drunk driving are gonna love that one.

  5. Barack says:

    do police have scales in their cruisers?

  6. Barack says:

    do cops have scales in their cruisers in MA?

  7. S.Hollly says:

    Just an observation but the article called marijuana a narcotic which it is not. Opiods such as morphine and oxycodone etc are narcotics.Second the suspect said he had some rock which is crack cocaine and not a narcotic or MJ and third there was no mention whether they found any pot or not in the car. That aside probable cause has caught a lot of criminals but an overreaching militaristic police force should be something to fear and resist in a free society.There are passionate arguments to be made for freedom vs security on both sides. I have police friends and I have been harassed by the police. At the end of the day the will of the people and society decides if a law is just or not and hopefully legislators and courts are on the same page. If we allow a militaristic police force then we tip that balance and majority opinion becomes servant to force and the people’s voice gets squelched. So would it be illegal to sit in a parked car that has a ”pot’ smell? I would say no as well.

  8. Hank Warren says:

    The cops will just lie next time. Lying cops, yet another violation of our rights. Add it to the list of gov’t violations of our right:
    They violate the 1st Amendment by placing protesters in cages, banning books like “America Deceived II” and censoring the internet.
    They violate the 2nd Amendment by confiscating guns.
    They violate the 4th and 5th Amendment by molesting airline passengers.
    They violate the entire Constitution by starting undeclared wars for foreign countries.
    Impeach Obama and sweep out the Congress.
    (Last link of Banned Book):

  9. Frank says:

    I agree that the police in this case police did not have reasonable suspicion to order Cruz out of the car. Parking next to a fire hydrant is not a criminal offense. The smell of Marijuana is also not reason enough . Once the crack cocaine was found, that was reason enough.Even though the cops were wrong to ask Cruz to exit the vehicle, I’m glad they didn’t charge him for MJ use. They did abide by the MJ laws.

  10. toPdoG says:

    Legalize don’t Terrorize !
    Some people will never believe that priest can molest, mothers can drown their children, and that police can abuse their powers,
    For those of you who don’t believe…Santa Claus, and the Easter Bunny say WAKE UP!!!!
    Quit filling the Jails with non violent drug abusers and start making space for rapist, murders, molester and thieves…who would you rather have living next to you; pot smoking hard working blue collar guy or a early released pedofile who couldn’t stay in jail because Joe the Plumber has a mandatory min for having a Joint…Look up the states that force pot smokers to go to jail and release sexual predators due to over crowding…those are facts!!
    It’s a loosing war that persecutes regular people!!

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