Is the Smell of Burnt Marijuana Enough?

How much evidence do police need to stop a person for a suspected civil marijuana offense?

As most residents of the Commonwealth of Massachusetts are aware, in November 2008, Massachusetts voters overwhelmingly approved a state ballot question decriminalizing the possession of small amounts of marijuana. Under G.L. c. 94C, §32L, the possession of an ounce or less of marijuana is now only considered a civil offense, subjecting the person in possession to a mere $100 fine.

Why is this relevant now?

The decriminalization of the possession of small amounts of marijuana has led to recent decisions by the Supreme Judicial Court regarding the Constitutionality of various actions by law enforcement in light of the non-criminal nature of simple marijuana possession.

Most recently, on March 5, 2015, the Supreme Judicial Court heard arguments on whether the odor of burnt marijuana provides justification for police to stop a vehicle. The defendant in the case Elivette Rodriguez was arrested by New Bedford police on drug charges as a result of a traffic stop on April 26, 2012. Police were conducting surveillance on a vehicle known to belong to a woman who had been previously arrested for heroin possession. After the car made a stop at a "home of interest," the undercover officers stopped the vehicle, claiming to have smelled the odor of burnt marijuana through his open window while following in their police vehicle. Suspecting that the occupants were smoking marijuana, the officers stopped the vehicle.

Following the stop, the officers found the driver smoking a marijuana cigar and a bag of suspicious white substance in plain view on the seat next to Rodriguez. Allegedly, the bag contained 60 pills of the painkiller Percocet and Rodriguez was charged with possession of the Percocet pills.

Is there any precedent?

In Commonwealth v. Cruz, the SJC held that the odor of burnt marijuana alone did not provide reasonable suspicion of criminal activity to justify police ordering a driver or passenger to exit a stopped vehicle. The Defense successfully argued that the SJC, the legislature, and the people of Massachusetts have drawn a very clear line in the sand, expressing that the possession of limited quantities of marijuana, for personal consumption, is no longer a criminal offense, and they should turn their attention to other more serious crimes. Last July, the SJC expanded on its ruling in Cruz with Commonwealth v. Craan and Commonwealth v. Overmyer, twin decisions holding that the detection of the odor of unburnt marijuana does not provide police probable cause to search a vehicle.

Currently under the law, police are allowed to stop vehicles for civil violations such as speeding, running stop signs or red lights, marked lane violations and broken taillights. Once stopped, police are then allowed to make observations that may lead to criminal charges. The Constitutional issue in Rodriguez pertains to whether an officer may pull over a car solely due to the smell of burnt marijuana.

One the one hand, it appears to be a logical extension of existing laws for police officers to be able to execute a traffic stop for the purpose of issuing a civil marijuana violation, similar to any other alleged traffic stop. However, there are specific statutes allowing for a traffic stop for perceived "traffic offenses." There is no similar provision in the marijuana decriminalization law.

From a public policy perspective, perhaps it lies with the legislature to specifically include traffic stops in the decriminalization statute language. The problem is that these situations tend to quickly escalate into something more serious; one can foresee that if an operator of a vehicle can be stopped for a suspected marijuana civil violation that the opportunity exists for law enforcement to take these stops further due to the suspicious nature of the initial infraction. One of the biggest concerns is the potential for minorities to be disproportionately targeted for these types of marijuana citation stops.

Until the Supreme Judicial Court issues a ruling in Rodriguez, law enforcement, attorneys, and the public alike will continue to struggle with this issue.

Keywords: marijuana, Massachusetts,