Thursday, June 16, 2011


On August 11, 2011, the Massachusetts Supreme Judicial ruled that the odor of burnt marijuana is not enough for officers to order a person out of a parked car, since the possession of one ounce, or less, of pot is no longer a crime. In 2008, the voters voted to decriminalize the possession of this limited amount. It is, now, a civil offense punishing an adult with a $100.00 fine.
A close examination of the facts of the case is mandatory.

Two police officers spotted a car illegally parked in front of a fire hydrant. The officers approached  the two people seated in the car. One officer stood next to the driver's side, while the second officer stood near the passenger side. As they spoke to the occupants, one officer smelled a "faint odor" of burnt pot. When asked whether they had been smoking pot, the driver said that he had smoked earlier that day. The officers ordered the driver and passenger out of the car. One cop 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 Court ruled that the odor of burnt marijuana, alone, was not a sufficient reason for the police to order the passenger out of the car. It held that to order an occupant out of a car, based merely on suspicion of an offense, that offense must be criminal.
The cocaine possession conviction was tossed.

This is tortured judicial reasoning. Nevertheless, as a criminal defense attorney, this decision is music to my ears. But, as an objective blogger (an oxymoron), my common sense is swooning.
I believe that the intent of the Massachusetts voters was to decriminalize getting high in your home, possessing no more than an ounce of pot. No, the referendum was not worded that way, but consider the alternative: walking around in public, stoned, and carrying an ounce or less. If you feel the buzz to be declining, you turn on again, and so on, and so on. Your goal is to get and stay as high as possible. You're the guy giggling with every step. And I, for one, would rather not bump into you, especially if I were with family. I condone doing a joint in your own pad. Digging sounds or laughing at atrocity films.
If you venture out, let someone else drive, for to do so under the influence of pot is a crime. I am advocating staying cool, and not calling public attention to yourself. If you're going out to a music scene, smoke at home before you leave and don't drive. You can legally carry less than an ounce, but don't use in public, unless it's a Woodstock scene.

Now, for the case at hand. The car was illegally parked, with two occupants.This justified a approach by the two cops. Then they smelled burnt marijuana. The suspicion that more than one ounce of marijuana could be involved was not unreasonable. Therefore, ordering the occupants out of the car was o.k. Accordingly, finding the cocaine should have been deemed o.k., as well. I'm not saying that the end justifies the means, but the crux of the case is whether the police had the right to order the occupants out of the car. I' no prude, but I say they did.
For what if either of them were in possession of more than one ounce? That's criminal, and the cops were entitled to determine this, having been put on notice by the odor of burnt pot.

Point being made: stay cool and stay in. Just make sure that the 'fridge is fully stocked with twinkies

1 comment:

  1. I hear you Judge, "staying cool" - helps transgressions stay under the radar!