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Marijuana Odor in Car Not Enough for Police Action

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By Stephanie Rabiner, Esq. on April 21, 2011 1:11 PM

If you're a marijuana smoking Massachusetts resident, here's some potentially good news:

The Supreme Judicial Court has decided that the smell of marijuana alone is no longer sufficient reasonable suspicion for law enforcement to order you out of a vehicle.

The rest of you? Well, you're probably out of luck.

The case, Commonwealth v. Cruz, stems from an incident during which police, after questioning, ordered a man out of his vehicle based solely on the fact that the distinct odor of marijuana was present.

Generally speaking, under Fourth Amendment jurisprudence, marijuana odor is sufficient evidence to conclude that a person is involved in criminal activity for the purposes of reasonable suspicion. Possession, subject to medical marijuana laws, is a crime across the country.

That is, unless you live in Massachusetts.

Massachusetts marijuana law changed in 2008 when the state decriminalized the possession of one ounce or less and instead classified it as a civil infraction.

Reasonable suspicion under the Fourth Amendment requires evidence of criminal activity, and according to the Supreme Judicial Court, marijuana odor alone does not indicate the quantity of marijuana a person possesses.

In other words, even if the smell is particularly potent, it still won't alert officers to whether a person is breaking Massachusetts marijuana law.

So what does this mean for the ordinary person?

If you happen to be in Massachusetts, police may not search your person, your belongings, or order you out of a vehicle if the only evidence of criminal activity is the presence of marijuana odor.

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