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Marijuana and Searches in MA

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

When Massachusetts voters decided to change how possession of less than an ounce of marijuana is treated in Massachusetts, marijuana law was only one area of law that changed. The new law makes possession of less than an ounce of marijuana a civil offense instead of continuing to treat it as a criminal offense. This shift has had ripple effects on other areas of law, namely our Constitutional rights protecting individuals from illegal searches and seizures by the government. On April 19, 2011 the Supreme Judicial Court released a decision Commonwealth v. Benjamin Cruz, 459 Mass. 459 (2011), which changed what Massachusetts police officers could do in response to smelling the odor of burnt marijuana in light of the new law.

smoking marijuana

Police officers can search a car if they suspect criminal activity is occurring at the time of a traffic stop. Prior to the new marijuana law, police officers had the right to search a vehicle during a traffic stop if they smelled burnt marijuana, because possession of marijuana was a criminal offense. Possession of less than an ounce of marijuana is now a civil offense, but possession of more than that is still criminal. How can a police officer decide if criminal activity is occurring by simply smelling burnt marijuana? In the Cruz case, the Supreme Judicial Court recognized that the change in Massachusetts law limits police officers’ rights to search in that exact instance. Since officers cannot determine how much marijuana is present at the time, they cannot determine if criminal activity is occurring. Therefore, police officers may no longer search a vehicle if they smell the odor of burnt marijuana.

This is not to say that there are no consequences to being caught smoking marijuana by the police; however, there is a new limit to these consequences. The Cruz decision could go on to have an effect in other areas of Constitutional law as well. What about the smell of fresh marijuana? What about a different setting? A house? A public area? The courts have not decided these issues, but it seems likely that this case will be used in the future to limit police rights in these instances as well. It is important to remember that possession of even less than an ounce of marijuana is still illegal; however, if you are caught in a bad situation it is important to know your rights.


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