When Possessing Pot Is No Crime, Can the Smell of Marijuana Justify a Search?

Two
years ago, in Commonwealth v. Cruz, the Supreme Judicial
Court of Massachusetts ruled
that the odor of burning marijuana is not sufficient reason for a
police officer to order a motorist out of his car. The court noted
that under Question 2, an initiative that Massachusetts voters
approved by a large margin in 2008, possessing up to an ounce of
marijuana is a citable offense rather than a misdemeanor. “To order
a passenger in a stopped vehicle to exit based merely on suspicion
of an offense,” the court ruled, “that offense must be criminal.”
Suffolk District Attorney Daniel Conley nevertheless is asking the
court to uphold a car search triggered by the smell of marijuana.
Among other things, he argues that such an odor counts as probable
cause because possessing small amounts of cannabis remains a crime
under federal law. In an
amicus brief filed last Friday, the National
Organization for the Reform of Marijuana Laws urges the court to
reject that argument (citations omitted):

The appellant asks this Court to reverse its holdings in
Cruz and its progeny by empowering state law
enforcement to ignore the state decriminalization law and
enforce instead federal prohibition law. The appellant
would enable federal law to justify police
searches otherwise illegal under state law….

Enforcing federal prohibition—against the will of
a compelling majority of state’s voter rejection of
that policy in adopting decriminalization by
initiative—violates fundamental principles of federalism and
the state constitution’s separation of powers….

State law enforcement derives its authority from state law,
its constitution and statutes; the power of local police to
detain and arrest, within the outer limits of
federal Constitutional civil rights law, is derived from
and determined by state law. 

Local police cannot evade state law constraints in state
court prosecutions by wishing they were federal deputies and
pretending their arrestees can be brought to federal
courthouses. Allowing state law enforcement to disregard state
law, by preferring federal policies rejected by popular
initiative and this Court, eviscerates the sovereignty of the
people and federalism’s protection of state
sovereignty. 

The case involves a motorist, Anthony Craan, who was pulled over
in June 2010 by state police at a sobriety checkpoint. Trooper
Scott Irish claimed to smell “the strong odor of fresh, unburned
marijuana coming from the passenger compartment.” After Irish
mentioned this, Craan revealed that he had a plastic bag of pot in
his glove compartment, which led to car search that revealed
additional marijuana, MDMA pills, and a four loose rounds of
ammunition. But at the point when Irish decided to search the car,
all he knew was that Craan possessed less than an ounce of
marijuana, which in itself is not a crime under Massachusetts
law.

In addition to seeking refuge in federal law, the prosecutors
argue that Irish had probable cause to charge Craan, who admitted
that he and his passenger had recently smoked marijuana, with
driving under the influence, in which case going through the car
would have been justified as a search incident to an arrest. The
government also argues that the presence of a little marijuana
raises the possibility of more—perhaps enough to count as a
misdemeanor under state law. That last argument, like the one based
on the federal Controlled Substances Act, would justify a car
search whenever a cop smells (or claims to smell) pot, even though
possessing up to an ounce has been decriminalized in Massachusetts.
He would not even need a
dog.

[via
Boston magazine]