The smell of marijuana smoke is no longer enough reason for police to order someone out of a car, now that pot has been decriminalized in Massachusetts, the state’s highest court said in a decision published on Tuesday.
The ruling by the Massachusetts Supreme Judicial Court was in response to an appeal filed by lawyers for Benjamin Cruz from Boston, whom police ordered out of a car in 2009 when they approached the vehicle parked in front of a fire hydrant and smelled marijuana.
Cruz was later charged with possession of a class B controlled substance with intent to distribute and committing a controlled substance violation in a school zone.
The high court said a key factor in its decision was the 2008 change in state law which made possession of one ounce or less of marijuana a civil rather than a criminal offense.
“Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burned marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order,” the opinion said.
In a dissenting opinion, now retired Justice Judith Cowin wrote, “Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway.”
“The odor of marijuana permits an officer reasonably to suspect that the parties involved are in possession of criminal quantities of marijuana or are in possession of marijuana with intent to distribute,” she wrote.
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