Moral Low Ground

Civil Liberties

Massachusetts High Court Rules Marijuana Odor No Longer “Reasonable Suspicion” for Cops

When Fox News blowhard Bill O’Reilly calls a legal decision “perhaps the dumbest court ruling in history,” you know it’s a great day for America. Here’s a bit of good 4/20 news for pot smokers in the Bay State…

The Massachusetts Supreme Judicial Court (SJC), the highest legal body in the state, has ruled that the odor of marijuana smoke is not sufficient probable cause to order someone out of a parked car, now that possession of small amounts of the drug has been decriminalized, the Boston Globe reports. The decision has been hailed by marijuana and civil liberties advocates and slammed by law enforcement officials who say it will deny them a valuable crime-fighting tool.

“Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order,’’ the court’s 5-to-1 ruling, written by Chief Justice Roderick Ireland, declared. The court referred to the voters’ decision to decriminalize possession of any amount less than one ounce of marijuana, passed in 2008 via ballot question, as justification for their decision.

“Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public, nor in accord with the plain language of the statute,’’ Roderick wrote.

Justice Judith Cowin cast the lone dissenting vote.

“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,’’ she wrote.

The justices ruled on a 2009 case involving two Boston cops patrolling in an unmarked car who came upon a parked car from which the “faint odor” of marijuana was emanating. When asked, the driver admitted that he’d smoked marijuana earlier in the day. Although the officers witnessed nothing illegal happening, they claimed the passenger was nervous and ordered the men out of the vehicle. They then asked the passenger if he had anything illegal on his person; he told them he had a small amount of crack cocaine.

The SJC justices said there were three situations in which police could order a passenger out of a parked vehicle: if the officers felt they were in danger; if they had reasonable suspicion that the passenger was involved in illegal activity; or if they decided to search the vehicle. In the case at hand, the justices ruled that the officers should not have ordered the passenger out of the car because none of the above criteria were met.

“There are no facts in the record to support a reasonable suspicion that the defendant possessed more than 1 ounce of marijuana,’’ they ruled. “We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.”

Police and prosecutors were predictably pissed. Said Boston Police Commissioner Edward F. Davis: “I think this particular decision presents an enormous problem for us. The logic escapes me. . . We will be the only state in the country where this standard is in place. It just doesn’t make a lot of sense… In my mind, the odor of marijuana is clearly enough evidence of illegal activity to justify ordering those inside to exit the vehicle.’’

Such is the mind of a cop.

On the other hand, Michael Cutler of the National Organization for the Reform of Marijuana Laws (NORML), which filed a brief supporting the defendant in the case, said that this ruling illustrated how the personal use of marijuana “does not deserve attention and the expenditure of police resources that could be far better spent in terms of dealing with violent and predatory crime.”

We couldn’t agree more.



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  1. Shiva Manjunath via FacebookApril 20, 2011 at 4:43 pmReply

    oh, is that why #420 and #loving420 was trending on twitter today???

    • Brett WilkinsApril 20, 2011 at 5:59 pmReplyAuthor


  2. John SmithApril 22, 2011 at 6:58 amReply

    Shouldn’t smoking that dimp in your car be considered the same as open container. That is my only concern in this case.

    • Brett WilkinsApril 22, 2011 at 8:25 amReplyAuthor

      You know, after listening to Bill O’Reilly take the same stance as you on Fox last night, I am leaning towards agreeing with you now. I’m serious.

  3. John SmithApril 22, 2011 at 12:26 pmReply

    Don’t get me wrong I have had my fair share of pot smoke box joy rides but I think it was probably dangerous. It is actually surprising that the judges were so lenient. You shouldn’t be able to smoke and drive. Smoke and eat a pizza should be very legal.

    • Brett WilkinsApril 23, 2011 at 8:35 amReplyAuthor

      The law pertains to passengers, but as a fellow “smoke box” veteran, when was the last time you saw a passenger smoking who didn’t puff-puff-pass? Such a passenger would not be a good friend! So yeah, I am agreeing more and more with you.

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