Does the Smell of Marijuana Justify a Vehicle Search? Massachusetts Court Says "No."

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For the citizens of Washington and Colorado—who voted to legalize recreational marijuana—the problem facing them is that despite their new law, marijuana still remains illegal at the federal level. Meanwhile, police officers in Massachusetts are looking to use that particular contradiction to circumvent their own state law that decriminalizes pot possession, including using the lingering smell of it as justification to search vehicles.

According to Forbes, “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.”

Last week the National Organization for the Reform or Marijuana Laws or NORML filed an amicus brief as a response to the case of Anthony Craan who was pulled over and had his vehicle searched because of “the strong odor of fresh, unburned marijuana coming from the passenger compartment.”

A search of his vehicle turned up marijuana, MDMA pills, and “four loose rounds of ammunition.” However, because possession of marijuana is not a misdemeanor and just a citable offense, and that evidence was surpressed. The police have said that because it remains illegal on the federal level, they can enforce that law and ignore the state policy on the substance.

In the NORML brief,  they point out that “[s]tate 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.” Thus, the statute that decriminalizes marijuana should take precedence over any federal restriction.

Prosecutors are also arguing that Craan admitted that he and his passenger smoked pot “recently” (and that the stop occurred at a sobriety checkpoint), which justified Craan’s detention and search of his vehicle. This is yet another instance regarding the trouble with determining impairment when pot is involved. The chemicals they test for remain present in the blood long after the effects of the drug have worn off.