The smell of marijuana is no longer justification for searches in Massachusetts

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October 23, 2016
Denver, CO

The Supreme Judicial Court of Massachusetts ruled Wednesday that police officers cannot search vehicles based solely upon the smell of unburnt marijuana, reports. The court had previously decided that warrantless searches of pedestrians or cars for the smell of burned marijuana were illegal in 2011. They believed that allowing unwarranted searches based on the smell of marijuana would be inconsistent with the 2008 law that decriminalized marijuana in Massachusetts. The ruling on Wednesday was based on the fact that the human nose cannot discern the presence of a criminal amount of marijuana as opposed to a non-criminal amount. Possession of less than an ounce is not a crime in Massachusetts and, as the police cannot reliably distinguish criminal amounts of marijuana by smell, searches would not be legal. The justices wrote, “We are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.”

The court said this decision was consistent with the will of the people who want the police to focus on more serious crimes. The court rejected the argument from law enforcement that they can search vehicles based on the smell of marijuana because possession of marijuana is still a criminal offense under federal law. Justice Barbara Lenk said, “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search.”

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