Persons who value the advantages of liberty and the principles of the constitution of Massachusetts will remember April 19 of 2011, the 236th anniversary of the battles of Lexington and Concord, as a little more special. It was the day that the Supreme Judicial Court released an opinion that the smell of burnt marijuana no longer empowers police to detain persons and search them or their possessions.
The case of Commonwealth v. Cruz arose when police spotted a car illegally parked. Two people were in the car, Mr. Cruz in the passenger seat. According to the police officers involved, when they approached the car, they smelled the faint odor of burnt marijuana. They ordered Cruz out and, in response to an inquiry by police, he gave up a piece of crack cocaine. Police found no marijuana in the car, on the person in the driver’s seat or following a full search of Mr. Cruz.
The court, referring to the 2008 ballot initiative to decriminalize possession of small amounts of marijuana, reasoned that, “voters read the arguments ‘for’ and ‘against,’ as well as the new law itself. Because we have the benefit of the written explanation in support of the initiative, the people’s intent in answering Question 2 in the affirmative was clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction.”
So, the court continued, responding to a whiff of burnt marijuana with the same fervent police action “associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute.”