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Smell of Marijuana Does Not Allow Police to Search your Car

As a result of a 2008 ballot initiative, it is no longer a crime to possess less than one ounce of marijuana in Massachusetts.  The change in the law also changed the rules related to a police officer’s right to search your motor vehicle.  The Massachusetts Supreme Judicial Court ruled today in Commonwealth v. Overmyer that police officers do not have the authority to search a car simply because they perceive the smell of unburnt marijuana emanating from the vehicle.

The defendant was involved in a minor car accident and when the police responded, they smelled a strong odor of unburnt marijuana near the defendant’s car.  When confronted, the defendant admitted to the police that there was marijuana in his car and he provided a key to the glove compartment.  The officers searched the glove compartment and found a bag of marijuana.  The officers continued to smell unburnt marijuana and asked the defendant if there was anything else in the vehicle.  The defendant initially denied having additional contraband, but when told that the canine unit was on its way, he admitted there was more marijuana in the car.  The police searched the vehicle and found a backpack in the back seat containing small, individually-wrapped bags of marijuana.  The defendant was charged with possession with intent to distribute marijuana and a school zone violation.

In 2011, the Supreme Judicial Court ruled in Commonwealth v. Cruz, that the odor of burnt marijuana alone could not provide reasonable suspicion of criminal activity (and therefore did not justify a police search of a car).  In the case decided today, the SJC said that a police officer who smells unburnt marijuana cannot predict whether the marijuana would weigh more than one ounce (which is still a crime) or less than one ounce (which is a civil violation).  Therefore the mere odor of marijuana, burnt or unburnt, does not give police officers the right to search motor vehicles.

As always, police officers can always request a motorist’s consent to search his car.  If you are ever stopped for a motor vehicle infraction and the police ask for your permission to search your car, you should politely decline.

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