Smokers, Dealers and Growers: The Supreme Judicial Court Hashes Out the Marijuana-Reform Ballot InitiativePosted: July 9, 2014 | |
In November 2008, the people of the Commonwealth passed a Ballot Initiative decriminalizing simple possession of one ounce or less of marijuana. Fewer than three years later, the Supreme Judicial Court held that as a result of the Initiative, the odor of burnt marijuana standing alone no longer provided reasonable suspicion that a crime was occurring and, therefore, could not justify an order by a law enforcement officer to an occupant to exit a vehicle. Commonwealth v. Cruz, 459 Mass. 459 (2011). And, in a trilogy of cases decided the same day in 2013, the Court further elucidated the impact of the Ballot Initiative on the law of search and seizure.
First, in Commonwealth v. Daniel, 464 Mass. 746 (2013), the Court held that a police officer who smelled burnt marijuana on an individual who surrendered the decriminalized amount lacked probable cause to search for additional marijuana. Second, in Commonwealth v. Jackson, 464 Mass. 758 (2013), the Court held that social sharing of marijuana does not constitute distribution. Accordingly, the police may not arrest (and then search incident to that arrest) those who share socially. Finally,in Commonwealth v. Pacheco, 464 Mass. 768 (2013), the Court held that a police officer who encountered an illegally parked car where the occupants appeared to be smoking marijuana, and subsequently found a small amount of marijuana in a bag on the floor of the car, lacked probable cause to search the car further for contraband.
Although the Cruz decision foreshadowed the trilogy, those cases nevertheless represent a major change in the law with respect to the permissibility of law-enforcement searches and seizures when there is evidence of marijuana possession or use. Part I of this Article reviews the facts and reasoning of the three cases, and Part II discusses the implications of the decisions and examines them in the context of other post-Ballot-Initiative decisions of the SJC.
Two Car Stops and the Marijuana Party on the Boston Common: the Facts and Holdings of Daniel, Jackson, and Pacheco
The facts of Daniel and Pacheco have some similarities. Defendant Daniel was riding with co-defendant Alyson Tayetto in Dorchester when a police officer stopped them for a traffic violation. The officer smelled freshly burnt marijuana and inquired about the smell. Tayetto surrendered two small bags of marijuana from her clothes while Daniel surrendered a knife. The officer ordered Daniel and Tayetto out of the car, searched them, found nothing, and then searched the car and found a handgun and ammunition in the glovebox. Daniel and Tayetto were charged with firearm offenses.
In Pacheco, a State Trooper on routine patrol encountered the defendant sitting with companions in an illegally parked car with clouded windows at Heritage State Park in Lynn. After the Trooper inquired about the smell of burnt marijuana, the occupants admitted to smoking together and that there was marijuana in the car. The Trooper found a “partial ounce” on the floor of the passenger compartment and proceeded to search the trunk, where he found a handgun in a backpack. Pacheco claimed ownership of the gun, and he was charged with firearms offenses.
In Jackson, the defendant was on the Boston Common celebrating the September 2010 Hempfest event (promoting the legalization of marijuana) by passing a lit marijuana cigarette around with companions. Two police officers saw Jackson and smelled the burning marijuana. While issuing civil citations, one of the officers observed a plastic bag in Jackson’s pocket that appeared to contain marijuana. Over Jackson’s objection, the second officer opened Jackson’s backpack and found numerous plastic bags with the corners torn off, which he believed to be consistent with drug distribution. A further search of the backpack revealed ten small plastic bags of marijuana containing a total of less than one ounce of the drug. Based on the items seized from the backpack, Jackson was charged with possession with intent to distribute marijuana and a corresponding drug violation in or near a school or park.
In their separate cases before different judges, each defendant moved to suppress the evidence seized as the fruits of an illegal search. Daniel’s motion was allowed, but Pacheco’s and Jackson’s motions were denied. Each losing party successfully sought leave to appeal, and through different procedural routes, all three cases arrived at the SJC and were argued on the same day.
Justice Duffly wrote for a unanimous Court in all three cases and held that each search was illegal. The Court’s holding and reasoning in Cruz served as an underpinning for the decisions. In Cruz, the Court had concluded that “the people’s intent [in passing the Ballot Initiative] was clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction.” 459 Mass. at 471. Accordingly, “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. . . .” Id. at 472.
Following the logic of Cruz, Daniel held that when co-defendant Tayetto surrendered two small bags containing less than one ounce, the matter should have ended there with, at most, a civil citation. “Absent articulable facts supporting a belief that either [Tayetto or Daniel] possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband.” 464 Mass. at 751-752 (emphasis added).
In Jackson, the Court further expanded on Cruz, ruling that a defendant’s social sharing of his marijuana cigarette did not amount to the crime of marijuana distribution and, therefore, did not create probable cause to arrest the defendant and conduct a search of his backpack incident to the arrest. In so holding, the Court again considered the impact of the Ballot Initiative on the statutes proscribing distribution of marijuana.
The Court in Jackson began by assessing the definitions in the distribution statute. “Distribute” meant “to deliver other than by administering or dispensing” and “deliver” meant “to transfer…a controlled substance from one person to another, whether or not there is an agency relationship.” Id. at 763, citing M.G.L. c.94C, §1. Although the word “transfer” was not defined, the Court afforded the word its ordinary and plain meaning: “[to] convey or remove from one place or one person to another, esp. to change the possession or control of.” Id. Consistent with the statute’s purpose of destroying “profit from the death-dealing traffic in drugs,” however, a transfer had to occur between a “seller and buyer…[to] constitute the crime of distribution,” Id. at 763-764. Accordingly, the SJC had previously held that a transfer “between joint possessors who simultaneously acquire possession at the outset for their own use…does not constitute distribution.” Id. at 763., citing Commonwealth v. Rodriguez, 456 Mass. 578, 584, n.8 (2010); Commonwealth v. Fluellen, 456 Mass. 517, 524-525 (2010) and Commonwealth v. Johnson, 413 Mass. 598, 605 (1992).
In Jackson, the SJC extended its earlier rulings in concluding that a defendant’s act of social sharing, even if the marijuana had not been jointly acquired by the sharer and the person with whom he shared, was “akin to simple possession” because it lacked “the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution.” Id. at 764-765. The Court also emphasized that the policy goals of the Ballot Initiative were to “direct law enforcement’s attention to serious crime and save taxpayer resources” as well as end vigorous pursuit of simple possessors such as social sharers. Id. at 764-765.
The Court also observed that if social sharing constituted distribution, “[an] ironic consequence would result: [The] Commonwealth may criminally charge each person who passed the marijuana cigarette to another with distribution…even though such individuals could not be charged criminally with possession…because the amount possessed was one ounce or less.” Id. at 762, n.3, citing and quoting Keefner, 461 Mass. at 515, n.4. Moreover, to interpret the Ballot Initiative to protect only a “solitary marijuana user” ignored the reality that “marijuana is often used in groups…[and] would undermine the clear intent of the voters to alter police conduct toward marijuana users.” Id. at 765-766.
Finally, in Pacheco, the SJC held that, in accord with the reasoning in Daniel and Jackson, because the Trooper had no reason to believe that the defendant possessed more than one ounce of marijuana and because the social sharing of marijuana was not illegal distribution, the Trooper lacked probable cause to believe that a crime had been committed. 464 Mass. at 772. Thus, the Trooper’s search of the car’s trunk was unjustified and,accordingly, Pacheco’s gun and the incriminating statements he made in custody were fruits of the poisonous tree and should have been suppressed. Id.
The Court’s Interpretation of the People’s Will: Broad Protection for Possessors and Users of the Decriminalized Amount of Marijuana but Limited Impact on Other Marijuana Offenses
In Cruz and the Daniel/Jackson/Pacheco trilogy, the Court has broadly effectuated the Ballot Initiative’s purpose of altering police-citizen interactions surrounding the possession and use of marijuana. The Court’s broad interpretation stems from its determination of the intent of the electorate:
[Because the] statute does away with traditional criminal consequences, permitting police to pursue simple marijuana possessors 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.
Cruz, 459 Mass. at 471-472.
All four cases involved aggressive police conduct towards simple possessors or users of marijuana where no other suspicious or criminal activity was occurring. This is precisely the type of police conduct that the Initiative was enacted to deter.
These decisions also dovetail with the well-established rule of probable cause: based on common sense, would a reasonably prudent person objectively believe that a crime had occurred or was occurring? See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964); Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). In the context of drug crimes, the SJC has noted that often a reasonably trained and prudent officer must witness a “silent movie” of criminal conduct in order for there to be probable cause. Santaliz, 413 Mass. at 242.
After the passage of the Ballot Initiative, possession of one ounce or less of marijuana is no longer a freestanding silent movie of criminal conduct. Rather, for probable cause to exist, an officer must observe more, such as a scene indicating the presence of a sizable quantity of marijuana, or a transfer between a seller and a buyer, or a person driving under the influence of marijuana. Similarly, an officer who seizes one ounce or less of marijuana during a traffic stop must treat the marijuana possession as akin to the traffic violation — a civil infraction. “As citizens, we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty” such as a search. Daniel, 464 Mass. at 751-752, citing and quoting Cruz, 459 Mass. at 469 n.16.
The Court’s interpretation of the Ballot Initiative also recognizes the reality of marijuana use. This was especially evident in Jackson where the Court refused to permit social sharing to be escalated from non-criminal possession into criminal distribution.
In the most-recent case dealing with the marijuana laws, the Court again made clear that the lower courts must scrutinize charges of possession with intent to distribute when no more than one ounce of marijuana has been recovered. In Commonwealth v. Humberto H., 466 Mass. 562 (2013), the police arrested a juvenile who had arrived at school tardy with five baggies of marijuana containing, in aggregate, less than one ounce of the drug. The police charged the juvenile with possession of marijuana with intent to distribute based on his possession of the five bags of marijuana, combined with the facts that he did not possess smoking paraphernalia and that he had an “agitated and defensive demeanor” when he was questioned by the school’s dean prior to the discovery of the marijuana. 466 Mass. at 563.
The Court held that this constellation of facts did not create probable cause to charge the juvenile with intent to distribute and that, accordingly, the Juvenile Court Judge had correctly dismissed the complaint. The Court emphasized that “judicial vigilance is especially important when a complaint charges an individual with possession of marijuana with intent to distribute where the amount of marijuana . . . possessed is below the one-ounce threshold. . . .” Id. at 570. Therefore, when probable cause to believe that a defendant’s intent to distribute is wanting, such a prosecution would “defeat the public’s purpose in voting for decriminalization because it not only treats simple possession…as if it were a serious infraction worthy of criminal sanction…but also treats a drug user as a drug dealer….” Id.
Despite the broad protection that the Court has provided to those who use and possess marijuana, the Court has refused to extend the application of the Ballot Initiative to certain other marijuana offenses. In Commonwealth v. Keefner, 461 Mass. 507 (2012), the SJC held that possession of one ounce or less of marijuana with intent to distribute remained a crime under M.G.L. c. 94C, §32C(a). And in Commonwealth v. Palmer, 464 Mass. 773 (2013), argued and decided the same day as the Daniel/Jackson/Pacheco trilogy, the Court held that the Ballot Initiative did not bar charges of criminal cultivation under M.G.L. c. 94C, §32C(a), even if the defendant had grown one ounce or less of marijuana and had done so solely for personal use.
Although the decision in Palmer was unanimous, there was a 4-3 split in reasoning, with the concurring justices essentially dissenting from the majority’s holding that it is a crime to cultivate one ounce or less of marijuana for personal use. The majority opined:
the [Ballot Initiative’s] specific amendment of § 34 [simple possession] and of no other criminal penalty provision in c. 94C — including, notably, § 32C(a) [cultivation] — is persuasive evidence that the Act was not intended to decriminalize any offense defined in c. 94C other than simple possession of one ounce or less of marijuana.
464 Mass. at 777, citing Keefner, 461 Mass. at 511-512.
Justice Duffly’s concurrence agreed that the district court had erroneously dismissed the charge because the complaint adequately alleged facts establishing probable cause that the defendant intended to distribute the marijuana that was being grown. However, the concurrence argued that, in light of the Ballot Initiative, the statute proscribing criminal cultivation should no longer be applied to an individual who grew one ounce or less of marijuana for personal use. 464 Mass. at 779-783. The concurrence reasoned that the statutes proscribing distribution deterred “profit from the death-dealing traffic in drugs…. Growing marijuana for personal use does not implicate such concerns… [and] arguably undermines the drug trafficking business, along with its attendant violence.” Id. at 781. The concurrence further reasoned that the majority’s narrow application of the Ballot Initiative to possession “[left] no noncriminal means…to obtain a decriminalized amount of marijuana,” and was not “sensible” because the Legislature sought to deter illicit sales of drugs on the street. Id. at 782. Finally, the concurrence noted that marijuana had been legalized (including a highly-regulated form of cultivation) for medicinal purposes. Id. at 783.
The series of cases from Cruz through Humberto H., but especially the Daniel/Jackson/Pacheco trilogy, have broadly redefined permissible police conduct in light of the Ballot Initiative. Together, the cases hold that, in the absence of evidence suggesting an intent to distribute, law enforcement officers who discover evidence of possession, use or social sharing of one ounce or less of marijuana do not have probable cause to believe a crime has been committed. Accordingly, law enforcement officers may not issue exit orders or conduct warrantless searches, such as a search of a person’s vehicle or backpack that would be justified if there were probable cause. Moreover, the Court has indicated it will scrutinize prosecution claims of probable cause where the quantity of marijuana seized is one ounce or less.
Notwithstanding these cases, the SJC has also held that the Ballot Initiative does not impact other marijuana crimes, including possession with intent to distribute one ounce or less and cultivation of one ounce or less, even if that cultivation is solely for personal use. However, three of the seven justices in Palmer indicated that they would have broadly interpreted the Ballot Initiative to decriminalize the cultivation of one ounce or less of marijuana for personal use. As more cases come down the pike, the Court will continue grappling with the changes wrought by the Ballot Initiative and the scope of the Initiative’s impact.
Joseph N. Schneiderman has an appellate practice and serves on the CPCS Criminal Appeals and Post-Conviction Panel, representing indigent clients in cases arising in western Massachusetts. Joe thanks Jeanne Kempthorne for encouraging him to write this article and dedicates the article to his friend and mentor Nadine Strossen.
 As recently as May 2008, the SJC had held that the odor of burnt marijuana alone could “supply probable cause to believe marijuana is nearby” and, therefore, that a crime was occurring. Commonwealth v. Garden, 451 Mass. 43, 48 (2008).
 The Court indicated that while there might have been other grounds that theoretically would have warranted a search – i.e., officer safety or probable cause to believe that Tayetto had been operating under the influence of marijuana – the record did not support (and may even have belied) such conclusions in the Daniel case. Id. at 752-757.
 The Ballot Initiative did not repeal, among others, statutes that criminalize “possession of more than one ounce of marijuana” or the “selling or manufacturing or trafficking” of marijuana. 464 Mass. at 762, citing Commonwealth v. Keefner, 461 Mass. 507, 510 (2012), and M.G.L. c.94C, §32L.
 See also Johnson, 413 Mass. at 604 (“Where two or more persons simultaneously and jointly acquire possession of a drug for their own use intending only to share it together, their only crime is simple joint possession.”) (Emphasis added.) The SJC also rejected a recent Appeals Court decision that assumed that social sharing constituted distribution, Commonwealth v. Lawrence, 69 Mass.App.Ct. 596, 602-603 (2007),noting that the Appeals Court had “relied on an expansive definition of distribution” unlike the “more [narrow]” definition in the Controlled Substances Act. Id. at 764, n.4, citing M.G.L. c.94C, §32C(a).
 The Court also emphasized that although possession of marijuana remains a crime under Federal law, social sharing of marijuana is treated as possession, not distribution, under Federal law. Id. at 765, n.5.
 The Court had warned and reiterated in Cruz that marijuana remains “unlawful to possess [and] any amount remains contraband.” Id. at 473.
 Justice Spina dissented from this holding and suggested that the Court had now “given juveniles willing to distribute marijuana in school a blueprint for minimizing accountability.” Id. at 580-581.
 The majority opinion was authored by Justice Botsford and joined in by Chief Justice Ireland and Justices Spina and Cordy. The concurring opinion was authored by Justice Duffly and joined in by Justices Gants and Lenk.
 See Commonwealth v. Craan, SJC-11436, argued on March 3, 2014, raising the questions of (1) whether the odor of unburned marijuana combined with the discovery of a small amount of marijuana justifies an exit order and (2) if the odor of burnt marijuana provides a basis for an exit order inasmuch as possession of any quantity of marijuana is a federal crime; Commonwealth v. Overmyer, SJC-11481, also argued on March 3, 2014, involving the propriety of a search when an officer smells unburned marijuana generally without regard to amount.