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Angiulo: Massachusetts Motor Vehicle Stops and the Odor of Marijuana Continued

Monday, September 28, 2015


Most people can recognize the smell of burning marijuna. You can imagine that an even higher percentage of the men and women in blue can pick up the scent of weed.  It's not unreasonable to think that they could even detect the odor emanating from the car infront of them as they are driving.  The question is what can and what should law enforcement do about it in the event that they do?  

The odor of marijuana coming from a moving car in traffic presents two very distinct questions with seperate legal analyses.  First, is the issue of the odor of burning marijuana alone.  In that situation, the only violation of law is a civil infraction if the amount is less than an ounce. If there is an odor coming from a moving car and the vehicle is operating erratically then there may be a criminal case.  In such a situation, the officer may then have a basis to investigate for operation under the influence of drugs.  

In the recent case of Commonwealth v. Rodriguez from the Massachusetts Supreme Judicial Court, the difference between these situations is laid out.  The officer in Rodriguez was travelling behind a car that had an odor of burnt marijuana coming from it.  In this case, there were no traffic violations observed and the officer stopped the car based on that odor alone.  Sure enough, the driver of the vehicle was smoking what is referred to as a “marijuana cigar” and the officer confiscated the item.  This case made it to court because after the car was stopped, it was searched, and some illegal pills were found.

As was his right, the defendant filed a motion to suppress alleging the actions of the police were unconstitutional.  The question for the Supreme Judicial Court was whether, or not, the odor of burnt marijuana, alone, provided sufficient justification for the stop of the car.  

 For the court, the answer to this question started with a look at the legal structures surrounding car stops. Any time law enforcement pulls over a motor vehicle they are conducting a seizure as considered by the Federal and State Constitutions.  As a result, the court will suppress any evidence seized unless the Commonwealth can establish the officers were justified in their actions.

In Rodriguez, the court ruled that police could not stop cars just because of the smell of burnt marijuana alone. Interestingly, when they did this they also reviewed an old case, Commonwealth v. Garden that had previously declared the odor of burnt marijuana provided probable cause that marijuana would be nearby. This case had been used for years to justify motor vehicle stops and searches and in Rodriguez the court chose to reconsider this position.  The justices went on to observe that there were a number of ways a person could smell like marijuana, including having been in in a place where the substance was being consumed.

The court went on to observe that, at best, the odor of burnt marijuana alone provides merely reasonable suspicion and not probable cause for non-criminal possession of the substance.  It followed, therefore, that the highly invasive and embarrasing event of a motor vehicle stop was not justified by odor alone.  Of note in the court's analysis is that the lack of any moving violations meant this officer's investigation was focused only on the civil offense of marijuana possession.  According to the court this was precisely the type of investigation that the decriminalization of marijuana was supposed to prevent.  Not because officers have to disregard their common sense, but because the policy goals of the law included directing law enforcement's attention to serious offenses and to save tax payer resources for fighting those crimes.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] 


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