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Leonard Angiulo: MA Court Takes Hit of Justice in Marijuana Rulings

Monday, April 08, 2013


There are people from all walks of life who were just stoked when the possession of under an ounce of marijuana was decriminalized in Massachusetts.  Those that enjoy a toke or two should be aware of some recent Supreme Judicial Court rulings issued on April 5, 2013 that make their life a little easier. 

The first case on the list, which also may have the biggest impact, is Commonwealth v. Kiiyan Jackson.  The facts include three individuals attending what is known as either “Hempfest” or “The Boston Freedom Rally”, which occurs every September on Boston Common as a forum for Marijuana Advocacy.  Apparently, the defendant in the case was partaking in a marijuana cigarette with two of his friends when he was arrested.  The Commonwealth asserted that the passing of the joint between the parties constituted a “distribution” of marijuana and, therefore, was a crime.  The court disagreed and specifically found the term “distribution” included in the statute criminalizing such behavior was meant to target the business of drug sales rather than social sharing.

Social sharing

Distinguishing social sharing of marijuana as non-criminal and commercial sale of less than one ounce of marijuana as criminal has significant long term impact for criminal defense in Massachusetts.  One of the biggest effects will be in the area of search and seizure law because an officer can only arrest and search you upon probable cause that you are committing a crime.   The question of what evidence will meet that test continues to change as the Court evaluates cases.

An example of this impact is found in the case of Commonwealth v. Antonio L. Pacheco, also issued Friday, April 5, 2013.  An officer approached a car in a State Park that, to paraphrase, was full of people and stunk like burnt weed.  After determining that occupants of the vehicle had been sharing marijuana the officer ordered everyone out of the car and found nothing but a bag containing less than an ounce of pot.  The problem came when he opened the trunk and found a handgun in a backpack.  In order for an officer to search a car without consent, the Commonwealth must show both the existence of probable cause to believe the automobile contains contraband and some emergency or other circumstance that justify proceeding without a warrant.  In this case the court found the officer had no probable cause to proceed because a) the odor of freshly burnt marijuana itself does not present evidence of a crime, b) the surrendering of a non-criminal amount of marijuana doesn't either, and c) proof that people in this case were sharing marijuana isn't evidence of distribution of marijuana.  The gun was ruled inadmissible because it was discovered as a result of an illegal search.

Decriminalization has its limits

The court also issued two rulings on April 5 that show the freedoms afforded by the decriminalization of less than an ounce has their limits.  In Commonwealth v. Clint Daniel the court affirmed that operation under the influence of marijuana was still a crime.  Reading between the lines, this means that an officer who thinks that a driver is under the influence of marijuana would be legally permitted to investigate based on that belief.  That investigation would likely proceed consistent with a drunk driving case and start with a conversation at the driver side window.

The final case to discuss comes to the unsurprising conclusion that its still illegal to grow your own, but is in some ways the most interesting case of the bunch.  Commonwealth v. Kenneth J. Palmer discusses a person who was growing some marijuana plants in his home where the total weight was found to be less than an ounce.  Importantly, there was evidence that the defendant was growing those plants for later commercial distribution.  The majority ruled that the question wasn't the weight but the act of growing that made the difference and found the decriminalization statute does not make cultivation of less than an ounce a civil offense.

The most interesting part of Commonwealth v. Kenneth J. Palmer is the exceptionally well authored concurring opinion.  In it, a few justices joined together to say that the existing statutes are not designed to criminalize the growing an ounce or less for personal consumption.  While this conclusion is not tested by any existing cases the concurrence drew its findings from the plain language of the laws as well as the policy statements of drug control measures designed to target those in the business of drug dealing.  The concurrence pointed out that allowing marijuana users to grow their own would arguably undermine the drug trafficking business and the violence related to it by providing a source outside of those channels.  Again, while this hasn't been proven by an existing case it sounds something similar to letting people homebrew during prohibition. 

As mentioned in Commonwealth v. Kiiyan Jackson, these rulings are directed at serving the purpose of legislation for which the citizens of the Commonwealth have voted.  That purpose was to decriminalize less than ounce of marijuana, to reduce the consequences of possessing small amounts of the drug, to direct law enforcement's attention to serious crime and to save taxpayer resources that was, until now, targeting simple possession of marijuana. I think the only complaint people may have is that it would have been a lot cooler if the rulings had come out on 4/20.  But I could be wrong. 

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] or through the firm's website at www.gskandglaw.com.


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