Supreme Court Will Hear Arguments About Cops Searching People Just Because They Smell Pot

The Suffolk DA’s office thinks officers should be able to rely on federal law when it comes to probable cause.

Marijuana Photo via

Marijuana Photo via

Lawyers representing a non-profit group that supports the legalization of marijuana filed an “amicus curiae” brief in the state’s highest court, arguing that police officers shouldn’t be allowed to rely on federal prohibition laws in order to stop and search people if they detect the smell of pot.

In their brief, submitted on behalf of members of the National Organization for the Reform of Marijuana Laws (NORML), attorneys Michael Cutler and Steven Epstein cited statewide decriminalization laws, and a prior Supreme Court ruling, to back up their argument.

The brief was filed in response to an appeal by Suffolk County prosecutors who argued, in the case of the Commonwealth vs. Anthony Craan, that federal marijuana regulations trump state laws in regards to possession, and suspicion of possession, of the drug.

In 2011, the SJC ruled that the smell of marijuana doesn’t justify a probable cause for a police search or traffic stop, in the case of the Commonwealth Vs. Cruz. The ruling was largely based on the voter-approved change in the state’s laws in 2008.

Back then voters “overwhelmingly” approved a ballot initiative that limits anyone caught with less than one ounce of marijuana to a civil infraction or fine, rather than arrest and criminal prosecution.

Not long after the SJC decision, however, Craan was arrested during a routine sobriety checkpoint stop in Dorchester, when a State Trooper claimed he smelled “unburnt” marijuana in Craan’s car. Craan also admitted to officers that he had “just smoked,” and revealed he had a baggy of marijuana in his glove box.

After being summonsed to court on criminal charges—the search of Craan’s car also allegedly uncovered Ecstasy and bullets to a gun—the evidence against him was suppressed based on the prior SJC ruling that officers can’t solely rely on the smell of marijuana in order to do a pat down and subsequent vehicle check.

However, the Suffolk District Attorney’s office, unsatisfied with the outcome of that court decision and suppression of their evidence against Craan, filed an appeal in the state’s highest court, claiming the arrest was justified under federal law, which prohibits the possession of any amount of pot. They also said the search was based on the fact that Craan admitted that he had recently smoked marijuana, which would have implied he was possibly operating under the influence.

“[The trooper] had probable cause to believe that evidence of a federal crime was in the defendant’s car.  Although possession of less than an ounce of marijuana had been decriminalized in Massachusetts, it remains a federal crime,” according to documents filed by Suffolk County prosecutors. “Even if [the officer] did not have probable cause to believe that the defendant was operating his car under the influence of marijuana, he nonetheless could permissibly search the car for additional marijuana.  When he smelled and saw fresh, unburned marijuana, he had probable cause to believe that there was additional marijuana in the car.”

That argument didn’t sit well with Epstein and Cutler, though.

“Allowing state law enforcement to ignore state decriminalization law—by relying on federal prohibition law— violates fundamental constitutional principles of the separation of powers among the branches of state government, and of federalism’s respect for state sovereignty,” the attorney’s claim.

Cutler, in a phone interview, said he won’t appear in court, but the group’s stance on the issue, in opposition to the Commonwealth’s appeal, will be noted by the SJC.

“The mere smell [of marijuana] raises only an outside possibility that someone has more than an ounce. The court rules that a mere smell is not reliable evidence that you have more than an ounce on you,” he said. “The Suffolk prosecutor is unhappy with that decision, even though decriminalization was carried by Boston by 72 percent [in 2008].”

Cutler said if the SJC were to side with the Commonwealth on the issue, it would enable federal law to justify police searches otherwise illegal under state regulations. “When it comes to state laws, the feds have agreed to back off ,” he said, referencing the Obama administration’s vow to keep their hands off of the shift in laws applicable to marijuana legalization at a state level. “The SJC has interpreted the law that if you do shake someone down, then that evidence goes out the window. You can’t use federal law to bypass the state law. [The Cruz decision] is the law—like it or lump it, it’s the law.”

Cutler said arguments in the case will be heard sometime in early February, and a decision will likely be handed down a few months later.

You can read the briefs and arguments in the case below, and check out the brief filed by Cutler and Epstein here.

Comm Brief

Anthony Cra an Brief

  • Fairuse

    If 1oz or less = civil infraction under state law and evidence of a civil infraction cannot be used as probable cause OR reasonable suspicion for search then cannabis odor cannot be cause for search as odor does not indicate quantity. SCOTUS will send this back to the lower courts then application of the “Equal Protection Clause” may be applied. If SCOTUS rules for the Commonwealth then all decrim to CI could be nullified.

    • Guest

      SCOTUS is not involved. This is the Massachusetts Supreme Court, again.

      • Fairuse

        My mistake, State Supreme Court.

    • Duncan20903

      Fairuse there’s absolutely no basis for speculation that there’s any danger of the 2008 law is going to be “nullified”

      I mean c’mon, didn’t you know that 40 years ago the State of Oregon became the first State to decriminalize the petty possession of cannabis? The petitioners are just talking out of their [expletive deleted]

      • Fairuse

        Duncan, I was speaking In the “what if”. I don’t believe in decrim being struck down but sure as s**t there are hotshot atts. and legislators that would use a ruling for the Commonwealth as a leverage point dragging progress to a halt. What are your thoughts on the effects of a ruling for or against the commonwealth?

        • Duncan20903

          My thoughts are that if it were to happen that it would be appealed, overturned, and the Massachusetts State Supreme Court would be the laughing stock of the national legal community.

          I guess I thought that you might infer that because Oregon has had decrim for four DECADES that you would infer that the law has been tested. They’ve got “hotshot atts” in Oregon too. Heck, the Oregon Legislature re-criminalized in 1997, but the Oregon voters “just said no” and kicked that 1997 law to the curb on Election Day 1998. By a margin of just under 2 to 1 so people just can’t argue that lawmakers are always representing the interests of their constituents.


          Something that I find simply amazing is how many people believe that the Feds can dictate State law. But I guess that’s because of the widely mistaken belief that the law is a game of cards with all that nonsense about “trumping” State law. “The Official Rules According to Hoyle” is not a law book. There are only limited circumstance where the Feds can force a State to repeal a State law. But it really is only recently that I’ve become aware of the depths of that stupidity and realized that most people think that the State laws proactively “legalize” cannabis rather than passively withdraw State level penalties. This ignorance wouldn’t be bothersome except for the fact that the ignorant act as if they have a clue.

          These laws aren’t going anywhere because they aren’t unconstitutional. The States are entitled to have these laws. Just because most people think that State law is subject to Federal approval is irrelevant. Most people can’t even find Canada if you show them an unlabeled map of North America.

  • Matson Law

    Ridiculous. The Suffolk County DA doesn’t prosecute federal law violations. And the 2nd & most recent Cole memo makes it clear the Fed’s intent to not prosecute what is legal and not criminal under state law.
    And the Mass SJC has been perfectly clear about Cruz, and subsequent decisions like Pacheco.

  • Duncan20903

    Am I the only living person that has read the SCOTUS ruling in Gambino v United States of America, 275 U.S. 310 (1927)?

    Brief summary: The New York State Legislators repealed the NY State laws inspired by the idiocy of the 18th Amendment in 1923. That made drinking alcohol legal as far as the NY State criminal code.

    Some of the agents of NY State disapproved and subsequently caught Mr. Gambino and a couple of his henchmen hauling bootleg drinking alcohol. The NYS LEOs turned their prisoners over to Federal agents. The bootleggers were then prosecuted and convicted in the Federal system.

    Doesn’t that sound familiar?

    The SCOTUS reversed the convictions. In their ruling they plainly state that because what the bootleggers were doing was legal in NYS the NY LEOs had no probable cause for detaining the petitioners. The vote was unanimous.

    You don’t have to take my word for it. Read it for yourself.


    No sunshine, State law doesn’t have to match Federal law. Did you know that Massachusetts voters approved the repeal of their State Laws inspired by the idiocy of the 18th Amendment on Election Day 1930?

  • Duncan20903

    It’s genuinely astounding that there are people gazing at the horizon expecting the imminent arrival of the Federal cavalry riding in to strike down State laws that re-legalize cannabis. It’s even more astonishing when Californians do so after 17 years and 4 trips to the SCOTUS for the Compassionate Use Act (CUA) with that law still in force.
    The Feds have given their answer to I-502 and A-64…there’s nothing that they can do about those laws. Yes, the Feds can enforce their laws using their resources. But Californians have seen that first hand. The Feds haven’t been able to shut down the CUA
    Federal preemption? Hasn’t anyone wondered why the only cases using that lame argument have been filed by State and Local authorities?

    The rulings in City of Garden Grove v Felix Kha, 157 Cal. App. 4th 355; 68 Cal. Rptr. 3d 656 (2007) and County of San Diego v San Diego NORML 165 Cal. App. 4th 798; 81 Cal. Rptr. 3d 461 (2008) and State of Arizona v Valerie Okun were all prosecuted using that theory, and none of the petitioners got a ruling in their favor. Not even in the local Courts which traditionally are likely to favor local authorities. Neither case could find any Federal Court that had any interest in hearing their lame arguments.

    If you’re going to insist on waiting for the Feds to strike down these laws you should pack some sandwiches, a couple of novels, and pitch a tent. You’re going to be waiting a long, long time.

  • Justin Rutkowski

    I would say point and case bring Arizona vs the federal government when it was ruled that federal laws where not for state officials to handle.

    • Duncan20903

      If you’re referring to the unconstitutional Arizona law (SB-1070) that attempted to regulate immigrants that case isn’t relevant to the instant controversy. It’s black letter law that immigration is an enumerated power of the Federal government. Neither are the petitioners arguing that they have a right to enforce Federal law. They’re simply trying to use the existence of Federal law a a way to avoid the limitations of their employers rules so they can enforce the laws in the way they prefer when they’re supposed to be agents of the State of Massachusetts, not of their own personal beliefs.

      The next time you hear one of these LE clowns say that they don’t write the law, they just enforce them you can point to the instant controversy and point out that they’re bald faced liars.

    • Bri

      The only time a federal law can overrule a state law is on matters of constitutionality. The federal government might try and disagree, but I assure you, the supremacy clause was only designed to overrule the states on constitutional rights issues.

  • TBK Revolution

    How can anyone prove that they smell something? And how many things can maybe possibly smell like weed (especially to someone who is not supposed to be around it like the cops) enough that it is ‘close enough’ for ‘probable cause’?

    • Bri

      If you ever did get brought up on charges it would be fairly simple to get this thrown out. You would simply have to ask if the police officer in question received “smell” training for the scent of marijuana and to produce a record of any training.

  • Stephen Weber

    “.. the smell of marijuana doesn’t justify a probable cause for a police search or traffic stop..” because cannabis itself isn’t the only thing with that fragrance; there are quite a number of different legal products intended, designed and made to smell like cannabis, including incense, perfume, candles and other fragrants.