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