As I am sure most people involved in the criminal justice system are aware the legislature recently changed the law relative to an individual charged with possession of marijuana that is one ounce or less. Possession of an ounce or less of marijuana had been decriminalized. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. Under the new law, an individual found to be in possession of marijuana simply receives a citation.
Experienced and successful defense attorneys must strongly argue that an odor of marijuana, whether burnt or fresh, does not provide probable cause for the police to search an individual, a car or a home. An experienced attorney would file a motion to suppress any marijuana and related evidence i.e., a scale, baggies and money, that the police confiscated at a result of search a person, car or home because of an odor of marijuana. Although prior to the decriminalization of marijuana, in certain situations the Courts held that the odor of fresh marijuana provided reasonable suspicion to search, that rule does not comport with the proposition that marijuana citations should function like traffic citations. See Commonwealth v. Garden, 451 Mass. 43 (2008).
If you have been arrested and charged with possession of marijuana, trafficking marijuana, possession of marijuana with intent to distribute in a school zone and/or distribution of marijuana and the search was based on an odor of fresh or burnt marijuana, an experienced Massachustts defense attorney must file a motion to suppress evidence. A reasonable line of argument is that similar to the fact that evidence of a traffic violation provides a basis to issue a civil citation not to search, even if the court believes that a police officer possessed the training and experience to smell marijuana, that would not provide a basis to search a car, a person or a home. Clearly, an amount of marijuana cannot be determined based on a smell of the substance. Therefore, an odor of marijuana is more likely to be indicative of a non-criminal infraction of possessing an ounce or less of marijuana. Accordingly, the police must not be permitted to presume a criminal offense based simply on an odor of marihuana. The smell of fresh or burnt marihuana, without more, does not suggest that a person is committing or about to commit a crime and does not provide probable cause to search under the new law.