The rapid liberalization of Massachusetts marijuana policy—including decriminalization of possession of less than an ounce of marijuana and legalization of medical marijuana—has had dramatic consequences for the Massachusetts law regarding search and seizure, offering even some defendants whose conduct has not become legal an unexpected avenue of defense. We have written here before about the Supreme Judicial Court’s holdings that neither smelling marijuana (in a necessarily unknown quantity), nor seeing marijuana in an amount estimated to be less than an ounce, constitutes probable cause for a warrantless search following decriminalization of possession of less than an ounce of the drug. The SJC has now made it clear that the medical marijuana ballot initiative, too, changes the landscape for law enforcement seeking to search for and seize marijuana. The Court’s April 27, 2015 decision in Commonwealth v. Canning held that following passage of that initiative, “a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime.” To be entitled to a valid warrant, the officer must also establish that the person responsible is not registered to cultivate the marijuana for medical use.
This decision will have considerable practical significance for many (though by no means all) defendants currently facing prosecution for marijuana cultivation. The affidavit in Canning, the SJC stated, reads “[f]rom start to finish . . . as though the [medical marijuana] act did not exist.” It clearly established probable cause to believe that cultivation of marijuana was taking place, but failed entirely to address whether the cultivation occurring at the defendant’s property was legal or illegal in light of the change in the law, and therefore, according to the SJC, did not establish probable cause to believe that the defendant was committing a crime. Because the warrant had issued without probable cause, the evidence seized pursuant to it—including 70 marijuana plants—was suppressed. In many drug cases, charges are dismissed after a court suppresses evidence. In others, the prosecution may still have enough evidence to proceed to trial, but with a weakened case. It seems very likely that the detective in Canning is only one of many who did not immediately change his practice when requesting a warrant to include facts establishing absence of authorization to cultivate marijuana. The SJC’s reasoning also seems to apply equally to a case of possession of marijuana, in which police must now show that the possession is both of a quantity over an ounce (a showing not necessary in a cultivation case) and is not allowed by the medical marijuana act. I would expect to see facts warranting suppression in quite a few cases.
The SJC provides law enforcement with a fairly clear roadmap to avoid suppression of evidence on these grounds in the future. Beginning in February 2015, medical marijuana users are required to formally and electronically register with the Department of Public Health, and officers will be able to use that list to easily confirm whether an individual is registered and include that information in search warrant affidavits. The SJC also notes that other facts (such as a controlled buy or evidence that the number of plants exceeds that allowable under the medical marijuana act) might provide probable cause to believe that cultivation is unlawful, even in the absence of registration information. It seems likely that these observations would similarly support a showing that possession is not a lawful exercise of rights under the medical marijuana act. That said, Massachusetts criminal defense attorneys should now be carefully examining warrant affidavits for an opening to raise this issue.
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