The Supreme Judicial Court today, February 27, suppressed a search that was triggered by police observing “about an ounce” of marijuana in a car they had stopped for a broken headlight (Commonwealth v. Sheridan, No. SJC-11543). Following the decriminalization of marijuana possession in small amounts (under an ounce) by the voters, the SJC had held, in two earlier cases, that the smell of burnt marijuana, even coupled with other suspicious facts (such as the stop being in a high-crime area or furtive or nervous behavior by the person stopped), did not establish probable cause to search a vehicle.
In this case, the police saw the marijuana on the floor of the defendant’s van. The SJC found no difference between smelling marijuana, which gave no clue as to the quantity they might find, and seeing marijuana that they estimated to be a non-criminal quantity. In neither case did the police have probable cause to search based on evidence of a civil infraction.
The judge in the trial court agreed that the police lacked probable cause based on any criminal activity. However, he held that, despite the fact that possession of the marijuana was not a crime, it remained forfeitable under the law and so the police could go into the van to seize it. The SJC rejected this reasoning, while agreeing that the police have the authority to seize marijuana:
“In evaluating this argument, it is important to distinguish an officer’s power to seize the marijuana from the officer’s power to make an entry into the vehicle to effect that seizure. We agree with the District Court judge’s determination that any quantity of marijuana is ‘contraband’ and is subject to seizure. We disagree, however, with the judge’s conclusion that, to effect that seizure, the officers were entitled to make an entry into the vehicle that — lacking probable cause — they otherwise would be prohibited from making.”
The Commonwealth argued that because the marijuana was in “plain view,” under the plain view doctrine (allowing seizure of evidence in “plain view”) the police could seize it for forfeiture. But the SJC rejected this, noting that one requirement of the plain view doctrine is that “the officer have a lawful right of access to the [marijuana].” Because the police did not have probable cause to search the van, they did not have a lawful right of access. Cases relying on the plain view doctrine involved either evidence observed in the course of an otherwise-lawful intrusion and search, or the evidence itself, observed before a search, gave rise to probable cause to search. Neither of these circumstances justified the police in this case entering the van to seize the marijuana.
The SJC also rejected the argument that the intrusion was “limited” and analogous to requesting the defendant’s license and registration. The SJC noted that no case permitted the police to enter the car to search for license or registration, unless they have reasonable grounds to fear for their safety if they do not order the occupants out of the car, and must then search for documents themselves. Finally, the SJC rejected a non-criminal “administrative search” rationale, noting that such searches involve commercial activities of “closely-regulated” industries.
The SJC noted, rightly, that allowing the police to search a vehicle or a house based on noncriminal marijuana possession, relying on the right of seizure, would effectively nullify the probable cause requirement for searches. Had the trial court’s decision been upheld, an entire class of noncriminal searches would have been made legal, contrary to the Fourth Amendment and the Massachusetts constitution. For those concerned about the police’s ability to enforce forfeiture, the SJC noted that there are alternatives: they could have requested the defendant to hand the marijuana over to them, or they could have issued a summons and sought forfeiture in civil proceedings. The course they took, and the justification of the trial judge, would have effected an end-run around the constitution.
For more information on this subject, see our previous blog post: “Change in Federal Law Regarding Marijuana Enforcement is Important for Massachusetts”