Marijuana Law

7:32 PM December 29, 2016

MA Legislature Delays Implementation of Recreational Marijuana Sales; Accountability Lacking.

By |December 29, 2016|Marijuana Law|0 Comments|

In a move that has upset liberals, conservatives, tokers and teetotalers alike, the Massachusetts Legislature passed a bill yesterday delaying the opening of retail marijuana shops by six months.

As you may recall, this November, Massachusetts voters approved a ballot question legalizing marijuana. The ballot question made possession legal as of December 15, and gave the Commonwealth until January 1, 2018 to devise a regulatory structure governing retail sales. Thus, pot shops were set to open in 2018, thereby eliminating the legal grey-area that now exists, in which the possession of MJ is legal, but the sale of it is not.

You may also recall that the majority of the State Legislature and our Republican Governor were opposed to legalization. Nonetheless, when the ballot measure passed, the onus was on that very Legislature to implement the new law. Almost immediately after the ballot question passed, legislators began floating the idea of a delay; yesterday, in an extraordinary legislative maneuver, they passed a law accomplishing just that.

What makes the Legislature’s actions extraordinary is the manner in which the delay was passed. Currently, the Legislature is not sitting in formal session. Laws proposed during formal session require the vote of legislators; that is, each State Representative and State Senator must vote yay, nay or abstain. These votes are a matter of public record. In an informal session, laws can still be passed, but in a different manner. There proposed laws are passed unless an objection is lodged. That is, support for the measure must be unanimous. As a result of this procedure whereby one legislator can block passage of a bill, informal sessions are generally used for non-controversial measures, such as the honorary naming of bridges. Informal sessions are generally less well attended, and do not require a roll-call vote.

Yesterday, with just three Senators and three Representatives present, a bill was introduced to delay the implementation of the marijuana retail sales, pushing the date back six months until the summer of 2018. None of the six legislators present objected, so the bill was passed, and is now on the desk of the Governor, who has previously expressed support for a delay.

A broad spectrum of people are upset because the Legislature’s actions seem to repudiate the will of the people as expressed by their vote on the ballot question. Massachusetts voters had ample time to familiarize themselves with the proposal, which included detailed timelines, and a majority supported it. The ballot measure, as passed, gave the Commonwealth one year to establish the regulatory mechanism to oversee recreational sales.

By advancing the delaying legislation in informal session, legislators shielded themselves from having to vote on the matter on the record. If they had been forced to do so, they likely would have had to answer difficult questions from their constituents, namely why they supported a measure that contradicted the will of the people. Furthermore, since a single objection would have caused the delay bill to fail, its passage meant that not one of the 40 State Senators or 160 State Representatives had the courage to object. Given that Democrats dominate the Legislature (34 Senators and 126 Representatives to be exact), yesterday’s actions showed that not one was willing to buck the political consensus and stand with the people. Had one done so, the measure still could have been re-introduced in formal session come 2017.

Given the extremely slow roll out of medical marijuana in Massachusetts, perhaps this delay comes as no surprise. The legislative maneuver executed yesterday shows that our representatives are prepared to contradict the will of the people, but only if they are shielded from public scrutiny for so doing; in effect, its a damning indictment against all of those who remained silent.

So, we are in for at least six additional months of a legal grey-zone; dealers rejoice, tax revenue delayed, and voters across the political spectrum feeling usurped. A most unwelcome last minute surprise from Beacon Hill.

  • SJC Marijuana Ruling
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    SJC Rules that Smell of Unburnt Marijuana DOES NOT Justify Warrantless Searches of Cars.

4:46 PM July 10, 2014

SJC Rules that Smell of Unburnt Marijuana DOES NOT Justify Warrantless Searches of Cars.

By |July 10, 2014|Criminal Justice, Marijuana Law|0 Comments|

The Supreme Judicial Court just released an important decision regarding the police’s ability to conduct warrantless searches of automobiles based on the smell of marijuana.

Some background: In 2008, Massachusetts voters decriminalized the possession of one ounce or less of marijuana. This meant that if you were caught with an oz. or less, you would be subject only to a $100 fine and would face no criminal charges. As a matter of Constitutional law, in order for police to conduct a warrantless search of a vehicle, they must have reasonable suspicion of criminal activity. In 2011, the SJC ruled that the smell of burnt marijuana alone was not sufficient to justify a warrantless search of a car. There, the SJC reasoned:

Given our conclusion that [the decriminalization law] has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.
. . .
[FN25] It is no longer reasonable for the smell of burnt marijuana alone to lead an officer to suspect that criminal activity is afoot, even if the odor is present in a so-called “high crime” neighborhood.

Commonwealth v. Cruz, 459 Mass. 459, 472, 945 N.E.2d 899, 910, 2011 Mass. LEXIS 171, 27 (Mass. 2011)

Whereas the Cruz case dealt with the smell of burnt marijuana, it left unresolved the question of what police could do regarding the smell of unburnt marijuana. That question was resolved yesterday in Commonwealth v. Matthew W. Overmyer. There, the defendant was involved in an accident and responding officers noticed a strong smell of unburnt marijuana in his car. The defendant admitted that he had some marijuana in the glove compartment, and gave the police access to it. However, after the police removed that marijuana, they still detected a strong odor of marijuana in the car. After applying some pressure on the defendant, he admitted that there was more marijuana in the car. Police commenced a search of the car and found a backpack containing large freezer bags containing smaller baggies of marijuana. As a result, the defendant was charged with possession with intent to distribute.

The case quickly made its way to the SJC; the Commonwealth sought the Court’s opinion as to whether the smell of unburnt marijuana was sufficient to trigger a “reasonable suspicion of criminal activity” thereby justifying warrantless auto searches. The Court held that it was not:

Although the odor of unburnt, rather than burnt, marijuana could be more consistent with the presence of larger quantities, it does not follow that such an odor reliably predicts the presence of a criminal amount of the substance, that is, more that one ounce, as would be necessary to constitute probable cause.

Commonwealth v. Matthew W. Overmyer

Thus the SJC held that the strength of the odor of marijuana was too subjective an indicia alone for an officer to determine whether a criminal (over 1 oz.) amount was present.

“We are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, weather burnt or unburnt.”

Commonwealth v. Matthew W. Overmyer

This ruling is a victory for advocates of marijuana law reform. Given the SJC’s rulings subsequent to the 2008 decriminalization measure, this attorney predicts that legalization, as in Colorado and Washington, will soon render the 1 oz. rule moot.

Full Decision: Commonwealth v. Overmyer [PDF]