thekingofNY
Cannasseur
This should apply for all states with decriminalized laws, I think.
Granted it hasn't been taken to court yet, just a defense attorney making the statement, however it makes logical sense. When you get a civil ticket for speeding or running a stop sign, its not probable cause to search a car, why should simple marijuana possession be.
Article:
Last week a state trooper stopped Robert Adamuska Jr. in Charlton for speeding, and after encountering an “odor of fresh marijuana” asked Mr. Adamuska if he “had anything” in the car.
“Ya,” Mr. Adamuska allegedly answered. “A pound of weed under the passenger’s seat. I also have a quarter in my pants.”
The trooper then searched the car and found a pound of marijuana under the seat, and half an ounce in Mr. Adamuska’s pocket.
Initially, I thought Mr. Adamuska was smoking too much of his own stuff or that he had badly misread the state’s “Sensible Marijuana Law,” which has decriminalized less than an ounce of the drug.
It is quite common for people to misread the law, or to not have read it at all. Some assume for example that if they are smoking a joint, and the police stop them, it’s because the officer wants to party with them.
This appears to be what happened to British author, editor and political commentator Andrew Sullivan in September, when he was stopped by a park ranger while smoking marijuana on a Cape Cod beach. The ranger asked him if he had any other joints and Sullivan pulled another from his wallet.
The ranger was not in the mood, and, more significantly, the beach was federal property, which means the federal law governing marijuana — a Class B misdemeanor punishable by up to 6 months in jail and a $5,000 fine — trumped the new Massachusetts law.
Mr. Adamuska, however, may have fessed up to his marijuana possession not because he misread the law but because he might have assumed that he and his car would have been searched anyway. If that was his assumption, he may have been right.
Although some people believe that “odor-based” searches are questionable, if not illegal under the new Massachusetts marijuana law, police officers continue to use the presence of a “fresh” or “burnt” marijuana smell as probable cause to conduct a search of a person or a vehicle.
In October, for example, the car in which three men from Lynn were driving was stopped in Sturbridge because its rear license plate lights were out.
About a pound of marijuana was found in the car, and the men were charged with possession and intent to distribute the drug. The car was searched based on the trooper’s assertion that a can of Axe body spray had been used to apparently mask the odor of marijuana.
Similarly in November, a Worcester woman and a Revere man were pulled over for excessive window tint in Sturbridge, arrested and charged with allegedly having 15 grams of cocaine and more than $48,000 cash in their possession. Worthwhile bust, you say?
Maybe, but does it matter that the drug and cash were found when their vehicle was searched based on the officer’s assertion that “burnt marijuana” smell was coming from the passenger compartment?
Kathleen M. McCarthy, a criminal defense lawyer in Boston, writing on her office blog earlier this year, argued that while the courts have upheld such searches in certain situations in the past, the grounds for them have been eroded by the Massachusetts marijuana law, which she said equates pot citations to traffic citations.
She believes one could make the argument that similar to a traffic violation, a marijuana violation provides a basis to issue a civil citation, not to conduct a 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,” she wrote.
Ms. McCarthy also argued that an amount of marijuana cannot be determined based on a smell of the substance and that an odor of marijuana is more likely to be indicative of a noncriminal infraction of possessing an ounce or less of the drug.
Her argument sounds reasonable and it should give some, and I emphasize “some” (after all, she is a defense lawyer), comfort to recreational users such as the Jill Lane resident in Sterling who has been written up a couple of times in the Sterling police log this year as the “neighbor” who “smokes marijuana every night at the same time.”
http://www.telegram.com/article/20091202/COLUMN44/912020374
Granted it hasn't been taken to court yet, just a defense attorney making the statement, however it makes logical sense. When you get a civil ticket for speeding or running a stop sign, its not probable cause to search a car, why should simple marijuana possession be.
Article:
Last week a state trooper stopped Robert Adamuska Jr. in Charlton for speeding, and after encountering an “odor of fresh marijuana” asked Mr. Adamuska if he “had anything” in the car.
“Ya,” Mr. Adamuska allegedly answered. “A pound of weed under the passenger’s seat. I also have a quarter in my pants.”
The trooper then searched the car and found a pound of marijuana under the seat, and half an ounce in Mr. Adamuska’s pocket.
Initially, I thought Mr. Adamuska was smoking too much of his own stuff or that he had badly misread the state’s “Sensible Marijuana Law,” which has decriminalized less than an ounce of the drug.
It is quite common for people to misread the law, or to not have read it at all. Some assume for example that if they are smoking a joint, and the police stop them, it’s because the officer wants to party with them.
This appears to be what happened to British author, editor and political commentator Andrew Sullivan in September, when he was stopped by a park ranger while smoking marijuana on a Cape Cod beach. The ranger asked him if he had any other joints and Sullivan pulled another from his wallet.
The ranger was not in the mood, and, more significantly, the beach was federal property, which means the federal law governing marijuana — a Class B misdemeanor punishable by up to 6 months in jail and a $5,000 fine — trumped the new Massachusetts law.
Mr. Adamuska, however, may have fessed up to his marijuana possession not because he misread the law but because he might have assumed that he and his car would have been searched anyway. If that was his assumption, he may have been right.
Although some people believe that “odor-based” searches are questionable, if not illegal under the new Massachusetts marijuana law, police officers continue to use the presence of a “fresh” or “burnt” marijuana smell as probable cause to conduct a search of a person or a vehicle.
In October, for example, the car in which three men from Lynn were driving was stopped in Sturbridge because its rear license plate lights were out.
About a pound of marijuana was found in the car, and the men were charged with possession and intent to distribute the drug. The car was searched based on the trooper’s assertion that a can of Axe body spray had been used to apparently mask the odor of marijuana.
Similarly in November, a Worcester woman and a Revere man were pulled over for excessive window tint in Sturbridge, arrested and charged with allegedly having 15 grams of cocaine and more than $48,000 cash in their possession. Worthwhile bust, you say?
Maybe, but does it matter that the drug and cash were found when their vehicle was searched based on the officer’s assertion that “burnt marijuana” smell was coming from the passenger compartment?
Kathleen M. McCarthy, a criminal defense lawyer in Boston, writing on her office blog earlier this year, argued that while the courts have upheld such searches in certain situations in the past, the grounds for them have been eroded by the Massachusetts marijuana law, which she said equates pot citations to traffic citations.
She believes one could make the argument that similar to a traffic violation, a marijuana violation provides a basis to issue a civil citation, not to conduct a 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,” she wrote.
Ms. McCarthy also argued that an amount of marijuana cannot be determined based on a smell of the substance and that an odor of marijuana is more likely to be indicative of a noncriminal infraction of possessing an ounce or less of the drug.
Her argument sounds reasonable and it should give some, and I emphasize “some” (after all, she is a defense lawyer), comfort to recreational users such as the Jill Lane resident in Sterling who has been written up a couple of times in the Sterling police log this year as the “neighbor” who “smokes marijuana every night at the same time.”
http://www.telegram.com/article/20091202/COLUMN44/912020374
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