Police in Massachusetts may no longer perform a warrantless search of an automobile merely because an officer says that he smells burned or unburned marijuana. The state Supreme Judicial Court last week decided a pair of cases setting down these rules in light of the commonwealth's move toward marijuana decriminalization in a 2008 ballot initiative.

Anthony Craan was minding his own business driving on Gallivan Boulevard in Dorchester on June 11, 2010 when he was stopped at a roadblock. Craan showed no signs of being high or drunk, and he committed no traffic offense. The state trooper manning the roadblock smelled unburnt marijuana and directed Craan to a secondary screening area.

There troopers searched the car and found three Ecstasy pills along with a baggie of marijuana. The trunk contained a few rounds of .38 caliber ammunition but no gun. Craan was released and later charged with illegal possession of ammunition and drugs.

The state argued that the search was valid because the trooper was "duty bound" to check for more marijuana in the vehicle to prevent Craan from lighting up a joint behind the wheel after driving off.

"The mere possibility that more marijuana was present in the vehicle does not amount to probable cause to believe that the defendant had committed, or was committing, a crime, namely possession of more than one ounce of marijuana," Justice Barbara A. Lenk wrote for the court. "We are not persuaded by the commonwealth's suggestion that the search was permissible owing to the trooper's duty to ensure the safety of the roadways and to prevent the mere potential that the defendant could smoke marijuana while driving. Were we to conclude otherwise, it would follow necessarily that police could search any vehicle containing sealed bottles of alcohol, based on a potential risk that the driver could open a bottle and begin drinking while driving."

The court also rejected an attempt by the state to cite violations of federal law as a reason to search the vehicle. The court pointed out that the US Department of Justice has put out a memo indicating that it would leave marijuana enforcement to the states.

"Given the clear preference expressed in the 2008 initiative that police focus their attention elsewhere, federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana, especially where the federal government has signaled a lessened interest in prosecuting such conduct," Justice Lenk concluded.

Matthew W. Overmeyer was also stopped and searched over the smell of unburned marijuana. On May 19, 2012, Overmeyer's Volvo rear-ended a minivan, and a pair of Pittsfield police officers were sent to investigate. The smell of marijuana from the Volvo was overpowering, so Officer Sean Klink asked Overmeyer to hand over the key to the glove compartment. Overmeyer did so, and Officer Klink found a "fat bag" of marijuana.

Based on the strength of the smell, the officers believed there must be more in the car. The officers read Overmeyer his Miranda rights and searched the vehicle, finding more. Overmeyer was charged with possession with the intent to distribute. As with the Craan case, the smell of unburned marijuana did not justify the search.

"Such an odor alone does not constitute probable cause to believe that a vehicle contains a criminal amount of contraband or specific evidence of a crime, such that the automobile exception to the warrant requirement may be invoked," Justice Lenk wrote.

The justices ruled that police cannot determine the amount of marijuana by the strength of the odor as such judgments are inherently subjective.

"In sum, 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," the court concluded.

A copy of the Craan decision is available in a 60k PDF file at the source link below.