Massachusetts voters voted to allow the
medical use of marijuana. Under this initiative, it will be legal
for people with a doctor's prescription to purchase and possess
marijuana for medical use. At this time, Massachusetts has not
passed regulations to allow the sale of marijuana and no facilities
have been authorized to sell it. I expect that in the next year or
so, that the sale of medical marijuana will start in the state. As
of today, there is no lawful sales of marijuana.
These two changes in statutes have
caused other changes in criminal law. The highest court in
Massachusetts, the Supreme Judicial Court has issued three recent
opinions interpreting marijuana laws. Two of these cases changed
the way that the state will interact with people who use marijuana in
Massachusetts.
Before the change in the law, the smell
of marijuana or burnt marijuana was probable cause for law
enforcement to search the premises. Commonly, police smelled
marijuana when making motor vehicle stops. The subsequent search of
a car frequently lead to an arrest for other crimes. However,
possession of marijuana is not necessarily a crime. The smell of
marijuana is probable cause for a police officer to believe that the
offense of possession of marijuana was committed. However, an offense
is not a crime and the police can't search when they believe that an
offense has been committed. In the case of Commonwealth v Daniel,
the Massachusetts Supreme Judicial Court found that the smell of
marijuana or burnt marijuana does not constitute probable cause to
believe that a crime has been committed.
In Commonwealth v. Jackson, the
court defined the crime of distribution of marijuana in light of the
recent change decriminalizing small amounts of marijuana. In this
case, police observed people sharing a marijuana cigarette. The
passing of a joint had previously constituted the crime of
distribution of a drug. The court ruled that the social sharing of
small amounts of the drug was within the scope of the new law and
intended to be an offense and not a crime. This ruling is a sensible
interpretation of the law. If possession of less than one ounce of
pot is no longer a crime, why should the sharing of a joint, without
the exchange of money be a crime? The Court found that social
sharing of joints is no longer a criminal act.
The third case looked at cultivation
of marijuana in light of the new law. In the case of Commonwealth v.
Palmer the Court held that the growing or cultivation of marijuana
was still a crime even if the amount grown is less than an ounce and
grown for personal use. The Court found that the new law does not
contain an exception for cultivation.
Based on these three cases, it
appears that in Massachusetts possession and use of less than an
ounce of marijuana is an offense and not a crime. The social sharing
of such small amounts of marijuana is also not a crime. However,
possession of more than an ounce of marijuana, growing marijuana, and
selling marijuana are still crimes in Massachusetts. The
interpretation of the changes in the law have limited the ability of
police to search and arrest when they find evidence of marijuana use.
The law that decriminalized
marijuana has changed many legal proceedings in Massachusetts.
However, possession is still illegal. In particular, the illegal use
of marijuana can still be the basis for loss of custody in a divorce
proceeding. An experienced Massachusetts lawyer can help advise on
the changes of the new law and what has not changed in Massachusetts.
