Pubdate: Fri, 06 May 2011
Source: North Shore Sunday (Beverly, MA)
Copyright: 2011 GateHouse Media,sInc.
Author: Steven S. Epstein
Note: Steven Epstein co-authored a friend of the court brief in the 
case for NORML and is a founder and still active in the Massachusetts 
Cannabis Reform Coalition.
Bookmark: (Massachusetts)
Bookmark: (Marijuana)


North of Boston -- Persons who value the advantages of liberty and 
the principles of the constitution of Massachusetts will remember 
April 19 of 2011, the 236th anniversary of the battles of Lexington 
and Concord, as a little more special. It was the day that the 
Supreme Judicial Court released an opinion that the smell of burnt 
marijuana no longer empowers police to detain persons and search them 
or their possessions.

The case of Commonwealth v. Cruz arose when police spotted a car 
illegally parked. Two people were in the car, Mr. Cruz in the 
passenger seat. According to the police officers involved, when they 
approached the car, they smelled the faint odor of burnt marijuana. 
They ordered Cruz out and, in response to an inquiry by police, he 
gave up a piece of crack cocaine. Police found no marijuana in the 
car, on the person in the driver's seat or following a full search of Mr. Cruz.

The court, referring to the 2008 ballot initiative to decriminalize 
possession of small amounts of marijuana, reasoned that, "voters read 
the arguments 'for' and 'against,' as well as the new law itself. 
Because we have the benefit of the written explanation in support of 
the initiative, the people's intent in answering Question 2 in the 
affirmative was clear: possession of one ounce or less of marijuana 
should not be considered a serious infraction worthy of criminal sanction."

So, the court continued, responding to a whiff of burnt marijuana 
with the same fervent police action "associated with the pursuit of 
serious criminal conduct is neither desired by the public nor in 
accord with the plain language of the statute."

At issue is the application of the timeless principles voiced in 1761 
by James Otis, Jr. on behalf of Salem merchants against writs of 
assistance, which allowed searches of anyone and all their 
possessions for smuggled goods. John Adams, present when Otis made 
his case, incorporated these principles in his draft of a Declaration 
of Rights and Constitution adopted by the voters of Massachusetts in 1780.

These principles include the right of the people to alter their 
government, in this case by way of the initiative, and of the right 
retained upon entering civil society to be free from unreasonable 
searches and seizures not founded upon specific articulable facts 
establishing probable cause of criminal activity.

In 1817, President Adams reminisced that Otis was "a flame of fire" 
as he addressed the highest court of the colony, and his arguments 
"prophetic." Otis' argument so impressed him that he remembered that, 
"Every man of a crowded audience appeared to me to go away, as I did, 
ready to take arms against writs of assistance." He called it "the 
first scene of the first act of opposition to the arbitrary claims of 
Great Britain."

So now, act one scene one of the opposition to arbitrary power and 
act one scene one of the War of Independence are linked by this 
decision that protects citizens' personal autonomy. Those who did not 
vote for Question 2 are no less safe, as the court makes clear that 
in appropriate circumstances -- absent in this case -- police retain 
the authority to investigate operator impairment and arrest for 
operating under the influence or to conduct an investigation of 
criminal activity.

Did the court deliberately release the decision on Patriots Day? I 
believe they did to remind us all of the lofty principles of Otis and 
the patriots. Principles neglected too often by too many when forming 
their opinions on court decisions that let a person disobedient of 
the laws of God or the laws of man go unpunished. This is a small 
price to pay in the words of Mr. Adams in Article 18 of the 
Declaration of Rights, "to preserve the advantages of liberty, and to 
maintain a free government."
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