Pubdate: Wed, 23 Sep 2015
Source: Boston Globe (MA)
Copyright: 2015 Globe Newspaper Company
Contact: http://services.bostonglobe.com/news/opeds/letter.aspx?id=6340
Website: http://bostonglobe.com/
Details: http://www.mapinc.org/media/52
Authors: Travis Andersen and John R. Ellement

SJC BANS POLICE STOPS SOLELY FOR SUSPECTED MARIJUANA

Court Ruling Cites 2008 Decriminalization Law

In a decision hailed by civil rights advocates and supporters of 
marijuana legalization, the state's highest court ruled Tuesday that 
police cannot stop motorists solely because they suspect the 
vehicle's occupants are in possession of the drug.

The Supreme Judicial Court based its 5-2 ruling largely on a measure 
that voters approved in 2008 that reduced possession of an ounce or 
less of marijuana from a criminal offense to a civil violation 
punishable by a fine.

"Permitting police to stop a vehicle based on reasonable suspicion 
that an occupant possesses marijuana does not serve [the] objectives" 
of the law change, Justice Margot Botsford wrote for the majority.

Botsford wrote that allowing such stops "does not refocus police 
efforts on pursuing more serious crime," another goal of changing the law.

The ruling does not prevent police from issuing citations for 
marijuana possession if they stop a driver for a traffic infraction, 
such as speeding, and later notice marijuana in plain view inside the vehicle.

If passed, an initiative on the November 2016 ballot would mark an 
important, and long overdue, policy shift.

Botsford's opinion was welcomed by the Campaign to Regulate Marijuana 
Like Alcohol in Massachusetts, a group pushing for a 2016 ballot 
question that would legalize marijuana for adult recreational use.

Jim Borghesani, a spokesman for the campaign, said in a statement 
that the ruling "provides further clarification for how police 
officers should handle vehicle stops in the era of decriminalization, 
and it advances the clear message sent by voters in 2008 to refocus 
police activity on more serious crimes."

Matthew Segal, legal director of the ACLU of Massachusetts, echoed 
that view, saying that with the vote to decriminalize marijuana in 
2008, residents of the Commonwealth were making a statement "about 
how the police ought to spend their time and the taxpayers' money."

Pulling over a car on suspicion of marijuana possession, he said, is 
"not consistent with the Massachusetts constitution, nor is it 
consistent with the will of the voters who passed decriminalization."

David Procopio, a State Police spokesman, said in a statement that 
troopers are not primarily concerned about a vehicle occupant who 
possesses an ounce or less of marijuana. He said troopers usually 
make observations of marijuana use after stopping a car for other 
reasons, such as traffic infractions.

"What does concern us about marijuana, even amounts less than an 
ounce . . . is whether the operator has used it and is thus driving 
while impaired," Procopio said. "The voters decriminalized possession 
of less than an ounce. That does not mean that using less than an 
ounce means you are OK to drive . . . and this ruling will have no 
impact on the observations we use to establish probable cause for 
drugged driving or our determination that a driver should be charged as such."

Botsford's opinion followed SJC rulings in 2011 and last year finding 
that the odor of burned marijuana alone does not provide grounds for 
police to order occupants to exit a car, and that the smell of burned 
or unburned marijuana does not justify searching a vehicle without a warrant.

John L. Calcagni III, a lawyer for Elivette Rodriguez, the defendant 
at the center of Tuesday's ruling, noted that the prior opinions 
dealt with exit orders and searches of vehicles, and he said 
Tuesday's decision "closed the loop" in finding that police cannot 
even stop a car based on suspicion of marijuana possession.

"That is something that they had not yet done," Calcagni said.

Rodriguez was a passenger in a vehicle that New Bedford police 
stopped in 2012 after allegedly detecting an odor of marijuana coming 
from the passing automobile.

The police vehicle and the suspect car both had their windows down at 
the time, and police on a prior occasion had arrested an occupant of 
the same vehicle for heroin possession.

During the stop involving Rodriguez, police found a bag containing 60 
Percocet pills inside the vehicle, and Rodriguez was charged with 
possessing a Class B substance with intent to distribute and other 
crimes, Botsford wrote.

The court's majority ruled Tuesday that the pills were inadmissable 
in court, because the initial stop was not justified. The SJC 
referred the case to the district court for "further proceedings 
consistent with this opinion."

Bristol District Attorney Thomas M. Quinn III's office declined to 
comment, except to say they will no longer pursue their case against 
Rodriguez, in light of the ruling.

Bristol prosecutors who argued the Rodriguez case before the SJC 
asserted that police can stop vehicles for a civil marijuana offense, 
just as they can for a civil traffic offense.

The court rejected that argument, finding that traffic laws promote 
road safety, but there "is no obvious and direct link" between 
issuing civil citations for marijuana possession and maintaining 
highway safety.

Justice Robert Cordy, in a dissenting opinion, expressed a different 
view, writing that even if not all civil marijuana violations affect 
highway safety, infractions "occurring in motor vehicles do implicate 
concerns regarding traffic and automobile safety."

He argued that "there is no constitutionally based reason to 
distinguish" motor vehicle stops for civil marijuana violations from 
stops for traffic infractions.
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