Massachusetts High Court Limits Police Searches in Small Marijuana Cases

This blog is cross-posted from the national ACLU Blog of Rights.

Reason and justice prevailed this week in Massachusetts, where the Commonwealth’s highest court ruled by a 5-1 margin in Commonwealth v. Cruz that police can no longer search or seize someone they suspect of possessing a small amount of marijuana. The basis for this ACLU victory was the Massachusetts ballot measure known as Question 2, which made possession of an ounce or less of marijuana a civil infraction instead of a crime. Massachusetts voters overwhelmingly approved Question 2 with 65 percent of the vote in November 2008.

The ruling has several implications for civil rights and civil liberties, all of them positive.


First, and most obviously, it’s an important step forward for marijuana decriminalization. The justices took seriously the notion that when Massachusetts voters said they didn’t want police harassing marijuana users or using limited law enforcement resources to combat minor drug use, they meant it. In the words of the court:

By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes. . .The statute does away with traditional criminal consequences, including the long-term and embarrassing effect that a criminal record has on employment or applying for school loans, demonstrating the intent of the voters to change the societal impact of possessing one ounce or less of marijuana.

The court understood that Question 2 wasn’t just about lowering the penalty for personal-use possession to $100; it was about changing the Commonwealth’s whole attitude about marijuana. Criminalizing marijuana makes criminals out of ordinary people and wastes police resources to do so. The people of Massachusetts have had enough of this. Even if police haven’t gotten the message yet, the court did.

Second, the decision continues an admirable trend in Massachusetts of serious judicial attention to the problem of unwarranted police discretion and the resulting racial disparities in the policing of minor offenses.

Take this case, which begins with Benjamin Cruz sitting in the passenger seat of a car parked on his own street in a working class neighborhood of Boston. Two officers approach the car, solely because it’s parked in front of a fire hydrant. They smell burnt marijuana, the possession of which – remember – in a personal-use quantity is now nothing more than a civil infraction akin to a traffic offense.

Instead of issuing a parking or even a marijuana citation and going on their way, the officers call for backup, and with six officers surrounding the car, they pull the two men out, find a few grams of drugs, and arrest them. It took almost two years and two court decisions before Cruz could put this behind him. And for what? For six officers to investigate two guys in a parked car for two civil infractions?

I have to wonder if the scenario would have played out the same way with two white students in a car in Harvard Square. This is the problem with police discretion regarding minor offenses, particularly (but not exclusively) minor drug offenses: police use minor offenses like the personal possession of marijuana to poke into the pockets, cars and homes of people of color, the usual suspects of street policing. This trend is well-documented. And this is why it’s so important that the high court put its foot down and insisted that officers have objective evidence of a real crime – and not merely an infraction – before they search or seize.

Finally, the decision is an important limitation on the powers of the police generally. The court took a strong stand for the principle of proportionality in law enforcement, which means the police invasion of privacy must be proportional to the reason for the intrusion. Sounds simple, but it’s a connection that has been steadily eroded in too many courts across the country throughout the past decades, as the war on drugs has been used an excuse to ignore constitutional rights.

Fortunately, the value of privacy is still alive in Massachusetts. In holding that it “cannot condone such an intrusive measure as a warrantless search,” the court indicated its understanding of the value of individual privacy and the intrusiveness of law enforcement searches and seizures.

Further, the court instructed officers throughout Massachusetts that they should not devote their energy toward investigating conduct that the voters have removed from the realm of the criminal – in other words, officers should not infringe on privacy without a good reason. This basic but often overlooked principle of individual liberty is long due for a renaissance; it’s heartening to see that some judges still believe in it.

At the end of the day, the court recognized that “[f]erreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language” of Question 2.

The people of Massachusetts can celebrate this decision as a vindication of their vision in passing Question 2. And the people of every state can view this decision as a blueprint in how to tell the government that we’re tired of the police decimating communities of color by overenforcing drug laws, wasting resources on nonviolent offenses and turning ordinary people into criminals. Our country needs more brave reform measures like Question 2 and more courageous jurists like those on the Massachusetts Supreme Judicial Court.

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9 Comments . Leave a comment below.
  1. $quot;And for what? For six officers to investigate two guys in a parked car for two civil infractions?$quot;

    Well, to be fair, the cops discovered that Cruz was in possession of crack cocaine, and that's what he was charged with (including possession of crack in a school zone).  I tend to agree that the SJC's decision was legally correct, but let's not pretend that there was no "criminal conduct" involved in this case.  There was.

    • $quot;Criminal conduct$quot; not the issue

      Unless you are making the argument that Fourth Amendment is now obsolete (which of course you are not), then I don't think that "criminal conduct" is the issue here. In my view, the consequences to society of some crack cocaine use occasionally going unpunished far exceed the consequences to society of police who cite minor infractions to harass anyone they rightly or wrongly suspect of criminal conduct.

      In today's culture, I think we need rather more rather than less restrictions on police conduct. In my view, the negative effect of the government's appalling treatment of Jose Padilla far outweighs the consequences of whatever crimes he did or did not commit.

      The voters of Massachusetts voted overwhelmingly to decriminalize marijuana possession. The police of Massachusetts have resisted that directive, kicking and screaming, ever since. I want voters to decide what is legal and illegal, not the police. I think this is the real motivation behind the decision, and I think it's a good one.

      The Fourth Amendment exists for very good reasons. We need it now more than ever.

      • Well,

        first of all, the exclusionary rule (the rule that says that illegally seized evidence cannot be used at trial) is not actually contained in the Fourth Amendment.  It is a judge-made rule, and one that appeared in something like its current form only in the early part of the 20th century.

        Anyway, as I said, I am not arguing that the decision was legally incorrect.  I am saying that (a) I found the original post a tad misleading, because it never mentions that Cruz was actually charged with something other than marijuana-related offenses; and (b) the exclusionary rule has costs as well as benefits.  It's easy enough to wave off a case like this one, where the actual crime was relatively minor in the great scheme of things.  It's much harder to do that when a technical Fourth Amendment violation results in a serious crime going unpunished and a dangerous person remaining at large.

        • Rooted in the Fourth Amendment, though

          I'm surprised that you take the argument in this direction.

          The exclusionary rule is rooted in the Fourth Amendment, and adds the teeth necessary to make the Fourth Amendment mean something.

          I disagree with the logic of your last sentence. If "poisoned" evidence is needed to conclude that a "serious crime" has occurred, than I argue that we have no choice but to ignore the suspected or alleged crime, no matter how allegedly serious. I think that to label an alleged crime "serious", and to characterize a suspect as a "dangerous person", based on even a "technical" Fourth Amendment violation, is to fall prey to the Petitio Principii logical fallacy.

          In my view, it is the attempt to relax this constraint that led to, for example, the current fiasco with Khalid Sheikh Mohammed. While I don't doubt that he is a bad guy, in my view the US government's torture of Mr. Mohammed must result in excluding all the fruits of whatever "evidence" he gave — the alternative is to allow torture if the suspected crime is heinous enough. If we go down that route, then every crime will end up being "heinous" (until proven otherwise).

          I think we need to dial down our hysteria about crimes, criminals, and especially terrorism and terrorists several notches. I've had enough of swat teams storming shopping malls with automatic weapons because of somebody's scary umbrella.

          This decision is, in my view, a marvelous starting point.

  2. Then why an open container law?

    Why is it illegal to have a 'small quantity' of Budweiser in an open can in a car?

    Behind the wheel of a car, the issue of sobriety is paramount.  Driving under the influence isn't just the influence of alcohol; marijuana is just as intoxicating as wine.

    If a car can be stopped for an open container, why is it wrong to stop it for an aroma of pot?  Both indicate a possibility that these intoxicating substances are undgoing active ingestion while driving - indeed, BURNING pot is an even greater likelihood than the open can.

    The case was badly decided as a matter of public safety.

    • depends on the law

      There are specific laws against driving while drinking or under the influence of alcohol.  Are there similar laws relative to marijuana?

      • In this case

        the car was not stopped. It was already parked, and the person who had the drugs was a passenger.

        Also, there are separate rules for impairment, which this ruling does not change. This ruling is about whether police can use the scent of marijuana as a justification to look for something else, and the courts have now said that they can't.

        • ACLU - the car being in motion is not required.

          Case in point -

          A person I know (ok, a relative) drove to a convenience store to get a pack of cigaretts after having a few beers with friends.  On the way back to friend's house, ran over a nail, and was in a parking lot trying to change the tire when the police stopped to investigate.  Cited for driving under the influence, challenged the ticket claiming that no driving was taking place and maybe was going to walk home.  Lost and was sentenced to Drunkeness School.  Felt like a fool in weeks of class with people who had run over state troopers while brandishing a whiskey bottle, as had to explain that offense was drunken tire changing.

          As far as scent goes - would not the scent of marijuana also allow testing impariment?  As I said before, law does not reference alcohol, only impaired influence.  And if a rock of crack is found while testing impairment, why would it not be admissable?

  3. $quot;I have to wonder if the scenario would have played out the same way with two white students in a car in Harvard Square.$quot;

    Why don't you contact the arresting Officer, Richard Diaz, and ask him if he was racially profiling Benjamin Cruz.  

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