The new law which makes it legal to possess an ounce or less of marijuana for personal use has left many confused as to what is legal when it comes to possessing or using marijuana. Possession of any amount of marijuana with the intent to distribute is still a crime. Growing marijuana in any amount is still a crime. Possession of drug paraphernalia, such as a pipe, grinder or any other type of smoking device when possessed with marijuana is still a crime.
The supreme judicial Court has recently decided a some cases which help clarify some gray areas that existed.
The first case involved the police searching the backpack of a young man after witnessing him share a marijuana joint with others in public. The District Attorney’s Office argued that the police had the right to search the backpack without a warrant based on their observations of him sharing marijuana with others. The Supreme Court ruled the search of the backpack without a warrant was illegal. The ruling makes it clear that sharing a joint with others is not considered distribution of marijuana and that such an offense is merely a civil infraction which does not open the door for the police to search a person or his property further. So this means that police are limited in their ability to search when encountering a civil marijuana infraction. As a side note approximately 23 grams of marijuana was found in the backpack which is less than an ounce, but the marijuana was packaged in ten small baggies leading the police to charge possession with the intent distribute. Evidence used by police to prove intent to distribute is usually the amount of drugs, manner in which it is packaged, large amounts of currency or cell phones/beepers, scales, baggies or any other evidence of distribution.
In another ruling the S JC ruled that the police did not have the authority to search a vehicle based on the occupants smelling like marijuana and finding a small amount of marijuana on their person. So like the first case discussed police are restricted from searching the vehicle based solely on a civil infraction related to marijuana. The district attorney argued that this case was different from the first in that the police should be allowed to search further to make sure that the crime of driving under the influence of drugs is not being committed. The Supreme Court refused to delve into this specific issue since the district attorney did not argue and preserve the issue in the lower court rulings. Driving under the influence of marijuana still may be charged as a criminal offense if ones driving is impaired. If police believe someone is under the influence of drugs while driving, including marijuana, they will most likely be able to further investigate and search a vehicle without a warrant.
Frank Fernandez is a Boston criminal defense attorney who offers free consultations. As a Boston criminal lawyer his firm handles all types of criminal cases including drug offenses in both State and Federal Court. Feel free to call for a free consultation 617-319-6652.