NORML Argues State Prosecutors Can’t Justify Police Searches Based on Smell

  • by Allen St. Pierre, Former NORML Executive Director November 25, 2013

    NORML filed an “amicus curiae” brief with the state supreme appellate court on Friday, November 22, urging the court to enforce the limits on police searches set by 2008’s voter-initiative state decriminalization law, which eliminating police searches and arrests for possession of small amounts of marijuana. Attorneys Michael Cutler of Northampton and Steven Epstein of Georgetown authored the brief.norml_remember_prohibition_

    In this case a Boston judge initially ruled a 2011 police search — based entirely on the smell of unburnt marijuana — violated the “decriminalization” law which made possession of an ounce or less of marijuana a civil infraction subject only to a fine, thereby ending police authority to search or arrest the possessor. The state appealed.

    Earlier in 2011 the state supreme court ruled, in a case in which NORML also filed an amicus brief, that police searches based only on the odor of burnt marijuana were now illegal. The court reasoned that smell alone did not establish probable cause to believe a criminal amount (more than an ounce) was present, so police had no power to search or arrest.

    NORML asks the court to reject the Boston prosecutor’s claim that federal prohibition — which allows arrest and imprisonment for any amount of cannabis under federal law — trumps the state decriminalization law and allows police to ignore state law and use evidence from smell-based searches in state courts.

    NORML argues that state prosecutors and police must obey state law and state appellate court rulings under the state constitution’s separation of powers doctrine, requiring the executive branch to obey the legislative branch’s laws and the judicial branch’s limits on police conduct under state law and the state’s constitution.

    Finally, NORML argues that the state prosecutor’s position violates fundamental principles of Federalism, which limit federal “preemption” of state law only where state law “positively conflicts” with federal law. Since the August 2013 federal Justice Department Guidance memo to  federal prosecutors nationwide, recommending no interference with state laws legalizing marijuana in a responsible manner, no such conflict exists between federal and state authority.

    Oral argument in the case of Commonwealth v. Craan is scheduled for early February, with a decision possible by June 2014.


    23 responses to “NORML Argues State Prosecutors Can’t Justify Police Searches Based on Smell”

    1. Julian says:

      There’s my donation money at work! Thanks NORML.
      However, to say that ” no such conflict exists between federal and state authority,” might be a stretch; If anyone has probable cause to search for drugs it’s the American taxpayers who deserve to search the DEA and the DOJ for drugs, drug laundering money, and asset forfeitures.

    2. Miles says:

      I’m no expert on the law, but I do know right from wrong! In my opinion, State Police must follow State laws. It seem so simple to me. However, I know there are prohibitionist jerks out there who look for any way, any excuse, to bust or harass a cannabis user…

      I wish to God that our Federal Govt would take a time out to review the damage they have caused by their prohibition and just legalize it already at the Federal level. However, as I mentioned earlier, I know there are prohibitionist jerks out there… and many of them are in our Congress. That probably explains why they are so incredibly unpopular at this time in our nation’s history.

    3. This is the very thing that going to cause either legislation or prohibition. The law can’t have gray areas. It has to be black or white. Gray areas are open for abuse and corruption. However keep in mind that in places where it is still illegal. The law dogs are still going to be just as overzealous as ever. Their little brainwashed mind’s still think they are saving the country from reefer madness. I am glad that we have NORML to jump in and clarify the decriminalization policies. Without that we might as well go back to square one. Decriminalization is just a word of convenience.


    4. Ray Walker says:

      “The state appealed.” What this says to me is that the police will hide behind the law when it serve them and then when it doesn’t, they take it upon themselves to try and undo what the people have worked so hard to fix in the first place. We don’t pay these people to waste tax money objecting to what they don’t like. This isn’t them protecting and serving, this is them ruling and oppressing. Live and let live might be a good position for everybody to consider. All this fighting over a forgone conclusion isn’t smart and only adds to the cost the war on drugs has caused.

    5. Ray says:

      Let’s sniff test some of these politicians and see how quickly these laws change. Better yet let someone they love get sick and possibly benefit from mmj and see how quickly they change their mind.

    6. Demonhype says:

      @Miles: The ones at the top are guaranteed to be not just “jerks”. They are bought-and-paid-for tools of prohibitionist industries who stand to lose a fortune if marijuana is legalized, and in some cases may even face the end of their industry all together. And they are doing everything in their power trying to preserve that federal law and trying to make it trump state law (which is funny, since these are usually the very people crowing about “states rights” and how they want “small government”–I guess that only counts when you’re deregulating big business and rolling back and eliminating workers’ rights, but the moment we’re talking about, say, marijuana legalization or women’s health or gay people they want the biggest federal government powers of all and states’ rights don’t even come into play. Freaking hypocrites, why don’t people see through this power play, it’s so obvious to anyone with half a brain and a modicum of honesty!) They are also working hard to use their purchased tools (ie: our politicians) to ensure that no more legalization initiatives ever reach the voting public again, because at this point they will pass.

      Then, of course, there are the low-level prohibitionists. Yes, I will agree that most of them (at least, the ones that don’t work for private prisons or drug testing companies, etc) are simply jerks. Jerks and cowards. Grossly misinformed jerks and cowards who are terrified of the MJ boogeymen that will be unleashed if their precious security theater is disbanded.

    7. Vape Escape says:

      Amendment X

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      Here is where I have a big problem. There is nothing in the US Constitution that grants the feds the power and authority to continue cannabis prohibition. The Constitution does not grant the feds the power to do vast amounts of damage to society to ban a substance that does next to no damage to society.

      Protect the general welfare? HA! Cannabis prohibition ruins the general welfare of this nation. This is especially true when you consider the ban on cultivating hemp.

    8. Anonymous says:

      FREE THE WEED !! The Law on Marijuana is crumbling down around them . SMOKE THIR ASS NORML

    9. Galileo Galilei says:

      I surely hope they can’t push this damn trumps-state-law stuff anymore. There once was ZERO (0) support for cannabis reform in the Senate. I wonder if that’s still the case.

    10. Dave Evans says:

      That is one of the most absurd arguments I’ve heard. These are State Police, not FBI nor DEA agents. They can’t even arrest people on Federal Charges; this is just stupid and corrupt.