Why is the Smell of Pot Not Enough to Arrest? by MA Defense Attorney

In a recent Worcester Superior Court decision, the marijuana search and seizure laws were applied and the case highlighted that an exit order from a vehicle is not appropriate where the odor of burnt marijuana alone provides the criminal suspicion. Similarly, probable cause is not established to allow for a search of a motor vehicle based solely on the odor of burnt marijuana, unless there is probable cause to believe that a “criminal amount of marijuana” is present within the vehicle, according to Defense Attorney Shane W. Surrette of Worcester, MA.

While the defendant in the case admitted that he had smoked marijuana earlier in the evening and had a small amount of marijuana within his possession, it was held that the Trooper’s observations and the defendant’s admissions were insufficient to allow for an exit order or subsequent search. This case highlights that additional factors need to be present beyond the mere odor of less than a criminal amount of marijuana to order an individual out of a car and to search the car. 

What is important under the marijuana search and seizure law is to what extent is the exit order and subsequent search solely based on the odor of burnt marijuana? For example, Courts will often look to whether there is any objective criteria indicating that the officer might have a reasonable fear for his safety or that of the public. Also, Courts will see if there are additional factors to bolster reasonable suspicion of criminal activity, such as whether or not there are any instruments such as digital scales which might be suggestive of an intent to distribute the marijuana.

Similarly, if there is erratic operation coupled with an odor of marijuana, the additional factor of the erratic operation may provide sufficient suspicion for an exit order based on a belief that the operator is driving while under the influence of marijuana/narcotics. As the factors in support of reasonable suspicion of criminal activity increase, the more likely it is that the exit order and subsequent search will be upheld.

To read more of the article in the Telegram & Gazette click here.

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