Globe Editorial

Ruling on marijuana searches leaves behind a strange odor

April 25, 2011

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THE PASSAGE of an ill-considered 2008 state ballot question decriminalizing small amounts of marijuana has proved to be disorienting for the legal system. The latest example is a ruling by the Supreme Judicial Court that the odor of marijuana emanating from a parked vehicle is not sufficient cause for further police investigation. It’s a harmful ruling that can and should be remedied by the Legislature.

By a 5-1 vote, the state’s highest court recently upheld a district court’s ruling that police officers lacked the authority to order suspects out of a parked passenger vehicle based on the odor of pot. The court concluded that Boston police officers had no evidence that the suspects possessed a criminal amount of marijuana and erred by “ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct.’’ Possession of under one ounce of marijuana in Massachusetts is just a civil offense punishable by a $100 fine.

Only recently retired Justice Judith Cowin stood firm on longstanding case law that permitted police to conduct a warrantless search on a car if they smelled marijuana. Her sound — albeit dissenting — opinion was that such odor “may serve as a basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway.’’

Pot smoke reeks of reasonable suspicion. And Cowin alone got this right. What could be a better tip off to police that an illegal amount of pot might be present in a vehicle than the distinctive odor of marijuana itself? It’s solid grounds for further investigation, and can sometimes lead to evidence of other drug crimes — as evidenced by the seizure of 4 grams of crack cocaine from the passenger who was ordered out of the vehicle.

The ballot question decriminalizing small amounts of marijuana was oversold to the public as protection for the occasional recreational user who might otherwise risk a criminal record and lose chances for employment and scholarships. But the law was already lenient in this area. Instead, the court’s interpretation of the marijuana decriminalization law poses significant risk to the safety of the public — pot smokers and abstainers alike.