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Reasonable Suspicion of an Unjust


Conclusion: How Commonwealth v. Cruz
Cripples Enforcement of Mass. Gen.
Laws ch. 94C, 32L

JOHN SULLIVAN*
ABSTRACT

Before January 2, 2009, it was a criminal offense in Massachusetts to


possess any quantity of marijuana. As such, the odor of marijuana, by
itself, was sufficient to establish probable cause to arrest or search. In 2008,
however, citizens of the Commonwealth overwhelmingly voted to
decriminalize possession of less than one ounce of marijuana. As a result,
the SJC, in Commonwealth v. Cruz, held that the odor of marijuana no longer
provides law enforcement with probable cause to arrest or search in
Massachusetts. Additionally, the court also concluded that the odor of
marijuana no longer satisfies the reasonable suspicion standard. Although
this Note agrees that the odor of marijuana should no longer provide law
enforcement with probable cause, it argues that the odor of marijuana
should still provide law enforcement with reasonable suspicion to issue a
civil citation for simple marijuana possession. To hold otherwise would
effectively remove the authority of law enforcement to issue civil citations
for this infraction and would functionally legalize marijuana possession in
Massachusetts.

*Candidate for Juris Doctor, New England Law | Boston (2012). B.S., Business

Management, Fisher College (2008). I would like to thank my wife Patti, my daughter Jennifer,
and my son John for their encouragement and support during the research and drafting of
this Note. I would particularly like to thank John for his commitment to reviewing and
proofreading countless drafts of this Note. Without their support, this Note would not have
been possible.

877
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INTRODUCTION

I
n 1948, the U.S. Supreme Court issued a seminal decision that forever
altered probable-cause analysis.1 In Johnson v. United States, the Court
held that [i]f the presence of odors is testified to before a magistrate
and he finds the affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden substance, . . . it might very
well be found to be evidence of most persuasive character.2 Since that
decision, courts across the nation have almost uniformly held that the odor
of marijuana, standing alone, suffices to establish probable cause to believe
that marijuana is nearby.3 Thus, the mere odor of marijuana has become a
sufficient justification for the arrest and search of a suspects person or
vehicle.4
In Commonwealth v. Garden, the Massachusetts Supreme Judicial Court
(SJC) joined those states that follow the U.S. Supreme Courts decision in
Johnson.5 Because marijuana possession was punishable as a criminal
offense at the time of the Garden decision, the Commonwealths highest
court determined that [a]lthough the odor of marijuana often has been
considered in conjunction with other factors in establishing probable
cause, . . . the odor of marijuana is sufficiently distinctive that it alone can
supply probable cause to believe that marijuana is nearby.6 The
Massachusetts Appeals Court extended this holding to permit warrantless
searches of a suspects person based solely upon the odor of marijuana in
Commonwealth v. Laskoski.7
On January 2, 2009, by virtue of an initiative petition voted upon by the
Commonwealths citizens, possession of less than one ounce of marijuana

1 See Johnson v. United States, 333 U.S. 10 (1948).


2 Id. at 13.
3 See, e.g., United States v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (*C+ase law is consentient
that when a law enforcement officer detects the odor of marijuana emanating from a confined
area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes
the officer with probable cause to conduct a search of the confined area.); State v.
MacDonald, 856 P.2d 116, 120 (Kan. 1993) (A majority of courts have found that marijuana
odor detected by an experienced law enforcement officer can provide sufficient probable
cause to support a warrantless search.); People v. Kazmierczak, 605 N.W.2d 667, 674 (Mich.
2000) (*T+he smell of marijuana alone by a person qualified to know the odor may establish
probable cause to search a motor vehicle . . . . (footnote omitted)); State v. Moore, 734 N.E.2d
804, 808 (Ohio 2000) (*The+ smell of marijuana, as detected by a person who is qualified to
recognize the odor . . . is sufficient to establish probable cause.).
4 See cases cited supra note 3.
5 See Commonwealth v. Garden, 883 N.E.2d 905, 910 (Mass. 2008).
6 See id. (footnote omitted).
7 911 N.E.2d 231, 234 (Mass. App. Ct. 2009).
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2012 Reasonable Suspicion of an Unjust Conclusion 879

was decriminalized in Massachusetts.8 Thus, civil citations of a mere $100


fine replaced criminal penalties.9 In recognition of this clear legislative
change, the SJC revisited its search and seizure jurisprudence in the case of
Commonwealth v. Cruz.10 In so doing, the SJC determined that the odor of
burnt marijuana, standing alone, no longer provides law enforcement in
the Commonwealth with any level of constitutional justification for an exit
order.11 In other words, the odor of marijuana provides law enforcement
with neither probable cause nor reasonable suspicion to search for the
presence of marijuana.12 Because this holding fails to account for the
continued authority of law enforcement to issue citations and seize
marijuana from suspected offenders, the SJC has impermissibly curtailed
the enforcement of section 32L of Massachusetts General Laws.13
Part I of this Note provides background concerning the law in
Massachusetts prior to the decriminalization of simple marijuana
possession. Part II supplies insight into the moving force behind the new
law. Specifically, it provides information regarding the state constitutional
requirements for initiative petitions to enact new laws as well as the
committee responsible for implementing this process. Part III details the
new law itself, its civil citation method, and the appellate process. Part IV
discusses the applicable case law that has developed in the Commonwealth
regarding both the probable cause and reasonable suspicion analyses as
they relate to the odor of marijuana.
In analyzing the relevant legal issues, Part VI provides a detailed
discussion of where the SJCs Cruz decision went wrong and offers a more
appropriate resolution to the tension between section 32Ls
decriminalization of simple marijuana possession and law enforcements
civil citation authority. In so doing, this Note argues that the odor of
marijuana, standing alone, should still provide law enforcement with at
least a reasonable suspicion to believe marijuana is nearby.

I. Background

A. The Old Law: MASS. GEN. LAWS ch. 94C, Section 34

Prior to January 2, 2009, marijuana possession was illegal in the


Massachusetts.14 Specifically, the law provided that it was unlawful for any

8 See MASS. GEN. LAWS ch. 94C, 32L (2010).


9 See id.
10 945 N.E.2d 899 (Mass. 2011).
11 Id. at 910.
12 Id. at 910, 913.
13 See infra text accompanying notes 264-65.
14 See MASS. GEN. LAWS ch. 94C, 34 (2010).
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person to knowingly or intentionally . . . possess [marijuana] unless [it]


was obtained directly, or pursuant to a valid prescription or order, from a
practitioner while acting in the course of his professional practice.15 The
legislature enacted this law due to the apprehension of dangers to health
and safety caused by marijuana such as psychotic reactions and
automobile accidents.16
A violation of this law was a criminal offense,17 and thus the defendant
was entitled to all substantive and procedural rights guaranteed by the
state and federal constitutions and laws.18 These rights included the right to
be informed of the facts of the charge,19 the right to counsel,20 the right to a
trial by jury,21 and the right to confront adverse witnesses.22 Any person
convicted of violating this provision was subject to imprisonment in a
house of correction for not more than six months or a fine of five hundred
dollars, or both.23 In addition, the initiation of criminal proceedings by the
Commonwealth was recorded on the defendants criminal record.24
As with any criminal offense, the Commonwealth was required to
prove certain elements beyond any reasonable doubt to secure a conviction
at trial.25 In order to prove the defendant guilty of marijuana possession,

15 Id.
16 Marcoux v. Atty Gen., 375 N.E.2d 688, 689 (Mass. 1978) (citing Blincoe v. State, 204
S.E.2d 597, 598 (Ga. 1974)); see also State v. Baker, 535 P.2d 1394, 1402-04 (Haw. 1975); State v.
Kells, 259 N.W.2d 19, 24 (Neb. 1977).
17 See MASS. GEN. LAWS ch. 94C, 34.
18 See Jennifer Lee Urbanski, Casenote, Georgia v. McCollum: Protecting Jurors from Race-
Based Peremptory Challenges but Forcing Criminal Defendants to Risk Biased Juries, 24 PAC. L.J.
1887, 1938 (1993) (explaining that the Constitution . . . grants the criminal defendant a
number of trial related rights (footnote omitted)).
19 See MASS. GEN. LAWS ch. 263, 1.
20 See U.S. CONST. amend VI; MASS. CONST. art. XII; MASS. GEN. LAWS ch. 263, 5.
21 See U.S. CONST. amend VI; MASS. CONST. art. XII; MASS. GEN. LAWS ch. 263, 6.
22See sources cited supra note 20. It should be noted, however, that this list of rights is by
no means exhaustive.
23 MASS. GEN. LAWS ch. 94C, 34.
24 See, e.g., Commonwealth v. Cousin, 873 N.E.2d 742, 746 n.8 (Mass. 2007) (explaining that
an individuals criminal record revealed a charge for possession of marijuana). In the
Commonwealth, the Department of Criminal Justice Information Services is charged with the
responsibility of maintaining criminal offender record information. See MASS. GEN. LAWS ch.
6, 168. Such information includes the data gathered about a named adult individual with
reference to a particular criminal charge from the time of arrest to the time of final
disposition. Estate of Strong v. Am. Drug Stores, Inc., No. CIV. A. 01-0851, 2002 WL 221028,
at *1 n.2 (Mass. Super. Ct. Feb. 6, 2002); see MASS. GEN. LAWS ch. 6, 167.
25 See In re Winship, 397 U.S. 358, 364 (1970) (Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due
Process Clause protects the accused against conviction except upon proof beyond a reasonable
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2012 Reasonable Suspicion of an Unjust Conclusion 881

the Commonwealth had to prove: (1) the substance in question was


marijuana; (2) the defendant possessed some perceptible amount of the
substance; and (3) the defendant did so knowingly or intentionally.26
Though the elements of this offense seemed straightforward, there was
significant case law pertaining to each.27
As to the first element, the SJC had stated [p]roof that a substance is a
particular drug need not be made by chemical analysis . . . .28 Rather, the
court had concluded that such proof may be made by circumstantial
evidence.29 Thus, the testimony of experienced police officers or users of a
particular drug were sufficient to support a finding that a particular
substance was marijuana;30 the Commonwealth was not required to
produce a laboratory-analysis report or the testimony of a qualified expert
to prove that a substance was illegal.31
In regard to the second element, the simplest way for the
Commonwealth to establish possession was to show that the marijuana
was actually found on the defendants person or was in an area under his
or her immediate control.32 The Commonwealth, however, was not
required to provide such clear evidence of possession to satisfy the
statute.33 Rather, a conviction could be sustained under theories of either
constructive or joint possession.34 Under a theory of constructive
possession, the Commonwealth was only required to prove the defendant
had knowledge coupled with the ability and intention to exercise

doubt of every fact necessary to constitute the crime with which he is charged.).
26 See MASS. GEN. LAWS ch. 94C, 34; MASS. COURT SYS., MASSACHUSETTS CRIMINAL MODEL

JURY INSTRUCTIONS NO. 7820: POSSESSION OF A CONTROLLED SUBSTANCE 1-2 (2009) [hereinafter
JURY INSTRUCTIONS: POSSESSION OF A CONTROLLED SUBSTANCE], available at
http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/
criminal/pdf/7820-possession-of-a-controlled-substance.pdf.
27 See infra text accompanying notes 28-38.
28 Commonwealth v. Dawson, 504 N.E.2d 1056, 1057 (Mass. 1987).
29 Id.
30 Id.
31Id. It should be noted, however, that the SJC suspect*ed+ it would be a rare case in
which a witnesss statement that a particular substance looked like a controlled substance
would alone be sufficient to support a conviction. Id. at 1057-58.
32 See Commonwealth v. Muller, No. 01-P-1757, 2002 WL 31686241, at *1 (Mass. App. Ct.

Nov. 27, 2002) (Absent evidence of actual possession, proof of constructive possession is
necessary.).
33 See Commonwealth v. Brzezinski, 540 N.E.2d 1325, 1331 (Mass. 1989); see, e.g.,

Commonwealth v. Minor, 716 N.E.2d 658, 659 (Mass. App. Ct. 1999) (holding that a defendant
was not a joint possessor where there was no evidence that he did more than contribute to
a pool of money with which the defendant effected [a] purchase).
34 See Brzezinski, 540 N.E.2d at 1331.
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dominion and control over the marijuana.35 Similarly, the theory of joint
possession required the Commonwealth to show that two or more
persons simultaneously and jointly acquired possession of a drug for their
own use and intended only to share it together.36
Regarding the final element, the Commonwealth had to prove that
such possession was either knowing or intentional.37 A jury was permitted
to find the existence of knowing or intentional possession if there was
evidence that the defendant possessed marijuana consciously, voluntarily,
and purposely, and not because of ignorance, mistake, or accident.38
As mentioned above, this law is no longer valid in the
Commonwealth.39 On January 2, 2009, the Massachusetts Legislature
enacted a statute decriminalizing the possession of marijuana in certain
quantities, effectively rendering moot the case-law developments
surrounding Massachusetts General Law chapter 94C, section 34.40

II. The Moving Force Behind the New Law

A. The Process: Initiative Petitions for a New Law in the


Commonwealth

According to the Massachusetts Declaration of Rights, the [l]egislative


power shall . . . be vested in the general court; but the people reserve to
themselves the popular initiative.41 The popular initiative is the power of
a specified number of voters to submit constitutional amendments and
laws to the people for approval or rejection.42 Thus, Article 48 of the
Massachusetts Constitution provides means for the public to participate
directly in the lawmaking process.43
However, Article 48 does not provide citizens with the ability to
propose laws in every area they choose.44 The State Constitutional
Convention of 1917-1918 sought a balance between competing impulses

35 Chandanais v. Commonwealth, 862 N.E.2d 46, 48 (Mass. 2007) (quoting Brzezinski, 540

N.E.2d at 1331).
36 Commonwealth v. Cosenza, No. 07-P-1535, 2009 WL 77970, at *1 (Mass. App. Ct. Jan. 14,

2009); see Minor, 716 N.E.2d at 659 (To be a joint possessor, one must actively and personally
participate in the initial procurement of the drugs.).
37 MASS. GEN. LAWS ch. 94C, 34 (2010); see JURY INSTRUCTIONS: POSSESSION OF A

CONTROLLED SUBSTANCE, supra note 26, at 1-2.


38 Commonwealth v. Cotto, 870 N.E.2d 109, 115 n.7 (Mass. App. Ct. 2007).
39 See MASS. GEN. LAWS ch. 94C, 32L.
40 See id.
41 MASS. CONST. art. XLVIII.
42 Id.
43 Hurst v. State Ballot Law Commn, 696 N.E.2d 531, 533 (Mass. 1998).
44 See MASS. CONST. art. XLVIII, 2 (listing the various excluded areas).
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2012 Reasonable Suspicion of an Unjust Conclusion 883

toward direct versus representative democracy.45 The results of that


balance appear in Article 48 itself, specifically prohibiting any
measure that relates to religion, religious practices or religious
institutions; . . . to the appointment, qualification, tenure,
removal, recall, or compensation of judges; . . . to the reversal of a
judicial decision; . . . to the powers, creation or abolition of
courts; . . . or that makes a specific appropriation of money from
the treasury of the [C]ommonwealth.46

Thus, absent a proposed law that falls within any of these prohibited areas,
the people are free to create initiatives of any sort.47
To originate an initiative petition for a law, at least ten qualified
voters of the Commonwealth [must] draw up and sign an original petition
on which they put forward the full text of the law they wish to have
enacted.48 Each original signer is required to obtain a voter registration
certification from either the board of registrars or the election commission
in the city or town where they are registered to vote.49 Additionally, [e]ach
certificate of voter registration must be signed by at least three members of
the board of registrars or election commission.50 These certificates, as well
as the original petition, must then be delivered to the Massachusetts
Attorney General no later than the first Wednesday in August.51
Once the Massachusetts Attorney General receives the certificates and
the original petition, he or she must then determin[e] whether the petition
is an acceptable subject of the Initiative . . . .52 If so, a fair and concise
summary is prepared and returned to the petitioners.53 Once the petitioners
receive it, they must file both the summary and the proposed law with the
Secretary of the Commonwealth.54 The Secretary thereafter prepares blank
initiative petition forms containing the State Attorney Generals summary
for the petitioners to use in gathering signatures.55

45 Hurst, 696 N.E.2d at 533.


46 MASS. CONST. art. XLVIII, 2.
47 See id.
48 State Ballot Question Petitions, Mass. Elections Division [hereinafter State Ballot Question
Petitions], http://www.sec.state.ma.us/ele/eleguide/guidelaw.htm (last visited June 2, 2012);
MASS. CONST. art. LXXIV, 3.
49 State Ballot Question Petitions, supra note 48.
50 Id.
51 Id.
52 Id.
53 MASS. CONST. art. XLVIII, pt. II, 3. If, on the other hand, the State Attorney General
determines the petition relates to an excluded matter, the petition will be dismissed. State
Ballot Question Petitions, supra note 48.
54 See State Ballot Question Petitions, supra note 48.
55 Id.
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After the Secretary prepares the initiative petition form, the petitioners
must gather a certain number of signatures in order for the petition to be
placed before the Massachusetts Legislature.56 However, [n]o more than
one-quarter of the certified signatures may come from any one county.57
Once the petitioners obtain the requisite number of signatures, the
Secretary transmits the initiative petition to the House Clerk for legislative
action . . . .58 The petition must then be reviewed by the Legislature, or a
subcommittee thereof, who must take action before the first Wednesday in
May.59 If the Legislature fails to comply with this procedure, the petitioners
may have the initiative petition placed on the ballot at the next regular
state election by obtaining a certain number of additional signatures on the
petition.60
If the initiative petition is ultimately placed on the state ballot as a
question, the Constitution requires at least thirty percent of the voters who
cast ballots to answer in the affirmative.61 Further, a majority of all the
casted ballots must also answer that question in the affirmative.62 Should
both these requirements be satisfied, the law proposed by the initiative
petition must take effect no later than thirty days following the conclusion
of the state election.63

B. The Massachusetts Sensible Marijuana Policy Initiative

On August 1, 2007, a Boston-based group known as the Committee for


Sensible Marijuana Policy (the Committee) took advantage of Article 48s
reservation to the people of the popular initiative.64 The Committee,
comprised of ten properly registered and certified voters of the
Commonwealth,65 filed with the State Attorney General an initiative
entitled An Act Establishing a Sensible State Marihuana Policy.66 The
initiative proposed to reduce the penalty for possession of less than one

56 Id. Specifically, the petition must contain certified signatures at least equal to 3% of the

total vote cast for all candidates for Governor . . . at the last state election. Id.
57 Id.
58 Id.
59 Id.
60 See State Ballot Question Petitions, supra note 48. The signatures of an additional 1/2 of
1% of the vote cast for Governor . . . at the last state election must be filed with the Secretary
of the Commonwealth. Id.
61 Id.
62 Id.
63 Id.
64 See Comm. for Sensible Marijuana Policy, The Initiative, SENSIBLE MARIJUANA POLY
(Aug. 1, 2008), http://sensiblemarijuanapolicy.org/home/initiative.
65 Id.
66 Id.
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ounce of marijuana to no more than a mere civil offense.67 The punishment


for committing this civil infraction would be a $100 fine.68 The initiative,
however, had no intent to change the criminal penalties for manufacturing,
trafficking, or distributing marijuana.69 Likewise, it left intact the criminal
penalties for operating a motor vehicle while under the influence of
marijuana.70
There were several reasons behind the Committees movement for
decriminalizing simple possession of marijuana.71 By removing criminal
sanctions, the Committee sought to remove the threat to offenders of
having a criminal record for minor possession of marijuana.72 Most
importantly, the Committee sought to save the Commonwealth significant
financial and law enforcement resources.73 According to Harvard
economist Jeffrey Miron, the Commonwealth was spending approximately
$29.5 million annually to arrest, process, and prosecute offenders charged
with possessing one ounce of marijuana or less.74
The Committees movement was met with significant opposition and
adversity.75 Specifically, the Coalition for Safe Streets (Coalition) was
formed to oppose the Committees movement to decriminalize simple
marijuana possession.76 The Coalition was supported by several notable
officials, including the Governor, the Attorney General, and district
attorneys throughout the Commonwealth.77 Together, these officials
argued that decriminalizing marijuana possession would promote drug
use and benefit drug dealers at a time when . . . marijuana has become
more potent.78 Additionally, [t]hey warned it would increase violence on
the streets and safety hazards in the workplace, and cause the number of
car crashes to rise as more youths drive under the influence.79 Essentially,
opponents believed the Committees initiative was nothing more than an

67 Id.
68 Id.
69 See Rick Holmes, Common Sense on Marijuana, METRO WEST DAILY NEWS (Mar. 30, 2008),
http://www.metrowestdailynews.com/opinions/x25233736.
70 Id.
71 Comm. for Sensible Marijuana Policy, supra note 64.
72 See id.
73 See id.
74 Holmes, supra note 69.
75 See, e.g., Dan Atkinson, Voters Asked to Loosen Marijuana Laws, NEWBURYPORTNEWS.COM
(Oct. 14, 2008), http://www.newburyportnews.com/local/x845850349/Voters-asked-to-loosen-
marijuana-laws.
76 Id.
77 See David Abel, Voters Approve Marijuana Law Change, BOS. GLOBE, Nov. 5, 2008, at B6.
78 Id.
79 Id.
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insidious attempt to decriminalize narcotics as a whole.80


As required by the Massachusetts Constitution,81 the Massachusetts
Attorney General eventually issued a summary of the initiative, which
ultimately was returned to the Committee to allow for signatures to be
obtained on the petition.82 In due course, the Committee collected more
than 80,000 valid petition signatures, approximately 15,000 more than
needed, to place the petition before the General Court.83
Once the Massachusetts Legislature received the petition, it had to
choose from one of the following courses of action: (1) vote to determine
whether the law should be enacted; or (2) fail to take action and force the
Committee to obtain additional signatures on its petition.84 Instead of
acting on the petition, the General Court chose the latter course of action
and ignored the Committees initiative.85 Thus, the Committee was
required to obtain additional signatures in order to realize its goal of
having the initiative placed on the state ballot.86 The Committee satisfied
this additional constitutional requirement on June 18, 2008, when the
Committee registered over 20,000 raw petition signatures with local
registrarsnearly 8000 more than required.87
On November 4, 2008, after months of debate between the proponents
and opponents of the Committees initiative, voters of the Commonwealth
took to the polls.88 Massachusetts voters overwhelmingly supported the
removal of criminal penalties for possession of a small amount of
marijuana.89 The Committees initiative ultimately was approved by a
margin of sixty-five percent in favor and thirty-five percent against.90
Accordingly, the initiative became effective as law in the Commonwealth
on January 2, 2009.91

80 James Kinsella, District Attorney Opposes Decriminalization of Marijuana, CAPE COD TODAY

(Sept. 8, 2008), http://www.capecodtoday.com/news/headlines/2008/09/08/district-attorney-


opposes-decriminalizat.
81 MASS. CONST. art. XLVIII, pt. II, 3, amended by MASS. CONST. art. LXXIV, 3.
82 See Comm. for Sensible Marijuana Policy, supra note 64.
83 Naoko Yoshida, Pots Shot, DIG BOSTON (July 1, 2008), http://digboston.com/
think/2008/07/13161/.
84 MASS. CONST. art. XLVIII, pt. IV, 2, amended by MASS. CONST. art. LXXXI, 1.
85 See Yoshida, supra note 83.
86 See MASS. CONST. art. XLVIII, pt. V, 2, amended by MASS. CONST. art. LXXXI, 3.
87 Yoshida, supra note 83.
88 See Abel, supra note 77.
89 On Marijuana Decriminalization in Massachusetts: The Voters Have Spoken, AM. CIVIL
LIBERTIES UNION OF MASS. 1 (Mar. 3, 2010), http://aclum.org/sites/all/files/education/
aclum_marijuana_decriminalization.pdf [hereinafter Marijuana Decriminalization].
90 Id.
91 See MASS. GEN. LAWS ch. 94C, 32L (2010); Jonathan Saltzman, Drug Law Puzzles Police,
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II. The New Law: MASS. GEN. LAWS ch. 94C, Section 32L

On January 2, 2009, An Act Establishing a Sensible State Marijuana


Policy (section 32L) officially became effective in the Commonwealth of
Massachusetts.92 Contrary to popular belief, however, section 32L did not
legalize possession of less than one ounce of marijuana.93 Rather, section
32L removed criminal sanctions for this infraction and replaced them with
a civil penalty of $100 and forfeiture of the marijuana.94 Further, unlike the
previous criminal penalties, under the new law repeat offenders are not
punished more harshly for each subsequent violation of section 32L.95
Instead, a section 32L violation is punishable with a $100 fine for each
isolated incident.96
Under section 32L, the penalty framework differs between adult and
juvenile offenders.97 Whereas it subjects adult offenders to only a $100 fine
and forfeiture of the contraband, it requires juvenile offenders to
additionally enter into and successfully complete a drug awareness
program within one calendar year of the offense.98 Should the juvenile fail
to comply with this additional requirement, the financial penalties may be
enhanced.99 Additionally, the juvenile and his or her parents become jointly
and severally liable for the increased amount.100
The police department of each individual city and town of the
Commonwealth enforces section 32L through a civil-citation process.101
Section 32L empowers any police officer with civil-enforcement authority
to issue a citation for a violation of this provision.102 The issuing officer may
cite the offender at the time and place of the violation; if that is not
possible, the officer may mail or deliver the citation to the last known
address of the offender within fifteen days of the commission of the

BOS. GLOBE (Dec. 25, 2008), http://www.boston.com/news/local/massachusetts/articles/2008/12


/25/drug_law_puzzles_police/.
92 See MASS. GEN. LAWS ch. 94C, 32L.
93 See id.
94 Id.
95 Mass. Exec. Office of Pub. Safety and Sec., Question 2 Law Enforcement Q&A, MASS.GOV,
http://www.mass.gov/eopss/law-enforce-and-cj/law-enforce/question-2-law-enforcement-q-
and-a.html (last visited June 2, 2012) [hereinafter Law Enforcement Q&A].
96 Id.
97 See MASS. GEN. LAWS ch. 94C, 32L.
98 See id. For section 32L purposes, a juvenile is any person who is under the age of
eighteen at the time of the infraction. See id.
99 See id.
100 Id.
101 Law Enforcement Q&A, supra note 95.
102 Id.
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offense.103
Once a police officer validly issues an offender a civil citation, the
offender has two options: (1) pay the $100 fine; or (2) request a formal
hearing on the matter within twenty-one days.104 While payments must be
directed to the city or town clerks office,105 requests for a formal hearing
are made to the clerk of the local district or municipal court.106 Should the
offender choose this latter option, he or she is not entitled to the full
panoply of substantive and procedural rights guaranteed a defendant in a
criminal proceeding nor will the case be tried before a jury.107 Additionally,
the citing officer is not required to be present or testify.108 Essentially,
section 32L hearings are akin to first-level clerk-magistrate hearings
[which are] currently held for civil motor vehicle infractions. Accordingly,
a police prosecutor or court liaison [will] be permitted to appear and rely
on the reports of other officers.109 In sum, section 32Ls enactment has
effectively vitiated the criminal process once employed by the
Commonwealth, and the rights attendant thereto, for those charged with
simple marijuana possession.110

IV. The Case Law: Authority to Stop, Arrest, and Search Based Solely
upon the Odor of Marijuana

Prior to the enactment of section 32L, a significant body of case law


developed in both the U.S. Supreme Court and the courts of the
Commonwealth regarding the extent to which the odor of narcotics
provides a law enforcement officer with probable cause to lawfully
conduct a search.111

A. Where It All Began: Johnson v. United States

In Johnson v. United States, an officer of the Seattle police narcotics


detail received information from a confidential informant.112 The informant,

103 MASS. GEN. LAWS ch. 40, 21D (2010).


104 Law Enforcement Q&A, supra note 95.
105 Id. (The money received *from a section 32L citation] goes to the city or town where
the offense occurred, regardless of the department that issued the citation.).
106 Id.
107 See MASS. GEN. LAWS ch. 40, 21D (stating that proceedings are not criminal in nature).
108 See Law Enforcement Q&A, supra note 95.
109 Id.
110 See supra Part III.
111See, e.g., Johnson v. United States, 333 U.S. 10, 13-14 (1948); Commonwealth v. Garden,
883 N.E.2d 905, 910 (Mass. 2008); Commonwealth v. Laskoski, 911 N.E.2d 231, 234 (Mass.
App. Ct. 2009).
112 Johnson, 333 U.S. at 12.
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2012 Reasonable Suspicion of an Unjust Conclusion 889

a known drug user, told the officer that unidentified individuals were
smoking opium in a nearby hotel room.113 The officer then contacted four
federal narcotics agents and proceeded toward the suspect hotel room.114
Both the officer and federal agents were experienced narcotics
investigators, and they immediately detected a strong odor of burning
opium upon entering the hotel hallway.115 The officers traced the odor to a
particular hotel room and knocked on the door.116 After the officers
knocked and announced their presence, they heard some shuffling or
noise in the room before the defendant ultimately opened the door.117
Once she did so, the officers told her they wanted to speak with her, at
which point she stepped aside and allowed them to enter.118 The officers
then confronted the defendant about the strong odor of opium.119 The
defendant, however, denied the existence of any such smell.120 The officers
then informed her she was under arrest and proceeded to conduct a search
of the room.121 The search revealed both incriminating opium and a
smoking apparatus.122 The defendant was then taken into custody for
violation of the Narcotic Drugs Import and Export Act.123
Prior to trial, the defendant filed a motion to suppress the evidence
obtained from her hotel room as a violation of the Fourth Amendment to
the U.S. Constitution.124 The U.S. District Court denied the defendants
motion to suppress, and she ultimately was convicted at trial.125 The U.S.
Court of Appeals for the Ninth Circuit affirmed the District Courts
ruling.126 The defendant appealed her conviction to the U.S. Supreme
Court.127
Though the U.S. Supreme Court ultimately reversed the defendants
conviction on separate grounds,128 it specifically rejected one of the

113 Id.
114 Id.
115 Id.
116 Id.
117 Id.
118 Johnson, 333 U.S. at 12.
119 Id.
120 Id.
121 Id.
122 Id.
123 See id.; see also 21 U.S.C. 174 (2006).
124 See Johnson, 333 U.S. at 12.
125 Id.
126 Id.; Johnson v. United States, 162 F.2d 562, 564 (9th Cir. 1947).
127 Johnson, 333 U.S. at 10.
128 See id. at 17.
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890 New England Law Review v. 46 | 877

arguments her counsel advanced.129 Essentially, defense counsel argued


that odors cannot be evidence sufficient to constitute probable cause
grounds for any search.130 In rejecting the defendants argument, the
Court explained:
At the time the entry was demanded the officers were possessed
of evidence which a magistrate might have found to be probable
cause for issuing a search warrant. . . . If the presence of odors is
testified to before a magistrate and he finds the affiant qualified
to know the odor, and it is one sufficiently distinctive to identify
a forbidden substance, this Court has never held such a basis
insufficient to justify issuance of a search warrant. Indeed it
might very well be found to be evidence of most persuasive
character.131

Accordingly, though not specifically in the context of marijuana, the U.S.


Supreme Court has held that the odor of a forbidden substance, detected
by one qualified to recognize it, is sufficient to establish probable cause to
conduct a search.132

B. The Law of the Commonwealth Before Section 32L: Warrantless


Vehicle Searches Based Solely Upon the Odor of Marijuana

In the Commonwealth of Massachusetts:


It has long been the rule that automobiles on the public highway
may be searched without a warrant, at least when, (1) there was
probable cause to believe that the car contains articles the officers
are entitled to seize, (2) there was a reasonable likelihood that the
vehicle could or would be moved out of the locality if the search
did not occur within a short time after the car had been
discovered, and (3) the probable cause was not discovered until
so late in time as to prevent the officers from securing a warrant
earlier.133

Probable cause to search exists where a law enforcement officer has


sufficient information to justify a reasonable person in believing that the
defendant . . . had committed or was committing [a] crime.134 If there is

129 See id. at 13.


130 Id.
131Id. Though many jurisdictions support the view espoused by the U.S. Supreme Court in
Johnson, there have been some dissenting views. State v. Schoendaller, 578 P.2d 730, 734
(Mont. 1978) (*T+o hold that an odor alone, absent evidence of visible contents, is deemed
equivalent to plain view might very easily mislead officers into fruitless invasions of privacy
where there is no contraband.).
132 Johnson, 333 U.S. at 13.
13330 KENT B. SMITH, MASSACHUSETTS PRACTICE: CRIMINAL PRACTICE & PROCEDURE 4.120
(3d ed. 2010) [hereinafter MASSACHUSETTS CRIMINAL PRACTICE].
134 Commonwealth v. Wunder, 556 N.E.2d 65, 67-68 (Mass. 1990).
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2012 Reasonable Suspicion of an Unjust Conclusion 891

probable cause to support a motor-vehicle search, it also justifies the


search of every part of the vehicle and any contents that may conceal the
object of the search, including all containers in the vehicle without
qualification as to ownership of the container and without a showing of
individualized probable cause for each container.135
Prior to the enactment of section 32L, the SJC, relying on Johnson,
concluded that the odor of marijuana was sufficient by itself to provide law
enforcement with probable cause to search a suspects vehicle.136 In
Commonwealth v. Garden,137 three officers of the Boston Police Department
were on patrol in the Mattapan neighborhood of Boston searching for
suspects in connection with a recently reported shooting.138 While on
patrol, the officers noticed the defendant, who fit the description of the
shooting suspect, enter a vehicle with two other males, and the officers
began to follow.139 While following the defendant, the officers ran an
electronic search for the vehicle, which revealed that the true owners
operating license was suspended.140 Unable to view the driver, the officers
activated their emergency equipment and conducted a stop for a suspected
motor vehicle infraction.141
Upon approaching the vehicle, one of the officers immediately noticed
a strong odor of burnt marijuana emanating from the occupants
clothing.142 As a result, they decided to conduct a search of the passenger
compartment.143 Failing to find marijuana or any other incriminating
evidence, one of the officers proceeded to conduct a search of the trunk
without the occupants consent.144 In so doing, they discovered several
firearms and two bags of marijuana.145 The police arrested the defendant
and charged him with marijuana possession and various firearm-related
offenses.146
Prior to trial in the Boston Municipal Court, the defendant filed a
motion to suppress all evidence obtained from the vehicle.147 After a

135 MASSACHUSETTS CRIMINAL PRACTICE, supra note 133, 4.120.


136 See Commonwealth v. Garden, 883 N.E.2d 905, 910-11 (Mass. 2008).
137 Id. at 905.
138 Id. at 908.
139 Id.
140 Id.
141 Id.
142 Garden, 883 N.E.2d at 908.
143 See id.
144 Id.
145 Id.
146 Id. at 907.
147 See id.
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hearing, the trial judge granted his motion to suppress.148 The


Commonwealth appealed the trial judges order to the SJC.149 The
Commonwealth averred that the officers search was based upon probable
cause because they detected the odor of burnt marijuana after lawfully
stopping the vehicle.150 Though the SJC ultimately affirmed the trial courts
order of suppression, the SJC agreed with the Commonwealths position
that the odor of marijuana can supply probable cause in appropriate
circumstances.151
Relying in part on Johnson v. United States,152 the SJC reasoned that
[a]lthough the odor of marijuana often has been considered in conjunction
with other factors in establishing probable cause . . . the odor of marijuana
is sufficiently distinctive that it alone can supply probable cause to believe
that marijuana is nearby.153 The Court was careful to limit its holding,
however, by explaining that probable cause to search can be based on the
odor of marijuana only when it is detected by an officer with the ability to
identify the smell.154 Based upon the law of the Commonwealth as it
existed at that time, the SJC put to rest any dispute about whether probable
cause could be based solely upon the odor of marijuana.155

C. The Law of the Commonwealth Before Section 32L: Warrantless


Searches of Ones Person Based Solely upon the Odor of Marijuana

Though the SJCs holding in Garden ended the dispute over whether
the odor of marijuana provided probable cause to search a vehicle, it left
unanswered the question of whether law enforcement could search ones
person based solely on the odor of marijuana.156 While that question has
been answered by the Massachusetts Appeals Court, it had yet to be ruled
upon by the Commonwealths highest court.157 In Commonwealth v.
Laskoski,158 two police officers responded to the report of a domestic dispute

148 Garden, 883 N.E.2d at 907.


149 Id.
150 Id.
151 Id. at 907-08.
152333 U.S. 10, 13 (1948) (finding that sufficiently distinct odors of controlled substances
may constitute probable cause).
153 Garden, 883 N.E.2d at 910-11.
154 Id. at 911.
155 See id. at 907-08 (*I+n appropriate circumstances the smell of marijuana can provide

probable cause to search all parts of a vehicle . . . .).


156 See id.
157 See, e.g., Commonwealth v. Laskoski, 911 N.E.2d 231, 234 (Mass. App. Ct. 2009).
158See id. It should be noted that even though this case was decided after section 32L was
enacted, the case concerned an incident that occurred prior to January 2, 2009. See id. at 232.
Thus, this case was decided based on the law as it existed on April 13, 2008. See id.
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2012 Reasonable Suspicion of an Unjust Conclusion 893

in progress at a parking lot in Greenfield.159 As the officers arrived on the


scene, the suspected couple separated and stopped arguing.160 The officers
then exited their vehicle and escorted each individual to opposite ends of
the parking lot.161 While speaking to the defendant, the interrogating officer
immediately noticed a strong odor of burnt marijuana emanating from the
defendants person.162
Because the officers perceived the incident as a heated domestic
argument, the officer interrogating the defendant decided to conduct a
protective frisk for weapons.163 In so doing, the officer felt and removed
two items from the defendants front pocket.164 Upon inspecting the items,
the officer discovered that one was an Altoid container and the other was a
snuff container.165 The officer then conducted a search of each container,
which revealed a small amount of suspected marijuana.166 The defendant
was arrested and charged with possession of marijuana in violation of
Massachusetts General Law chapter 94, section 34.167
Prior to trial, the defendant moved to suppress the marijuana as the
fruit of an unlawful protective frisk,168 arguing that he was subjected to a
protective frisk in the absence of reasonable articulable suspicion that he
was armed with a dangerous weapon.169 The Commonwealth countered
that the officer was constitutionally authorized to search the defendant
because he detected a strong odor of burnt marijuana emanating from the
defendants clothing.170 After the hearing, the trial judge adopted the
defendants argument and granted his motion to suppress.171
On appeal, the defendant reaffirmed the position he advanced at
trial.172 The Commonwealth conceded to the defendants argument but
maintain[ed] that the officer had probable cause to search the defendant
because of the strong odor of burnt marijuana coming from him.173

159 Id.
160 Id.
161 Id.
162 Id.
163 Laskoski, 911 N.E.2d at 233.
164 Id.
165 Id.
166 Id.
167 Id. at 232.
168 See id.
169 Laskoski, 911 N.E.2d at 232.
170 Id.
171 Id.
172 See id.
173 Id.
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894 New England Law Review v. 46 | 877

Accepting the trial courts explicit finding that the officer detected a strong
odor of marijuana emanating from the defendants person, the appeals
court framed the issue before it as whether there was probable cause to
search the defendant for marijuana.174 The court, citing both Johnson and
Garden, conclude[d] that the odor of marijuana, by itself, coming from the
defendants person provided probable cause to search [him].175 Thus,
based upon Massachusetts law as it existed at that time, the Appeals Court
concluded that law enforcement officers in the Commonwealth were
constitutionally permitted to search a suspects person based solely upon
the odor of marijuana.176

D. The Law of the Commonwealth After Section 32L: Searches and


Seizures Based Solely upon the Odor of Marijuana

Section 32Ls enactment created significant confusion and controversy


throughout the Commonwealths criminal courts.177 On one side, there was
existing case law authorizing searches and seizures based solely upon the
odor of marijuana.178 On the other, there was the undeniable fact that
possession of less than one ounce of marijuana was no longer a criminal
offense in Massachusetts.179 As such, in Commonwealth v. Cruz, the SJC
issued a decision to reconcile these two competing arguments.180
In Cruz, two plain-clothed officers were on routine patrol in an
unmarked unit in the Jamaica Plain area of Boston.181 While on patrol, the
officers observed a vehicle improperly parked in front of a fire hydrant.182
Inside the vehicle, the officers could see two individualsa driver and the
defendant, who was seated in the front passenger seat.183 As the officers
pulled closer to the vehicle, one officer observed the driver light a small
cigar commonly known to mask the odor of marijuana smoke.184 After
making these observations, the officers pulled alongside the vehicle and

174 Id. at 233.


175 Laskoski, 911 N.E. at 233.
176 See id.
177See Commonwealth v. Cruz, 945 N.E.2d 899, 904-05 (Mass. 2011) (discussing the trial
court and SJCs struggle with the issue).
178 See Commonwealth v. Garden, 883 N.E.2d 905, 910 (Mass. 2008); Laskoski, 911 N.E.2d at
234.
179 See MASS. GEN. LAWS ch. 94C, 32L (2010).
180 See Cruz, 945 N.E.2d at 904-05.
181 See id. at 902.
182 See id. at 902, 904.
183 Id. at 902-03.
184 Id. at 903.
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2012 Reasonable Suspicion of an Unjust Conclusion 895

asked the driver to explain why he was parked in front of a fire hydrant.185
When the driver responded, one of the officers noticed that the defendant
was smoking a cigar.186 Both officers then exited their cruiser and
approached each side of the vehicle occupied by the defendant and
driver.187 From the drivers side, one officer detected a faint odor of burnt
marijuana.188
Acting on this odor, the officers ordered both the defendant and driver
to exit the vehicle.189 After they complied, one officer asked the defendant if
he had anything on his person, to which the defendant responded that
he had a little rock for myself in his pocket.190 At no time prior to the
seizure of the contraband had either officer advised the defendant of his
Miranda rights.191 Nevertheless, the officer reached into the defendants
pocket, retrieved an item which he believed to be crack cocaine, and seized
the alleged narcotic.192
Prior to trial, the defendant moved to suppress both the crack cocaine
as well as the statement he provided to the officer.193 Recognizing the
passage of section 32L, the trial court concluded that the officers were not
permitted to order the defendant from the vehicle based solely upon the
odor of marijuana,194 and the court granted the defendants motion to
suppress.195 The Commonwealth then sought interlocutory review before a
single justice of the SJC.196 The single justice allowed the Commonwealths
motion, and the SJC thereafter granted the defendants motion for direct
appellate review before the Courts full bench.197
Before the SJC, the Commonwealth asserted that despite the
decriminalization of simple marijuana possession, the odor of marijuana
still provided law enforcement officers with probable cause, or at least
reasonable suspicion, that a crime is being committed.198 Though the SJC
recognized that it previously held that the odor of marijuanaby itself

185 Id.
186 Cruz, 945 N.E.2d at 903.
187 Id.
188 Id.
189 Id.
190 Id. at 904.
191 Id.
192 Cruz, 945 N.E.2d at 904.
193 Id. at 902.
194 See id. at 904.
195 Id. at 902.
196 Id.
197 Id.
198 See Cruz, 945 N.E.2d at 904.
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896 New England Law Review v. 46 | 877

established probable cause, the court explained that it needed to reconsider


its jurisprudence in light of the legislative change.199
At the outset, the SJC agreed with the Commonwealth that the officers
stop of the vehicle was lawful.200 Because the vehicle was unlawfully
parked in front of a fire hydrant, the officers had the legal authority to
issue the driver a traffic citation.201 The court was careful to point out,
however, that [b]ecause the stop did not end with a written citation and
an instruction to the driver to move his vehicle away from the hydrant,
further investigation by the officers required additional suspicious
conduct.202
The Commonwealth relied on the fact that the officers detected a faint
odor of burnt marijuana to justify their exit order to the defendant.203 In
rejecting the Commonwealths position in this regard, the court explained
that the standard of reasonable suspicion is tied, by its very definition, to
the suspicion of criminal, as opposed to merely infractionary, conduct.204
Because possession of less than one ounce of marijuana was no longer a
crime, and because there were no facts in the record to support a
reasonable suspicion that the defendant possessed more than one ounce of
marijuana, the court concluded that the officers lacked the suspicion
necessary to justify their detention of the defendant.205
Lastly, the Commonwealth argued that even if the officers did not have
reasonable suspicion to detain the defendant, they certainly had probable
cause to search the vehicle based upon the odor of marijuana, which in
turn would have justified the exit order to the defendant.206 The court
conceded that probable cause is seemingly a broader standard than
reasonable suspicion in the sense that probable cause can be based on a
reasonable belief that contraband is present.207 Nevertheless, the court
examined the history of the probable cause standard as it related to search
warrants and determined that the standard was meant to ferret out
criminal, as opposed to civil, violations.208 That being the case, the court
found the Commonwealths argument unpersuasive and concluded that
the odor of marijuana is insufficient to meet not only the probable cause

199 Id. at 904-05.


200 Id. at 905.
201 Id.
202 Id. at 906.
203 Id. at 908.
204 Cruz, 945 N.E.2d at 908.
205 See id.
206 See id. at 911.
207 See id. at 911-12.
208 See id. at 912-13.
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2012 Reasonable Suspicion of an Unjust Conclusion 897

standard but also the lower standard of reasonable suspicion.209


Accordingly, the SJC affirmed the trial courts order granting the
defendants motion to suppress.210

ANALYSIS

V. The SJC Correctly Determined that the Odor of Marijuana No


Longer Provides Probable Cause to Arrest or Search but Failed to
Articulate an Appropriate Legal Basis.

There is no dispute that applicable U.S. Supreme Court jurisprudence


holds that sufficiently distinctive odors can establish probable cause to
arrest or search in appropriate circumstances.211 But the Commonwealths
legislative scheme surrounding marijuana possession is far from the
mainstream.212 This, in large part, is the reason why the SJC reached the
inevitable conclusion that the odor of marijuana no longer provides
probable cause to arrest or search.213 To be clear, this Note in no way
questions the validity of the SJCs holding in this regard. In fact, this Note
is in complete harmony with the SJCs position on that point of law.
However, the SJCs reasoning as to why the odor of marijuana no longer
provides probable cause is somewhat lacking.
In Cruz, the SJC explained that the standard for validating a
warrantless search is the same as that used by a magistrate in considering
an application for a search warrant.214 Because search warrants may only be
issued by magistrates authorized to issue *them+ in criminal cases*,+215
and because search warrants were only instituted and pursued for the
suppression of crime*,+216 the court reasoned that the probable-cause
analysis should be confined only to criminal offenses.217 Since simple
marijuana possession is no longer a criminal violation, the court held that

209 Id. at 914 (Cowin, J., dissenting).


210 Cruz, 945 N.E.2d. at 914.
211See Johnson v. United States, 333 U.S. 10, 13 (1948) (If the presence of odors is testified
to before a magistrate and he finds the affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden substance, this Court has never held such a
basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to
be evidence of most persuasive character.); see also supra text accompanying note 137.
212 See supra Parts II-III.
See Cruz, 945 N.E.2d at 905 (Our analysis must give effect to the clear intent of the
213

people of the Commonwealth . . . .).


214 Id. at 912.
215 MASS. GEN. LAWS ch. 276, 2B (2010).
216 Robinson v. Richard, 79 Mass. 454, 456 (1859).
217 See Cruz, 945 N.E.2d at 913.
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898 New England Law Review v. 46 | 877

the odor of marijuana, standing alone, no longer provides law enforcement


with probable cause to believe that any criminal act has been committed.218
This argument, while not legally infirm, was not the strongest reason the
SJC could have used in support of its holding.219 In fact, a much stronger
legal argument exists by drawing a distinction between the probable- cause
analysis under state and federal constitutional principles.220
As noted above, the SJCs Garden decision was based heavily on the
U.S. Supreme Courts decision in Johnson.221 Because Johnson was decided
by the U.S. Supreme Court, there is no doubt that the Court applied
principles of Fourth Amendment jurisprudence to support its conclusion.222
While U.S. Supreme Court decisions are binding on the states regarding
issues of federal constitutional law, and often times are highly persuasive,
they are in no way binding on issues of state constitutional law.223 Indeed, it
has long been settled that *t+he Federal Bill of Rights did not supersede
those of the states.224 Nor were state constitutional provisions adopted to
mirror the [F]ederal Bill of Rights.225 Thus, *i+t is fundamental that state
courts be left free and unfettered . . . in interpreting their state
constitutions.226
The Massachusetts Constitution is unique in that it not only predates
the Federal Constitution, but was also used as a model for it . . . .227
Because the Massachusetts Constitution is a sovereign document, the SJC
has explained it has an obligation to make an independent determination
of rights, liberties, and obligations for *citizens of the Commonwealth+.228
Though the SJC often defers to the U.S. Supreme Courts interpretation of

218 See id. at 911.


219 See infra text accompanying notes 221-57.
220 See infra text accompanying notes 221-56.
221 See Commonwealth v. Garden, 883 N.E.2d 905, 911 (Mass. 2008).
222 See Johnson v. United States, 333 U.S. 10, 13 (1948).
223 See Minnesota v. Natl Tea Co., 309 U.S. 551, 557 (1940).
Justice Hans A. Linde, First Things First: Rediscovering the States Bills of Rights, 9 U. BALT.
224

L. REV. 379, 381 (1980).


225 Justice William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90

HARV. L. REV. 489, 501 (1977).


226 Natl Tea Co., 309 U.S. at 557.
227Honorable Roderick L. Ireland, How We Do It in Massachusetts: An Overview of How the
Massachusetts Supreme Judicial Court Has Interpreted Its State Constitution to Address
Contemporary Legal Issues, 38 VAL. U. L. REV. 405, 407 (2004) (internal footnote omitted). *T+he
state constitutionsparticularly that of Massachusettswere the greatest single influence on
the Federal Constitution. ELISHA P. DOUGLASS, REBELS AND DEMOCRATS: THE STRUGGLE FOR
EQUAL POLITICAL RIGHTS AND MAJORITY RULE DURING THE AMERICAN REVOLUTION 32 (1955).
228 Charles G. Douglas, III, State Judicial ActivismThe New Role for State Bills of Rights, 12

SUFFOLK U. L. REV. 1123, 1145 (1978) (internal quotation marks omitted).


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2012 Reasonable Suspicion of an Unjust Conclusion 899

cognate provisions in the Federal Constitution, the SJC has stated that it is
free to interpret *the Massachusetts+ Constitution differently from the
manner in which the [U.S.] Supreme Court interprets basically the same
language in the *Federal+ Constitution.229
To support its conclusion that the odor of marijuana no longer
provides probable cause to arrest or search, the SJCs analysis should have
proceeded under Article 14 of the Massachusetts Declaration of Rights.230
Article 14 provides in relevant part: Every subject has a right to be secure
from all unreasonable searches, and seizures, of his person, his houses, his
papers, and all his possessions.231 It was written in the historical context
of the abuses of governmental power inflicted on the colonists by British
officials, and . . . was directed at the unlawful invasion of privacy rights by
those officials. 232 Like the Fourth Amendment, Article 14:
[W]as intended by its drafters not merely to protect the citizen
against the breaking of his doors, and the rummaging of his
drawers, but also to protect Americans in their beliefs, their
thoughts, their emotions and their sensations by conferring, as
against the government, the right to bet let alonethe most
comprehensive of rights and the right most valued by civilized
men.233

Although the language of Article 14 closely tracks that found in the Fourth
Amendment to the U.S. Constitution, *t+he Massachusetts Supreme
Judicial Court interprets . . . Article 14 . . . as providing greater protection to
its citizens than does the Fourth Amendment.234
Though, the SJC has already found that Article 14 provides greater
constitutional protection than the Fourth Amendment in a variety of
contexts,235 none could have provided greater support for the courts Cruz

229 See Suffolk Dist. Atty for Suffolk Dist. v. Watson, 411 N.E.2d 1274, 1300 (Mass. 1980)

(Quirico, J., dissenting).


230 See MASS. CONST. art. XIV.
231 Id.
232 Commonwealth v. Gonsalves, 711 N.E.2d 108, 115 (Mass. 1999).
Commonwealth v. Blood, 507 N.E.2d 1029, 1034 (Mass. 1987) (citation omitted) (quoting
233

Boyd v. United States, 116 U.S. 616, 630 (1886)); Olmstead v. United States., 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting) (citation omitted).
234Mark W. Dunderdale, Totality of the Suspicious Circumstances: Airport Drug Courier Profile
Use in Massachusetts Since Commonwealth v. Torres, 5 SUFFOLK J. TRIAL & APP. ADVOC. 125,
126 (2000).
235 See, e.g., Commonwealth v. Stoute, 665 N.E.2d 93, 97 (Mass. 1996) (holding that a suspect

is seized under Article 14 once a police officer has initiated pursuit with obvious intent of
requiring the suspect to submit to questioning); Commonwealth v. Lyons, 564 N.E.2d 390, 392
(Mass. 1990) (holding that Article 14 forbids use of the totality of the circumstances test in
determining whether reasonable suspicion exists to justify an automobile stop);
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900 New England Law Review v. 46 | 877

decision than its holding in Commonwealth v. Upton.236 In Upton, the SJC was
confronted with the issue of whether probable cause to issue a search
warrant should be determined by a stricter standard in th[e]
Commonwealth than under the Fourth Amendment . . . .237 In answering
that question, the SJC explained *t+he Federal test lacks the precision that .
. . can and should be articulated in stating a test for determining probable
cause.238 Accordingly, the SJC rejected the totality of the circumstances
approach in determining probable cause that previously was adopted by a
majority of the U.S. Supreme Court.239
Having decided the federal standard was unacceptably shapeless and
permissive,240 the SJC sought to develop a more rigorous standard to be
applied by the courts of the Commonwealth in evaluating the existence of
probable cause.241 To accomplish that objective, the SJC analyzed the extent
to which Article 14 provides greater protection than the Fourth
Amendment in the probable-cause context.242 The SJC concluded that
Article 14 provides more substantive protection to criminal defendants
than does the Fourth Amendment in the determination of probable
cause.243 On this basis, the SJC held that the test for determining probable
cause is stricter under [Article] 14 . . . than under the Fourth
Amendment.244
With this legal backdrop in mind, the SJC should have supported its
conclusion using principles of state constitutional law rather than using an
analysis of search warrants and their underlying statutory framework.245
Essentially, the SJC should have held that because the test for probable
cause is stricter under Article 14 than under the Fourth Amendment, and
because Johnson was decided under principles of Fourth Amendment
jurisprudence, Johnson could no longer be used as persuasive authority in

Commonwealth v. Amendola, 550 N.E.2d 121, 125 (Mass. 1990) (adopting an automatic
standing rule under Article 14 permitting a criminal defendant to challenge the
constitutionality of a search or seizure even where he or she lacks a reasonable expectation of
privacy in the place or object searched or seized); Blood, 507 N.E.2d at 1037 (holding that
Article 14 forbids warrantless electronic surveillance of conversations where only one party to
the conversation provided consent).
236 476 N.E.2d 548 (Mass. 1985).
237 Id. at 550.
238 Id. at 556.
239 Id.
240 Id. (quoting Commonwealth v. Upton, 458 N.E.2d 717, 724 (Mass. 1983)).
241 See id. at 554.
242 See Upton, 476 N.E.2d at 556.
243 Id.
244 Id. at 550.
245 See supra text accompanying notes 214-217.
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2012 Reasonable Suspicion of an Unjust Conclusion 901

light of section 32Ls enactment.246 Having failed to include this analysis in


its Cruz opinion, the SJC missed an opportunity to clarify the distinction
between state and federal law as it relates to the probable-cause analysis.247
Though the court correctly held that the odor of marijuana, by itself, no
longer satisfies the probable cause standard, the SJCs supporting legal
analysis should have been derived from Article 14.248

VI. The Proposed Standard: Where Cruz Went Wrong

The salient issue before the SJC in Cruz was whether the odor of
marijuana, standing alone, continued to provide law enforcement with
probable cause to arrest and search in light of section 32Ls enactment.249
Simply resolving this issue in the negative, as the SJC did, would have
been more than sufficient to satisfy the dispute between the parties.
Nevertheless, the SJC took a proverbial quantum leap when it
determined that the odor of marijuana failed to satisfy even the minimal
level of suspicion required to support a Terry stop.250
By concluding that the odor of marijuana fails to provide law
enforcement with any level of constitutional justification, the SJC
significantly undercut the integrity of its Cruz opinion as a whole.251
Additionally, the court effectively removed the authority of police to
enforce section 32L.252 Cruz fails to account for the fact that simple
marijuana possession has not been legalized, and law enforcement is still
responsible for issuing civil citations for possession of less than one ounce
of marijuana.253
To determine the appropriate scope of detention for law enforcement
to issue a section 32L citation, the law surrounding civil motor vehicle
infractions is particularly instructive.254 Under Massachusetts statutory law,
a police officer who observes a civil motor vehicle infraction is authorized
to issue the violator a written warning or traffic citation.255 There is no
formal trial on the violation, and the offender is only entitled to a hearing if
he or she chooses to appeal.256 The violators payment of the citation

246 See supra text accompanying notes 221-245.


247 See supra text accompanying notes 221-245.
248 See supra text accompanying notes 221-245.
249 See Commonwealth v. Cruz, 945 N.E.2d 899, 902 (Mass. 2011).
250 See id. at 908.
251 See infra text accompanying note 253.
252 See Cruz, 945 N.E.2d at 908.
253 See MASS. GEN. LAWS ch. 94C, 32L (Supp. 2011).
254 See infra text accompanying notes 269-77.
255 MASS. GEN. LAWS ch. 90C, 3 (2010).
256 See id.
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operates as a final disposition of the matter.257 Additionally, as under


section 32L, nothing in the applicable statute confers upon law
enforcement the authority to search a violators person or vehicle.258
Massachusetts law provides that a police officer is authorized to stop
a motorist in order to issue a citation for automobile law violations.259
There is no litmus test to determine how long an officer may detain an
individual to issue a traffic citation.260 Under the applicable case law,
officers are entitled to conduct an investigation reasonably related in
scope to the circumstances that justified the [stop] in the first place.261
The officer is not, without other justification, entitled to further detain the
occupants of the vehicle nor to conduct a warrantless search.262 In sum, if
the driver of the car produces a valid license and registration, the
officer . . . may issue a citation for the traffic offense and must then allow
the car to continue on its way.263
Because simple marijuana possession has been reduced to a civil
infraction, punishable only by a citation, it should be likened to a civil
motor vehicle infraction. Indeed, the official website for the Executive
Office of Public Safety and Security explains that section 32L hearings are
similar to those currently held for civil motor vehicle infractions.264
Moreover, both traffic and section 32L citations carry no possibility of
criminal sanctions, and each imposes only financial penalties.265 On this
basis, there is more than ample ground to support the conclusion that these
similarly situated offenses should be treated alike. Because these two civil
infractions share nearly an identical process, the scope of authority for law
enforcement to stop and issue a citation should be the same for each.
It is beyond contention that the scope of intrusion for a traffic citation
is significantly less than that of an arrest.266 The U.S. Supreme Court made
this clear in Berkemer v. McCarty, when the Court determined that a routine

257 Id.
258 See id.
259 Commonwealth v. Mullen, 664 N.E.2d 854, 857 (Mass. App. Ct. 1996).
260 See infra text accompanying notes 278-84.
261
United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting United States v.
Cummins, 920 F.2d 498, 502 (8th Cir. 1990)).
262 State v. Ladson, 979 P.2d 833, 844-45 (Wash. 1999) (Madsen, J., dissenting).
263Commonwealth v. Alvarez, 692 N.E.2d 106, 108 (Mass. App. Ct. 1998) (internal citations
omitted).
264 Law Enforcement Q&A, supra note 95.
265 MASS. GEN. LAWS ch. 90C, 3 (2010); ch. 94C, 32L (2010).
266 See, e.g., Commonwealth v. Gordon, 716 N.E.2d 1036, 1038 (Mass. App. Ct. 1999)
(Miranda warnings . . . are unnecessary in the typical traffic stop, . . . even though one who is
stopped by a police officer for a traffic violation . . . does not feel free to leave. (internal
citation omitted)).
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2012 Reasonable Suspicion of an Unjust Conclusion 903

traffic stop does not constitute custody for the purpose of issuing
Miranda warnings.267 In recognition of this holding, law enforcements
authority to detain a suspect for a violation of section 32L should be the
same as that constitutionally provided for with civil motor vehicle
infractions.
Unlike the SJCs decision in Cruz, this Note provides both a practical
and reasonable resolution to the tension between section 32L and existing
search-and-seizure jurisprudence in Massachusetts. In light of the
similarities between sanctions for section 32L and civil motor vehicle
infractions, the level of constitutional justification provided by the odor of
marijuana should keep the scope of intrusion the same for each. To further
that objective, the appropriate balance between law enforcements civil
citation authority and section 32Ls decriminalization of simple marijuana
possession is that the odor of marijuana should now provide law
enforcement with reasonable suspicion that marijuana is nearby.268
Opponents will argue that the SJC could never constitutionally adopt
the analysis set forth above. They will assert that, as the SJC explained in
Cruz, the probable cause and reasonable suspicion analyses contemplate
only justification to stop or arrest for criminal but not civil violations.269 Any
such suggestion, however, would be entirely without merit.
The SJCs holding that the probable-cause and reasonable-suspicion
analyses have no application to infractionary conduct flies in the face of the
its holding in Commonwealth v. Washington.270 In Washington, the defendant
filed a motion to suppress physical evidence on the ground that law
enforcement obtained the evidence as the result of an unlawful exit order
from his vehicle.271 In affirming the trial courts denial of the defendants
motion to suppress, the SJC explained that [p]robable cause is the
appropriate level of certainty for the issuance of a seat belt law citation
because that issuance concludes a police officers determination of a civil
motor vehicle infraction.272 Stated otherwise, the Washington case saw the
SJC apply the probable cause standard to a non-criminal infraction.273
At the outset, it must be noted that Washington was decided by the SJC
in 2011approximately six weeks before Cruz274 and more than two years

267 Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984).


268 See infra text accompanying note 271-77.
269 See Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Mass. 2011) (citing Commonwealth v.
Silva, 318 N.E.2d 895 (Mass. 1974)).
270 944 N.E.2d 98 (Mass. 2011).
271 Id. at 103.
272 Id. at 105 (citing MASS. GEN. LAWS ch. 90C, 3(A)(2)).
273 See id.
274 See Cruz, 945 N.E.2d at 899; Washington, 944 N.E.2d at 98.
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after section 32L was enacted.275 For the SJC to reach two diametrically
opposed conclusions on an identical subject less than two months apart
shows a significant flaw in the courts legal reasoning.276 Additionally, it
further supports the position that the odor of marijuana should continue to
provide law enforcement with at least some level of constitutional
justification to detain a suspected violator of section 32L.
Opponents will assert that use of the reasonable suspicion standard to
justify investigatory detentions under section 32L would violate both the
state and federal constitutions. Such an argument, however, would
misconstrue the true scope of the reasonable-suspicion analysis.277
Under both the Massachusetts and Federal Constitutions, law
enforcement officers are entitled to make a threshold inquiry where
suspicious conduct gives the officer reason to suspect that a person has
committed, is committing, or is about to commit an offense.278 Police are
permitted to detain a suspect during an investigatory stop,279 as long as the
detention is commensurate with the purpose of the stop.280 Such
detention may last as long as necessary, so long as the police diligently
pursue[] a means of investigation that [i]s likely to confirm or dispel their
suspicions quickly, during which time it [i]s necessary to detain the
[suspect].281
Under the Cruz decision, there is essentially no authority for law
enforcement to detain a suspect for the purpose of ascertaining whether a
section 32L violation has occurred nor is there any legal basis to detain a
suspect pending issuance of a citation when the violation has been
confirmed.282 Under the courts opinion, it appears that law enforcement
must run alongside the suspect while issuing the citation in order to
comply with the constitutional mandate.283 This anomalous consequence of
the SJCs opinion surely could not have been intended. Because section 32L
violations are similar, if not functionally the same as, civil motor vehicle
infractions, law enforcement must be given the authority to detain a
suspect based upon the odor of marijuana to determine whether a section

275 See supra text accompanying note 8.


276 See supra text accompanying notes 27474-75.
277 See infra text accompanying notes 278-81.
278 See Terry v. Ohio, 392 U.S. 1, 30 (1968); Commonwealth v. Stoute, 665 N.E.2d 93, 98
(Mass. 1996).
279 Commonwealth v. Sinforoso, 749 N.E.2d 128, 133 (Mass. 2001).
280Commonwealth v. Torres, 674 N.E.2d 638, 644 (Mass. 1997) (quoting Commonwealth v.
Ellsworth, 671 N.E.2d 1001, 1003 (Mass. App. Ct. 1996)).
281 United States v. Sharpe, 470 U.S. 675, 686 (1985).
282 See Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Mass. 2011).
283 See supra text accompanying note 282.
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2012 Reasonable Suspicion of an Unjust Conclusion 905

32L citation is warranted under the circumstances.284


The Massachusetts Appeals Court addressed this issue to some extent
in Commonwealth v. Daniel.285 In Daniel, the defendants were occupants of
an SUV that had a defective drivers-side headlamp.286 An on-duty police
officer noticed the violation and observed the vehicle as the operator made
an abrupt left turn in front of him without signaling.287 Upon activation of
the cruisers blue lights, the operator of the SUV came to an immediate
stop in the middle of the road blocking all through traffic.288 As the officer
approached the vehicle from the passenger side, as was his custom, he
could see the passenger lean forward with his head down, as his shoulders
rocked back and forth.289
When the officer arrived at the passenger door, the window was down,
the passenger was upright, and the odor of marijuana emanated from the
car.290 The officer then inquired about the presence of the drug and the
operator of the vehicle willingly produced two small baggies of marijuana,
placing them both on the dashboard.291 Likewise, the passenger emptied
his pockets of a passport, keys, and a folding knife, also placing them on
the dashboard.292 The officer then ordered the passenger out of the vehicle
and conducted a pat-frisk of his person for drugs and weapons.293 He
instructed the passenger to take a seat on the front bumper of his cruiser as
he conducted a search of the driver.294 A subsequent search of the glove box
uncovered a loaded semi-automatic pistol, and both occupants were placed
under arrest.295
To reconcile these two decisions, it should be noted that in Cruz the
court held that without at least some other additional fact to bolster a
reasonable suspicion of actual criminal activity, the odor of burnt marijuana
alone [could not] reasonably provide suspicion of criminal activity to
justify an exit order.296 However, in Daniel, the court recognized that the
odor of burnt marijuana had been significantly bolstered not only by the

284 See supra text accompanying notes 268-81.


285 962 N.E.2d 213 (Mass. App. Ct. 2012).
286 Id. at 215.
287 Id.
288 Id.
289 Id.
290 Id.
291 Daniel, 962 N.E.2d at 216.
292 Id.
293 Id.
294 Id.
295 Id.
296 Commonwealth v. Cruz, 945 N.E.2d 299, 310 (Mass. 2011).
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drivers erratic and dangerous operation of the SUV but by the passengers
movements in the vicinity of the glove box.297 This combination of facts
effectively provided the officer with the elevated standard of probable
cause, exceeding reasonable suspicion, and thereby justifying the officers
actions in conducting a search of the vehicle under the motor vehicle
exception to the warrant requirement rule.298
Had the officer smelled the odor of burnt marijuana under
circumstances that did not involve traffic violations, furtive movements, or
any other combination of bolstering criteria, and then in light of Cruz, he
would not have had the authority to even stop the vehicle much less
inquire as to the presence of any drugs.299 Therefore, the courts holding in
Daniel reinforces the assertion that had the mere odor of burnt marijuana,
by itself, provided the officer with reasonable suspicion under those same
circumstances to conduct a threshold inquiry as to the presence of any
drugs, then arguably the results would have been the same.300 Presumably
the driver would still have voluntarily relinquished the drugs in her
possession and the passenger would almost certainly have exhibited the
same furtive movements in his attempt to conceal the weapon in the glove
box.301
Given the foregoing, the SJCs current reasoning essentially renders
section 32L unenforceable. The decision denies police officers the minimum
authority to make inquiries pursuant to the reasonable suspicion standard
when confronted with the odor of burnt marijuana, absent additional facts,
such as those outlined in Daniel.302 This limits law enforcements ability to
investigate suspected section 32L violations.303
The analysis set forth above represents the best resolution to an
obviously difficult legal issue. It recognizes the need for law enforcement
to retain the authority to conduct a threshold inquiry to issue citations for

297 962 N.E.2d at 218.


298 Commonwealth v. Cast, 556 N.E.2d 69, 79 (Mass. 1990) The scope of a warrantless
search is one authorized by an exception to the Fourth Amendment and is the same as one
issued by a magistrate, thus it follows that [t]he scope of a warrantless search of an
automobile . . . is not defined by the nature of the container in which the contraband is
secreted [,but rather] . . . by the object of the search and the places in which there is probable
cause. United States v. Ross, 456 U.S. 798, 824 (1982).
299 Cruz, 945 N.E.2d at 310 (*Section 32L+ has changed the status of possessing one ounce

or less of marijuana from a crime to a civil violation, [thus] . . . the odor of burnt marijuana
alone cannot reasonably provide suspicion of criminal activity . . . .).
300 See 962 N.E.2d at 219.
301 Id. at 216, 218.
302 See id.
303 See Cruz, 945 N.E.2d at 908 (*T+he lesser standard of reasonable suspicion is tied, by its

very definition, to the suspicion of criminal, as opposed to merely infractionary, conduct.).


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2012 Reasonable Suspicion of an Unjust Conclusion 907

violations of section 32L, while at the same time recognizing that


possession of less than one ounce of marijuana is no longer a criminal
offense in the Commonwealth.304 Accordingly, if the SJC has occasion to
review the issues squarely addressed by this Note, it should adopt the
analysis set forth herein and conclude that the odor of marijuana, standing
alone, now provides law enforcement with reasonable suspicion to conduct
an investigatory detention.

CONCLUSION

The SJCs decision in Cruz renders section 32L nothing more than a
mere nullity. Under the courts opinion, law enforcement no longer has the
authority to stop or detain a suspect based solely upon the odor of
marijuana. Without such authority, law enforcement will be unable to
investigate suspects for violations of section 32L, and violations under the
statute are likely to go unpunished. The courts decision has thus, for all
practical purposes, legalized possession of marijuana in Massachusetts.
While the SJC appropriately determined that the Commonwealths
search and seizure jurisprudence had to be altered in recognition of the
legislative change, the court simply went too far by removing the authority
of law enforcement to stop and detain a suspect based upon the odor of
marijuana. Admittedly, the odor of marijuana does notand indeed,
should notprovide law enforcement with probable cause to arrest or
search. Nevertheless, it should most certainly provide a police officer with
a reasonable suspicion to detain a suspect pending investigation for a
violation of section 32L. This unjust legal conclusion on the part of the SJC
has effectively removed any authority for the police to enforce section 32L.
That being the case, the SJC has taken a step even further than the
Committee backing section 32L in the movement to legalize marijuana.

304 See supra text accompanying notes 264-65.