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


smell marijuanaBy Allen St. Pierre, NORML Executive Director

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.

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.

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Johnny Green


  1. I am neither racist nor religious (you should have intuited that by my username — Witchwindy) I fully support anyone loving/cohabiting with/marrying whomever they wish — gay, straight, bi, polyamorous, and including interracial combinations — also getting marriage out of the control of government (ending government fees and the tax benefits/penalties related to marriage). Marriage should be strictly a contract between the marrying parties, and the only time government ever should get involved is if there is a breach of contract which the partners want to take to government court (though I would prefer they would want to take it to private sector arbitration, instead).

    I also support getting rid of laws that prohibit vices like prostitution, gambling, use of certain ingestible substances, drug cultivation/ manufacture, sale/trade, or transport, or of any other kind of consensual or solo activity, or prohibit us from buying and using useful products (incandescent light bulbs, certain kinds of toilets, etc.). I am a libertarian (neither liberal nor conservative, neither democrat nor republican), I am pro-choice on EVERYTHING, as long as no one’s unalienable rights are being violated. I am totally, adamantly, opposed to ANY kind of authoritarianism regardless from which party it originates and regardless of whatever justification of authoritarian actions or laws the authoritarian presents. Oh, and I am also pro-peace and anti-war/conflict/police action, regardless which party’s administration starts it and regardless if said “war” is foreign or domestic, the ONLY time war is acceptable is when it is in self-defense — as when another nation’s military actually attacks us on our own lands.

    So … obviously, either your perception is skewed (about what causes my anger at Obama, his whole administration and at ALL the stupid members of congress, too, regardless of party affiliation and with NO current exceptions, not even Rand Paul) I consider this reason a possibility because you appear to be biased against anyone who disagrees with socialist/liberal/progressive policies regardless their reasons for disagreement. I laid my reasons out clearly for opposing this president, I also mentioned how I hated those same things when they were practiced by previous (white) politicians of BOTH parties (going back to long before I was born — I’m a WWII baby). One other possibility is you didn’t actually read my comment all the way through; or … maybe you are one of those who is incapable of thinking beyond the left/right illusion. One last possibility for the skewed perception of my comment could be, perhaps, that you just need to learn to read other people’s comments much more carefully before you go off on a rant against them.

  2. Andrew Bastien on

    Perfectly said! Citizens of the United States need to open their eyes to the monster that is controlling us, that they voted for!

  3. The “Positive conflict” issue is a very real one and one that the DEA does not want to deal with at any appealate level for fear of getting a bad result. Hoder has said exactly that. For a positive conflict to exhist it must be impossible to obey one set of laws without offending the other enity’s. In my opinion, this has kept the Feds away from directly attacking Washington and Colorado law. In my jurisdiction the odor of pot alone will not give rise to probable cause for a search since possession of up to an ounce is legal under state law.

  4. Okay, I started typing out a clear and concise argument to your post, but I found myself unable to begin — so I’ll just start at the end:

    Your anger and hatred of President Obama seems to have a basis in race or religion, and I don’t care which, I just want you to take that attitude somewhere else. The internet is a public forum, that’s true, and here on The Weed Blog, we welcome all kinds — except for racists and homophobes (I’m guessing you have a problem with g a y people too).

    Here’s some advice, take it or leave it: Go visit the Bloomberg website, lots of like-minded people there who would LOVE to meet you, I’m sure. Leave us peace-minded people in peace.

  5. “It wasn’t meant to be. Think about it. If he did anything to legalize, there would be a ton of racists wanting to blame him on account of him being a black man.”

    That’s ridiculous, he’s NOT a “black man”, he’s a half white, part black, part Semite man, and the vast majority of people who berate him are angry with his policies, not the color of his skin. Most of us were just as angry with those same policies when it was Bush carrying them out (Where are all the democrats who opposed war during the Bush years? They all seem to have faded into the woodwork, you don’t hear from them, now, do you?)

    The ONLY reason he won’t disband the ONDCP, DEA and CSA is because he does not truly believe in the kind of freedom Americans were intended by the Founders to have, he believes in control, especially when said control is in HIS hands. We may not see the full extent of the damage he has done for a decade, but that damage is just an extension of what was started long, long ago and carried through, incrementally, with each succeeding administration. But there is a fly in their ointment, now, one they never anticipated — the internet.

  6. It’s odd, when it comes to legalization, I am all for state’s rights, but when we’re talking about Medicaid, I am against state’s rights. I have become as ideologically confused as our politicians. :)

  7. It wasn’t meant to be. Think about it. If he did anything to legalize, there would be a ton of racists wanting to blame him on account of him being a black man. They used the race card to create prohibition, didn’t they? It’s evident that some people just hate having a black president, and will blame everything they stand against, on him, just for that reason. He won’t be the first black president AND the one to legalize, so people can blame it on race.

  8. They are very clever, indeed, and even though I HOPE this will have positive outcome, Holder’s “memo” isn’t law, and therefore the defense of this action will be iffy at best. As it stands, the state law “positively conflicts” with federal law. I’m not sure this clever memo from the Justice Department holds enough weight. The present administration wants to wave this memo around to show their “support” for drug policy changes, but it isn’t enough to fool me. They don’t want to take it far enough to appear to be soft on drugs, but they also don’t want to loose votes from the people they mislead with regard to ending this War.

    In my opinion, Obama may be more inclined to want to do something because he is black and has a better perspective on the drug war than some rich, white, out of touch dude, but his being the first black president will also be the reason he doesn’t go through with it.

    I hope the judge hearing this case is really, really into state’s rights.

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