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Odor of Marijuana and search of commercial building to be consider by Massachusetts SJC

The Massachusetts Supreme Judicial Court heard oral argument on April 2 in the Commonwealth v. Long. This case raises the issues of the detection of marijuana and probable cause to search a commercial building.  

In this case, two officers were conducting patrol when they noticed two vehicles parked behind a commercial building. Another officer arrived on scene, and all three secured a perimeter around the building. Upon doing so, the officers detected an overwhelming odor of unburnt marijuana. The officers also noticed that the ventilation inside the building was covered with plywood. The building was being leased to Defendant Long, who had a criminal drug history. The owner of one of the vehicles also had a prior drug history. Using these facts as support for probable cause, an application for a search warrant was made and a search warrant was issued. Defendant Long was charged with trafficking more than fifty but less than one hundred pounds of marijuana. Long filed a Motion to Suppress and the case is currently before the SJC.

The Justices will have to determine whether the untrained nose can reliably detect, based on odor, the presence of a criminal amount of marijuana in a building as opposed to in a vehicle. The Justices also have to determine whether the presence of a vehicle registered to an owner who has a marijuana conviction is sufficient to establish probable cause. The answer to these questions will provide useful guidance to law enforcement officers.

 

Can the untrained human nose detect a criminal amount of marijuana?

 

The defendant argued that the smell of unburnt marijuana does not establish probable cause, relying on similar cases previously decided by the SJC. In Commonwealth v. Overmyer, the SJC held that characterizations of odors as strong are not a reliable means in detecting the presence of a criminal amount of marijuana (more than an ounce). Two years later in Commonwealth v. Locke, the SJC ruled that detecting a strong odor of marijuana does not provide reasonable suspicion or probable cause to believe that a criminal amount of marijuana is present.

 

In its brief, the Commonwealth cited to a study which found that adults had the ability to detect marijuana at point blank range, and had the ability to detect odor coming from a building’s ventilation system that also emanated diesel fumes. Using this study as support, the Commonwealth argues that the untrained nose can detect the odor of marijuana emanating from a building as opposed to a vehicle. But can that same untrained nose detect the weight of marijuana? The Commonwealth also argued that the Overmyer and Locke cases involved the odor of unburnt marijuana emanating from vehicles, not buildings. Interestingly, the Commonwealth believes that the odor of marijuana coming from a building is substantially different than the odor coming from a vehicle, because vehicles are significantly smaller than buildings and are not constructed out of concrete. The defendant agrees that there are differences, but the Overmyer case still controls.

Can the presence of a vehicle registered to someone who has a criminal drug history establish probable cause?

The defendant’s prior marijuana charges coupled with the fact that his vehicle was on the premises of the building was used as support for probable cause. The defendant argued that while a person’s arrest record can be considered in a reasonable suspicion/probable cause evaluation, more evidence is needed. The Commonwealth relied on numerous case law to support their argument that the prior criminal history of a suspect is an important factor in the probable cause analysis. However, the defendant argued that prior criminal history used as support for probable cause cannot be too remote in time.

Considering current precedent on these issues, it will be interesting to see how the SJC makes its ruling. You can listen to the oral arguments on the Suffolk University Law School website.

If you have any questions about drug cases, you can contact Attorney DelSignore at (781) 686-5924.  You can contact Attorney DelSignore on Twitter to discuss current issues in criminal defense.

 

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