Facts: The defendant was charged with possession of a class D controlled substance (marijuana); possession of a class D controlled substance (marijuana) with intent to distribute; and committing a controlled substance violation in a school zone. These charges stem from an incident where Natick police officers and members of the Metropolitan SWAT Team executed a search warrant at a residence in Natick where, upon the search warrant's execution, officers saw Dee look inside the residence. When asked what he was looking for, Dee responded that he was looking for Vinny who lived on the second floor of the residence. Detective Ingham then conducted a pat frisk of the defendant at which time he detected a strong odor of unburnt marijuana coming from the defendant's backpack. The defendant was placed in handcuffs and the detective opened his backpack, finding a cellular phone and charger, bottle of eyedrops, rolling papers, $530 in cash, and fourteen individually wrapped plastic baggies of marijuana. The total weight of the marijuana was 12.99 grams, which is less than one ounce.
Procedural History: The defendant filed a motion to dismiss the charges, arguing that because the possession of one ounce or less of marijuana is only a civil infraction, possession of one ounce or less with the intent to distribute is no longer a criminal offense. The District Court judge stayed further proceedings and reported the following question: “Did the passage of G.L. c. 94C, s32L, decriminalizing possession with intent to distribute marijuana when the amount of marijuana seized is under one ounce?” The Supreme Judicial Court transferred this case from the Appeals Court on its own motion to decide this question.
Issue: Did the passage of G.L. c. 94C, s32L, decriminalizing possession with intent to distribute marijuana when the amount of marijuana seized is under one ounce?
No. The court concluded that in accordance with Commonwealth v. Keefner, the passage of G.L. c. 94C, s32L did not repeal the offense of possession of marijuana with intent to distribute, even if the amount in possession is one ounce or less. The sale of any amount of marijuana remains a criminal offense. Furthermore, the court added that prosecution under G.L. c. 94C, s32C is not limited solely to situations where the distribution involves sale.
Judgment: The case was remanded to the District Court. (MW)
