Supreme Judicial Court, Feb. 13, 2012
Facts: In May 2010, police responded to a call from a woman who told them her daughter was smoking marijuana with others on her property. The defendant was among those present when police responded to the call. The police did not have a warrant. One of the officers searched the defendant and found three small sandwich bags of marijuana, totaling less than one ounce, some money, and a cell phone.
Procedural History: The defendant was charged with possession with intent to distribute marijuana under Massachusetts General Law c. 94C § 32C(a). The defendant moved to dismiss the complaint, arguing that possession with intent to distribute of less than one ounce of marijuana is no longer a crime, in light of c. 94C § 32L, which decriminalized the possession of one ounce or less of marijuana. The defendant also moved to suppress the evidence taken when he was arrested, arguing that the search violated his Fourth Amendment due process rights.
The trial judge ruled that while § 32L would punish the sale of less than an ounce of marijuana, if there were no exchange of money, there is no punishment for the distribution of marijuana.
The Commonwealth filed an interlocutory appeal.
Issue #1: Did the passage of § 32L mean that possession with intent to distribute of less than one ounce of marijuana was no longer a criminal act under § 32C(a)?
No. Section 32L did create an exemption to c. 94C § 34, which criminalizes possession of controlled substances, for the simple possession of less than one ounce of marijuana. This exception decriminalized such possession and also removed such possession from applicable penalties under § 34. The court noted, however, that the statute criminalizing the intent to distribute marijuana, § 32C(a), was not amended by § 32L. Further, the trial court erred when it ruled that, because § 32L’s specific exemptions (i.e. offenses which will remain criminal) included “selling” marijuana but did not include “distribution,” the distribution of marijuana under one ounce was also no longer criminal. The court found that such an interpretation would be akin to an implied repeal of § 32C(a) and that there was no compelling reason to conclude that such an interpretation was correct. Therefore, § 32C(a) is not limited, in cases involving less than one ounce of marijuana, to only the “sale” of marijuana.
Issue #2: Did the police have probable cause to search the defendant?
No. The Fourth Amendment requires that the police have probable cause in order to conduct such a search without a warrant. Evidenced gathered from searches which fail to satisfy this requirement is inadmissible. While the police did not have to witness the defendant engaged in the act of selling marijuana to find probable cause of intent to distribute, they did have to witness something to indicate an intent to distribute. Factually, the arresting officer did not testify to facts that supported a probable cause to search the defendant based on intent to distribute, as the officers were only informed of the defendant’s use of marijuana, and not activity suggesting intent to distribute. Since the search was unlawful, the evidence obtained (the marijuana, money, and cell phone) must be suppressed.
Conclusion: The possession with intent to distribute of less than one ounce of marijuana remains a criminal offense, despite the decriminalization of simple possession of less than one ounce of marijuana. In this case, however, evidence taken upon the defendant’s arrest must be suppressed because the police lacked probable cause to search the defendant. (AE)
