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August 11, 2014

Smell of Unburnt Marijuana Does Not Provide Probable Cause Justifying Warrantless Search of Vehicle

After Massachusetts made it legal to possess one ounce or less of marijuana, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Cruz that the odor of burnt marijuana alone could not provide reasonable suspicion of criminal activity to justify a warrantless search. In a recent case, the SJC expanded that decision and held that the smell of unburnt marijuana does not provide probable cause for the police to search a vehicle.

In Commonwealth v. Overmyer, the defendant was involved in a motor vehicle crash. When the police arrived at the scene, they encountered a "very strong odor" of unburnt marijuana emanating from the defendant's vehicle. After questioning the defendant about marijuana being present in the vehicle, the defendant acknowledged that a bag of marijuana was in the glove compartment, and gave the keys to the police. After the police retrieved a "fat bag" of marijuana, the officers continued to smell an odor or marijuana in the vehicle, and questioned the defendant about the possibility of the vehicle obtaining a larger amount of marijuana. Although the defendant denied this, the police proceeded with a search of the car, and found a backpack in the back seat filled with marijuana.

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