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

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.norml_remember_prohibition_

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.


23 thoughts

  1. There’s my donation money at work! Thanks NORML.
    However, to say that ” no such conflict exists between federal and state authority,” might be a stretch; If anyone has probable cause to search for drugs it’s the American taxpayers who deserve to search the DEA and the DOJ for drugs, drug laundering money, and asset forfeitures.

  2. I’m no expert on the law, but I do know right from wrong! In my opinion, State Police must follow State laws. It seem so simple to me. However, I know there are prohibitionist jerks out there who look for any way, any excuse, to bust or harass a cannabis user…

    I wish to God that our Federal Govt would take a time out to review the damage they have caused by their prohibition and just legalize it already at the Federal level. However, as I mentioned earlier, I know there are prohibitionist jerks out there… and many of them are in our Congress. That probably explains why they are so incredibly unpopular at this time in our nation’s history.

  3. This is the very thing that going to cause either legislation or prohibition. The law can’t have gray areas. It has to be black or white. Gray areas are open for abuse and corruption. However keep in mind that in places where it is still illegal. The law dogs are still going to be just as overzealous as ever. Their little brainwashed mind’s still think they are saving the country from reefer madness. I am glad that we have NORML to jump in and clarify the decriminalization policies. Without that we might as well go back to square one. Decriminalization is just a word of convenience.


  4. “The state appealed.” What this says to me is that the police will hide behind the law when it serve them and then when it doesn’t, they take it upon themselves to try and undo what the people have worked so hard to fix in the first place. We don’t pay these people to waste tax money objecting to what they don’t like. This isn’t them protecting and serving, this is them ruling and oppressing. Live and let live might be a good position for everybody to consider. All this fighting over a forgone conclusion isn’t smart and only adds to the cost the war on drugs has caused.

  5. Let’s sniff test some of these politicians and see how quickly these laws change. Better yet let someone they love get sick and possibly benefit from mmj and see how quickly they change their mind.

  6. @Miles: The ones at the top are guaranteed to be not just “jerks”. They are bought-and-paid-for tools of prohibitionist industries who stand to lose a fortune if marijuana is legalized, and in some cases may even face the end of their industry all together. And they are doing everything in their power trying to preserve that federal law and trying to make it trump state law (which is funny, since these are usually the very people crowing about “states rights” and how they want “small government”–I guess that only counts when you’re deregulating big business and rolling back and eliminating workers’ rights, but the moment we’re talking about, say, marijuana legalization or women’s health or gay people they want the biggest federal government powers of all and states’ rights don’t even come into play. Freaking hypocrites, why don’t people see through this power play, it’s so obvious to anyone with half a brain and a modicum of honesty!) They are also working hard to use their purchased tools (ie: our politicians) to ensure that no more legalization initiatives ever reach the voting public again, because at this point they will pass.

    Then, of course, there are the low-level prohibitionists. Yes, I will agree that most of them (at least, the ones that don’t work for private prisons or drug testing companies, etc) are simply jerks. Jerks and cowards. Grossly misinformed jerks and cowards who are terrified of the MJ boogeymen that will be unleashed if their precious security theater is disbanded.

  7. Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Here is where I have a big problem. There is nothing in the US Constitution that grants the feds the power and authority to continue cannabis prohibition. The Constitution does not grant the feds the power to do vast amounts of damage to society to ban a substance that does next to no damage to society.

    Protect the general welfare? HA! Cannabis prohibition ruins the general welfare of this nation. This is especially true when you consider the ban on cultivating hemp.

  8. I surely hope they can’t push this damn trumps-state-law stuff anymore. There once was ZERO (0) support for cannabis reform in the Senate. I wonder if that’s still the case.

  9. That is one of the most absurd arguments I’ve heard. These are State Police, not FBI nor DEA agents. They can’t even arrest people on Federal Charges; this is just stupid and corrupt.

  10. I love how you guys at NORML lawyer them right back when they pull stupid crap like this. This is what I call fighting fire with fire nice work to all of you. You guys don’t know how much you are appreciated.

  11. I thank you for going the extra mile to help our states turn this around, I am hoping that I see the full legalization of marijuana in my lifetime so please continue I am 62 and waiting.

  12. Mr. Youngblood I would like to thank you for bringing me to this point of sharing. After reading Your response, “62 and waiting” it dawns on me just how important it is to put a face on this issue. We aren’t just faceless numbers of the misguided opposition, or a hidden minority without a voice. We are humans that are suffering in large populations behind the threat of going to jail for something as simple as seeking a moment of calm in our existence. I am 56 and NOT waiting. I’m not waiting for the day of calm to find me and lift this unbearable weight that is making my existence nearly intolerable. I’m not a criminal. I’m a father and a husband who has worked hard and contributed to society. I’ve made the responsible effort to do good in my life. I’ve done all these things at the expense of my body being nearly drilled straight into the ground. Through liver disease, chemo-therapy, broken bones, and several back injuries I’ve stood up and took care of my family. I’ve now had to retire from the work I loved for many years. And when a member of the police says something like,”I think I smell marijuana” or any other deluded statement that invades my privacy, it insults me to my core. Its no ones business what I put into my body. The decisions are mine and mine alone. In early 2014 I’m moving to where Medical Cannabis is legal and remove myself and family from the senseless and needless threat of going to jail for my medical needs. Once there I can safely advocate for Norml and their compassionate efforts for these human rights. These are human rights and they are being violated. Waiting for these human right to change has caused great suffering and not just to me, but to my family also. So thanks again to you Mr. Youngblood and thanks also to Norml.

  13. What’s with the limitations? There’s no limit on the amount of alcohol Or Cigarette’s you can own.

    Bake on FREE WORLD!

  14. The most dangerous thing to a prohibitionist is the idea somebody might enjoy themselves and they can’t punish them for it. Oh the horrors.

  15. @ Bob C., this doesn’t just apply to marijuana users. Their hatred is applied evenly to everyone. Even if you’re not being attacked by these people, they require everyone to subsidize their insanity, making the whole country their victims.

    Spending money on damaging society for your profit is not legal, and I still don’t understand why judges have not voided these broken laws. They don’t work for the people? What is the point of giving them autonomy, if they refuse to use it?

  16. This problem has been the subject of countless articles, almost none in support of these broken policies. The public support has been borderline for decades. All the while every signle one of our educated government officials and Law Enforcement already know marijuana should be legal.

    This is scam and the whole reason we have a judicial branch for our government is to stop exactly these kinds of collusions agaisnt the people.

  17. There are even countless song about this stupidity. This one from 2001. It could be called the “Drug War Facts For Dummies”. And it should be required listening for all members of the judicial branch. Or is fascism really the present and future for US?

  18. 2Dave Evans

    Peaceful all forms of self ownership should be legal, everything else follows that.

    If somebody wants to smoke carrots, it’s not the business of leviathan. I would recommend a peeled carrot for a daytime smoke and maybe a big honking one for a night cap. Peace.

  19. The war on drugs is the most expensive war in U.S history that hasn’t accomplished nuthing but a ridiculous amount of tax dollars out of the hard workin U.S public please wake up and stand for whats right the goverment cant debate the medical importance of this so-called ‘drug’ the real problem is the the legal herion being givin away on every street corner of my city PLEASE PEOPLE WAKE UP!!!!

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