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US MA: OPED: Liberty and the Odor of Marijuana

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URL: http://www.mapinc.org/drugnews/v11/n292/a01.html

Newshawk: http://www.masscann.org/

Votes: 0

Pubdate: Sun, 8 May 2011

Source: Metrowest Daily News (MA)

Copyright: 2011 MetroWest Daily News

Contact:male2('mdnletters','cnc.com'); mdnletters@cnc.com

Website: http://www.metrowestdailynews.com/

Details: http://www.mapinc.org/media/619

Authors: Michael D. Cutler

Note: Michael D. Cutler is an attorney practicing in Northampton.

Referenced: COMMONWEALTH vs. BENJAMIN CRUZ http://mapinc.org/url/L9vRYWPr

Bookmark: http://www.mapinc.org/states/MA (Massachusetts)




Earlier this month on the 236th anniversary of battles of Lexington and Concord, our state supreme court released its decision in Commonwealth v. Cruz, honoring the principles of 1775. The Cruz ruling limits police power to detain and search a car passenger based only on "... the 'faint odor' of burnt marijuana." Recent editorials criticizing Cruz confuse the court's uncomplicated reasoning, disrespect the state and federal Constitutions' protection of individual liberty from unjustifiable policing, and contradict the popular will.


Complaints about Cruz are unfounded from several perspectives. Contrary to claims that the court approved driving under the influence of marijuana, Cruz was a passenger ordered from a parked car where the police made no attempt to check the driver's impairment, and where the trial judge ruled that the police had no reason to believe that the driver had been "operating under the influence ... ." Critics ignored the Cruz statement that police retain the power to impound and search a car and its passengers where there is evidence of impaired operation or a risk to the officer's safety, a risk the prosecution did not argue was present on Cruz's facts.


Critics also failed to observe that Cruz follows 200 years of state caselaw, limiting justifiable police interference with personal freedom to instances where there is reason to believe that a crime has been committed, rather than a civil infraction such as simple marijuana possession. From the faint smell of burnt marijuana, the court refused to find reason to believe criminal possession of more than an ounce of pot, citing the 2008 voter initiative's overwhelming approval which changed state law to treat marijuana consumers "differently from perpetrators of drug crimes."


Critics mistakenly concluded that decriminalization threatens public safety because the Cruz decision held that the faint odor of pot inside a parked car did not justify the detention of a passenger. Cruz simply distinguishes the passenger from the driver, instructing police that their observation of factors not present in that case would have provided a lawful basis for searching the car and its occupants, such as seeing the driver use marijuana, drug sale paraphernalia in plain view, or threatening movements by car occupants.


Cruz honors the anniversary of our ancestors' risky decision to stand up to the British Empire, to protect our rights to be secure from unreasonable searches and seizures, and to stop government prosecution of otherwise guilty citizens detained in violation of these rights. Cruz affirms principles first articulated by James Otis, when in 1761 on behalf of Salem merchants he argued against general search warrants known as writs of assistance. In 1780, John Adams restated Otis' reasoning in Article 14 of the Massachusetts Constitution. In 1817, President Adams reflected upon Otis' presentation, writing "Then and there the child Independence was born .. in 1776, he grew up to manhood, and declared himself free."


Cruz observes that "the the intent of the 2008 initiative ... was, in part, to free up the police for more serious criminal pursuits than the civil infraction of low-quantity marijuana possession. ... It is unreasonable for the police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality," other than a civil infraction as the 2008 law defines adult possession of a small amount of pot. Whether we smoke pot or not, Bay Staters should feel freer and safer as a result of the Cruz decision. Cruz honors a proud state tradition of not yielding impulsively to police. Critics owe the court an apology.

MAP posted-by: Richard Lake



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