POT RULE WORRIES OFFICIALS

Odor Not Enough to Suspect Crime

Law enforcement officials are concerned that marijuana busts, and
their ability to arrest people for driving under the influence of
drugs, will go up in smoke after the state's highest court ruled this
week that the odor of burnt marijuana does not give police enough
suspicion to order someone from a car.

Defense lawyers, however, argue the state Supreme Judicial Court got
it right, considering the passage of a 2008 state ballot question
decriminalizing possession of one ounce or less of marijuana.

To order someone out of a car, police need additional cause to
suspect criminal activity, the court ruled.

"If a police officer smells the distinctive odor of marijuana, if
their training and experience tells them something else is going on,
they should be able to do their jobs," Worcester District Attorney
Joseph D. Early Jr. said.

The appeals bureau within Mr. Early's office is being asked what
advice should be given to local police departments inquiring about
the decision. Officials are still reviewing the matter.

The ruling resulted from a case involving Benjamin Cruz. In June
2009, Mr. Cruz was a passenger in a car stopped in Boston. Police
smelled burnt marijuana and ordered him out of the car.

When asked by police if he had anything on him, Mr. Cruz allegedly
said he had some crack cocaine. It was seized and he was arrested on
drug charges. A lower court suppressed Mr. Cruz's statements to
police and the Supreme Judicial Court upheld the decision.

In the 5-1 ruling, Chief Justice Roderick Ireland wrote, "the odor of
burnt marijuana alone cannot reasonably provide suspicion of criminal
activity to justify an exit order."

Before her retirement, Justice Judith Cowin wrote her dissenting
opinion, stating past cases in the state show that warrantless
searches of cars can be conducted if officers smell marijuana.

She argued the decriminalization law does not change the criminal
status of other activities involving pot.

"In this case, the officers' detection of the odor of marijuana
provided basis for a reasonable suspicion that the individuals in the
vehicle might be involved in the commission of a crime," she wrote.

The decision leaves police in limbo, law enforcement officials said yesterday.

"Whatever action we take, we are exposed to potential sanctions and
liability," Leicester Police Chief James Hurley said. "In my opinion,
it isn't fair to law enforcement to be in that position."

Leicester police are finding more people smoking pot on the public
common or driving with the smell of burnt marijuana in the car, the
chief said. The ruling ties police officers' hands if all they smell
is the burning plant, he said.

Under the same circumstances with alcohol, an officer would not let
someone drive off if they smelled booze on the person's breath, Chief
Hurley said.

"Every single car driving around could be at risk if a driver is
under the influence of marijuana," the chief said.

Mr. Early has sat with people who lost loved ones to drivers
operating under the influence of drugs. Those conversations resonate
in his head, he said.

Lawyer Steven Epstein, spokesman for the Massachusetts Cannabis
Reform Coalition, said scientific research shows most people driving
under the influence of marijuana drive slower and recognize they are impaired.

It is unlike alcohol, he said, which tends to make a driver believe
they can drive.

The real issue is law enforcement's need to order people around, Mr.
Epstein argued.

He issued a press release about the ruling with a cheeky reference to
"4-20" being a special day in the state for cannabis users. The
number 420 is a common reference to smoking pot.

The decision doesn't mean police can't stop people from driving, Mr.
Epstein said. Properly trained officers can detect if someone is
cruising around under the influence of marijuana, but many in the
state do not have that specific training, he said.

Chief Hurley, who has a stack of unpaid citations for marijuana use
at his station, said training officers to be drug recognition
officers takes time and sometimes money. Many departments are short
on manpower and are cash-strapped.

Departments do have a list of trained officers, but many come from
different towns and police would have to justify detaining a person
for an extended time-frame.

"We need to catch up on this issue," Chief Hurley said.

The issues discussed in the ruling were brought up when the ballot
question was being considered, according to A. Wayne Sampson,
executive director of the Massachusetts Chiefs of Police Association.
The retired police chief said his organization understands how the
court came to its conclusion.

"Our concern at this point is that the ruling truly is one of those
unintended consequences that the public was not aware of," he said.
"We're sure they never anticipated the consequences of the ballot
question would inhibit the investigation into drugs."

Chief Hurley also contends voters probably cast a ballot not knowing
exactly what they were voting for. He believes many thought the new
law involved people smoking pot in their homes or for medical reasons.

The public wants police to stop impaired drivers and having people
smoke marijuana and drive clearly wasn't the intent of the law,
police officials said.

The most prevalent drug in the state is pot, Mr. Sampson said.
Marijuana trafficking is big business and before the ruling, police
could use smelling pot as probable cause to search.

"There could be a major impact on large-scale trafficking operations
that had been successfully prosecuted on that odor alone," he said.

Area police departments are looking for advice on how to handle
various situations now. Mr. Sampson said his organization will have
to speak to district attorneys and work with them for guidance.

Fitchburg defense lawyer Edward P. Ryan Jr. believes the Supreme
Judicial Court's decision is spot on. Simply put, the new law
decriminalizing possession of one ounce or less of marijuana does not
support probable cause for a search, he said.

The former Massachusetts Bar Association president knows the ruling
will result in appeals in some pending cases.

"This issue has been well known by members of the defense bar. There
are a number of cases that have raised this issue in various trial
courts," Mr. Ryan said. "There might be many in the pipeline in the
appeals court or others waiting for this decision. There will be an
immediate impact in some cases."