HAMPDEN DISTRICT ATTORNEY MARK G. MASTROIANNI MULLS MARIJUANA DECISION BY SJC

SPRINGFIELD Hampden District Attorney Mark G. Mastroianni
acknowledges that some drug investigations will be impacted by a
Massachusetts Supreme Judicial Court ruling preventing police from
relying only the odor of marijuana to search vehicles and their occupants.

But, he added, the April 19 decision by the SJC doesn't necessarily
move the commonwealth closer to legalizing marijuana, possession of
which was partially decriminalized more than two years ago.

"I don't know if this will be a slippery slope toward legalization,"
Mastroianni said in an interview with The Republican, referring to
the SJC decision and a November 2008 ballot measure that
decriminalized possession of small amounts of marijuana.

While some view the SJC ruling as evidence of the erosion of the
state's pot regulations, Mastroianni pointed out that the drug is
still illegal. However, police and prosecutors must adapt to the SJC
decision, and the district attorney said his office will work with
county police departments "to help them digest" the ruling.

"It makes it more difficult for police officers; it changes the
established protocol of what [they] can do when [they] stop a car.
It's going to cause some changes," he said.

The court's decision is an extension of the binding ballot measure
that changed possession of an ounce or less of pot from a misdemeanor
crime to a civil offense punishable by a $100 fine.

Partial decriminalization "is what the voters voted for, so this is
what the voters are getting," Mastroianni said.

The SJC specifically determined that the odor of burnt marijuana is
no longer sufficient reason for police to conduct a warrantless
search of a vehicle. The decision upheld a lower court opinion that
Boston police had no evidence when they removed a passenger from a
car because they detected the odor of marijuana. A subsequent search
of the passenger revealed he was carrying other drugs.

Police erred by "ferreting out decriminalized conduct with the same
fervor associated with the pursuit of serious criminal conduct,"
Chief Justice Roderick L. Ireland wrote in the SJC's majority opinion.

"Without at least some other additional fact to bolster a reasonable
suspicion of criminal activity, the odor of burnt marijuana alone
cannot reasonably provide suspicion of criminal activity to justify
an exit order," Ireland stated.

Recently retired Justice Judith A. Cowin was the court's lone
dissenting voice, noting that case law has long supported the right
of police to conduct warrantless vehicle searches if the odor of
marijuana is detected. The smell "may serve as a basis for a
reasonable suspicion that activities involving marijuana that are
indeed criminal are underway," Cowin stated.
AP photoSJC Chief Justice Roderick L. Ireland authored the majority
decision barring police from using the smell of marijuana alone as
reason to search vehicles.

Numerous drug investigations, including cases in Springfield, have
emanated from police smelling marijuana coming from a vehicle. In
many instances investigating officers found other drugs or weapons,
resulting in additional criminal charges.

Now, however, some of those cases could be in jeopardy, according to officials.

"The answer is yes, some pending cases could be affected," Mastroianni said.

"It's not a major blow, but certainly we'd rather not have to deal
with this ruling," he said. "We would have preferred the dissenting
opinion to prevail."

Mastroianni said he opposes any move that prevents police officers
from doing their jobs, but his office is prepared to help local
police departments interpret the SJC decision.

"We're going to move forward and work with this," he said.

The SJC's majority decision was rooted in the "principle of
proportionality," which requires the degree of police intrusion to be
"proportional to the degree of suspicion that prompted the intrusion."

The SJC made it clear that the court was mindful of the will of Bay
State residents, more than 65 percent of whom voted for partial
decriminalization in 2008. As a result, individuals caught with less
than an ounce of pot now must forfeit the drug and pay a $100 fine,
or about the price of a speeding ticket.

Northwestern District Attorney David E. Sullivan declined multiple
requests for comment on the SJC decision.

The high-court ruling pleased public defender Andrew M. Klyman, the
attorney in charge of the Committee for Public Counsel Services in
Hampden County.

"As a criminal defense attorney, I think it's a good move. I
definitely think this is a logical step," Klyman said in an interview
with The Republican.