MARIJUANA LAW MEANS WHIFF IS NOT ENOUGH

North of Boston -- Persons who value the advantages of liberty and
the principles of the constitution of Massachusetts will remember
April 19 of 2011, the 236th anniversary of the battles of Lexington
and Concord, as a little more special. It was the day that the
Supreme Judicial Court released an opinion that the smell of burnt
marijuana no longer empowers police to detain persons and search them
or their possessions.

The case of Commonwealth v. Cruz arose when police spotted a car
illegally parked. Two people were in the car, Mr. Cruz in the
passenger seat. According to the police officers involved, when they
approached the car, they smelled the faint odor of burnt marijuana.
They ordered Cruz out and, in response to an inquiry by police, he
gave up a piece of crack cocaine. Police found no marijuana in the
car, on the person in the driver's seat or following a full search of Mr. Cruz.

The court, referring to the 2008 ballot initiative to decriminalize
possession of small amounts of marijuana, reasoned that, "voters read
the arguments 'for' and 'against,' as well as the new law itself.
Because we have the benefit of the written explanation in support of
the initiative, the people's intent in answering Question 2 in the
affirmative was clear: possession of one ounce or less of marijuana
should not be considered a serious infraction worthy of criminal sanction."

So, the court continued, responding to a whiff of burnt marijuana
with the same fervent police action "associated with the pursuit of
serious criminal conduct is neither desired by the public nor in
accord with the plain language of the statute."

At issue is the application of the timeless principles voiced in 1761
by James Otis, Jr. on behalf of Salem merchants against writs of
assistance, which allowed searches of anyone and all their
possessions for smuggled goods. John Adams, present when Otis made
his case, incorporated these principles in his draft of a Declaration
of Rights and Constitution adopted by the voters of Massachusetts in 1780.

These principles include the right of the people to alter their
government, in this case by way of the initiative, and of the right
retained upon entering civil society to be free from unreasonable
searches and seizures not founded upon specific articulable facts
establishing probable cause of criminal activity.

In 1817, President Adams reminisced that Otis was "a flame of fire"
as he addressed the highest court of the colony, and his arguments
"prophetic." Otis' argument so impressed him that he remembered that,
"Every man of a crowded audience appeared to me to go away, as I did,
ready to take arms against writs of assistance." He called it "the
first scene of the first act of opposition to the arbitrary claims of
Great Britain."

So now, act one scene one of the opposition to arbitrary power and
act one scene one of the War of Independence are linked by this
decision that protects citizens' personal autonomy. Those who did not
vote for Question 2 are no less safe, as the court makes clear that
in appropriate circumstances -- absent in this case -- police retain
the authority to investigate operator impairment and arrest for
operating under the influence or to conduct an investigation of
criminal activity.

Did the court deliberately release the decision on Patriots Day? I
believe they did to remind us all of the lofty principles of Otis and
the patriots. Principles neglected too often by too many when forming
their opinions on court decisions that let a person disobedient of
the laws of God or the laws of man go unpunished. This is a small
price to pay in the words of Mr. Adams in Article 18 of the
Declaration of Rights, "to preserve the advantages of liberty, and to
maintain a free government."