LIBERTY AND THE ODOR OF MARIJUANA

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.