By: Geoffrey E. Spofford

In 2008, by referendum, Massachusetts, adopted "an Act Establishing a sensible State marijuana policy," which resulted in the decriminalization of the possession of less than one ounce of marijuana. People found in possession of less than one ounce of marijuana were subject to civil citation, similar to minor traffic offenses, and not subject to arrest for a crime.

Recently, the Massachusetts Supreme Judicial Court announced several "joint" decisions, all dealing with interpretation of the law in different situations. The decisions will not only change the manner in which people may use or possess marijuana without fear of criminal charge, but also change the manner and methods under which the police must operate. For example, the mere presence of the odor of marijuana emanating from a car is now insufficient to subject an individual in his or her car to a search for contraband.

Social sharing of marijuana, an issue left open in earlier decisions, was squarely addressed in one of the new cases. The courts had consistently held that the Act decriminalized simple possession of marijuana, but did not decriminalize all other crimes related to Marijuana such as distribution or cultivation of marijuana. The question posed in the new case was whether passing a marijuana cigarette to another individual constituted distribution. In analyzing the criminality of distribution, the courts have looked to see if the defendant's giving drugs to others served as a "link in the chain" between supplier and consumer. The Court concluded, "Social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer ... social sharing of marijuana does not violate the distribution statute."

The Court acknowledged that the entire statutory scheme established by the Act significantly implicates police conduct in the field. "The observation by police that an individual possesses a small amount of marijuana does not justify a warrantless search." Nor does the observation of a group of several individuals using and sharing marijuana in a social setting. To allow otherwise "would undermine the clear intent of the voters to alter police conduct toward marijuana users."

On the other hand, there are still significant restrictions on using and possessing marijuana, even in small quantities. In one of the recent cases a defendant was charged and convicted of cultivation of marijuana. The defendant argued that the marijuana seized was less than one ounce and was, therefore, subject to the Act's policy of decriminalizing possession of small amounts. The Court held that the crime of cultivation had not been affected by the decriminalization of possession of a small amount of marijuana and that it remains a crime in Massachusetts to cultivate marijuana in any quantity.

With the recent passage, also by referendum, of the legalization of "medical marijuana" it remains to be seen what further alterations in long standing law enforcement practices will occur. Stay tuned.

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