Blog of Rights

Massachusetts High Court Limits Police Searches in Small Marijuana Cases

By Scott Michelman, Criminal Law Reform Project at 6:01pm

Reason and justice prevailed this week in Massachusetts, where the Commonwealth’s highest court ruled by a 5-1 margin in Commonwealth v. Cruz that police can no longer search or seize someone they suspect of possessing a small amount of marijuana. The basis for this ACLU victory was the Massachusetts ballot measure known as Question 2, which made possession of an ounce or less of marijuana a civil infraction instead of a crime. Massachusetts voters overwhelmingly approved Question 2 with 65 percent of the vote in November 2008.

The ruling has several implications for civil rights and civil liberties, all of them positive.

First, and most obviously, it’s an important step forward for marijuana decriminalization. The justices took seriously the notion that when Massachusetts voters said they didn’t want police harassing marijuana users or using limited law enforcement resources to combat minor drug use, they meant it. In the words of the court:

By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes. . .The statute does away with traditional criminal consequences, including the long-term and embarrassing effect that a criminal record has on employment or applying for school loans, demonstrating the intent of the voters to change the societal impact of possessing one ounce or less of marijuana.

The court understood that Question 2 wasn’t just about lowering the penalty for personal-use possession to $100; it was about changing the Commonwealth’s whole attitude about marijuana. Criminalizing marijuana makes criminals out of ordinary people and wastes police resources to do so. The people of Massachusetts have had enough of this. Even if police haven’t gotten the message yet, the court did.

 

Second, the decision continues an admirable trend in Massachusetts of serious judicial attention to the problem of unwarranted police discretion and the resulting racial disparities in the policing of minor offenses.

Take this case, which begins with Benjamin Cruz sitting in the passenger seat of a car parked on his own street in a working class neighborhood of Boston. Two officers approach the car, solely because it’s parked in front of a fire hydrant. They smell burnt marijuana, the possession of which — remember — in a personal-use quantity is now nothing more than a civil infraction akin to a traffic offense.

Instead of issuing a parking or even a marijuana citation and going on their way, the officers call for backup, and with six officers surrounding the car, they pull the two men out, find a few grams of drugs, and arrest them. It took almost two years and two court decisions before Cruz could put this behind him. And for what? For six officers to investigate two guys in a parked car for two civil infractions?

I have to wonder if the scenario would have played out the same way with two white students in a car in Harvard Square. This is the problem with police discretion regarding minor offenses, particularly (but not exclusively) minor drug offenses: police use minor offenses like the personal possession of marijuana to poke into the pockets, cars and homes of people of color, the usual suspects of street policing. This trend is well-documented. And this is why it’s so important that the high court put its foot down and insisted that officers have objective evidence of a real crime — and not merely an infraction — before they search or seize.

Finally, the decision is an important limitation on the powers of the police generally. The court took a strong stand for the principle of proportionality in law enforcement, which means the police invasion of privacy must be proportional to the reason for the intrusion. Sounds simple, but it’s a connection that has been steadily eroded in too many courts across the country throughout the past decades, as the war on drugs has been used an excuse to ignore constitutional rights.

Fortunately, the value of privacy is still alive in Massachusetts. In holding that it “cannot condone such an intrusive measure as a warrantless search,” the court indicated its understanding of the value of individual privacy and the intrusiveness of law enforcement searches and seizures.

Further, the court instructed officers throughout Massachusetts that they should not devote their energy toward investigating conduct that the voters have removed from the realm of the criminal — in other words, officers should not infringe on privacy without a good reason. This basic but often overlooked principle of individual liberty is long due for a renaissance; it’s heartening to see that some judges still believe in it.

At the end of the day, the court recognized that "[f]erreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language” of Question 2.

The people of Massachusetts can celebrate this decision as a vindication of their vision in passing Question 2. And the people of every state can view this decision as a blueprint in how to tell the government that we’re tired of the police decimating communities of color by overenforcing drug laws, wasting resources on nonviolent offenses and turning ordinary people into criminals. Our country needs more brave reform measures like Question 2 and more courageous jurists like those on the Massachusetts Supreme Judicial Court.

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