Police Continue to Investigate Low-level Marijuana Use Despite Decriminalization

Commonwealth’s investigations of noncriminal amounts of marijuana circumvent the will of the majority of Massachusetts voters.

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BOSTON — Despite approval by Massachusetts voters of a ballot measure that decriminalized possession of up to one ounce of marijuana, unwarranted investigations of noncriminal marijuana possession continue. Prosecutors are now focusing on the sharing of marijuana among users, which prosecutors regard as criminal “distribution” even when no money changes hands.

In 2008, more than 65 percent of Massachusetts voters approved a measure meant to reduce punishments for marijuana offenders. Possession of up to one ounce of marijuana is an infraction of the law punishable by a fine, but is no longer a criminal offense. Nonetheless, the Commonwealth has argued in cases since then that sharing noncriminal amounts of marijuana constitutes criminal “distribution”–a crime punishable by up to two years in prison. Under the Commonwealth’s theory, anyone who shares a marijuana cigarette is a drug distributor, and someone who engaged in this “distribution” near a school–such as a high school student smoking with his friends–can face enhanced punishment for drug crimes committed in school zones.

The American Civil Liberties Union of Massachusetts and the national American Civil Liberties Union, together with cooperating attorney Alex Philipson, today submitted a friend-of-the-court brief in a case, Commonwealth v. Pacheco, which challenges this interpretation.

“As our brief explains, the Commonwealth is simply wrong to argue that sharing marijuana constitutes criminal distribution,” said Matthew R. Segal, legal director for the ACLU of Massachusetts. “More fundamentally, the Commonwealth’s argument contradicts the will of the voters who approved marijuana decriminalization in 2008. The voters sought to limit marijuana prosecutions, not to invite creative ways for the Commonwealth to increase them.”

Pacheco stems from an incident that occurred after decriminalization went into effect, when a Massachusetts state trooper encountered a car with occupants who seemed to have been smoking used marijuana. Upon ordering the occupants out of the car and searching the entire passenger compartment, he found nothing more than a single bag containing less than one ounce of marijuana. Nonetheless, the officer expanded his search to trunk of the vehicle and to jackets and backpacks stored inside.

This search was unconstitutional. In 2011, the Massachusetts Supreme Judicial Court ruled in Commonwealth v. Cruz that noncriminal possession of marijuana does not even justify ordering a car’s occupant out of a car, much less searching the entire vehicle. Philipson said the amicus brief argues that, “Even communal use of small amounts of marijuana does not justify searching a car’s trunk, absent additional evidence to raise an officer’s suspicion that the occupants were trafficking significant quantities of the drug.” Even suspicion of possession of criminal amounts of marijuana does not justify searching an entire vehicle, absent a warrant.

“Massachusetts is already struggling to deal with the complications of the state drug lab scandal, which might require re-trying thousands of drug cases, on top of the ordinary case load,” said Carol Rose, executive director of the ACLU of Massachusetts. “The Commonwealth should be doing everything it can to reduce the burden on our criminal justice system–not forcing more and more people into it for nonviolent drug offenses that Massachusetts voters have clearly said should be deprioritized in favor of fighting serious crime.”

For more information about Commonwealth v. Pacheco, go to: http://www.aclum.org/marijuana_sharing

For more information about Commonwealth v. Cruz, go to: http://www.aclum.org/commonwealth_v_cruz

For more information about the ACLU of Massachusetts, go to: http://www.aclum.org