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Mass. Police Can't Act on Smell of Burnt Marijuana in Car

By Stephanie Rabiner, Esq. on April 22, 2011 | Last updated on March 21, 2019

Despite marijuana's distinct scent, Massachusetts' highest judicial authority, the Supreme Judicial Court (SJC), has ruled that the smell of marijuana alone is not sufficient enough for an officer to order an occupant out of a vehicle.

The reason? Possession of one ounce or less of marijuana is no longer a criminal offense in the state.

In 2009, Benjamin Cruz was in a parked car when police noticed the smell of marijuana. After questioning, he and his passenger were ordered out of the car.

As the Massachusetts SJC points out, the Fourth Amendment only permits officers to order people out of a vehicle if they (1) reasonably feel that they are in danger; (2) there is reasonable suspicion that they are engaged or about to engage in criminal activity; and (3) there is probable cause to search the car.

The court focused on reasonable suspicion, as there was no evidence of danger and probable cause is a higher legal standard.

Ordinarily, the smell of marijuana is sufficient to meet the reasonable suspicion requirement. However, small time possession is a civil offense in Massachusetts, and reasonable suspicion requires evidence of criminal activity.

The court determined that the smell of marijuana alone does not indicate how much marijuana a person may possess, merely that they possess it. Or, in other words, it doesn't indicate whether they possess enough to be criminal, which means the reasonable suspicion standard is not met.

However, the dissent in this case made a very important point.

While the smell of marijuana rarely indicates quantity, it's not unreasonable to suspect that a person is carrying more than an ounce, or that they have an intent to distribute.

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