Pubdate: Sun, 8 May 2011
Source: Metrowest Daily News (MA)
Copyright: 2011 MetroWest Daily News
Contact:  http://www.metrowestdailynews.com/
Details: http://www.mapinc.org/media/619
Authors: Michael D. Cutler
Note: Michael D. Cutler is an attorney practicing in Northampton.
Referenced: COMMONWEALTH vs. BENJAMIN CRUZ http://mapinc.org/url/L9vRYWPr
Bookmark: http://www.mapinc.org/states/MA (Massachusetts)

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.
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MAP posted-by: Richard Lake