MA: “Overwhelming odor” of MJ in decrim state supported SW for car; it’s not a small amount

Despite marijuana small quantity decriminalization in Massachusetts, the overwhelming odor of unburnt marijuana coupled with a small quantity in a bag and cash in the car was probable cause for a search warrant. Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 3 N.E.3d 82 (2014):

Where these cases explain how the Massachusetts marijuana decriminalization law “implicates police conduct in the field,” Commonwealth v. Cruz, 459 Mass. at 472, it is reasonable to conclude that an odor of unburnt marijuana, like an odor of burnt marijuana, standing alone, does not provide reasonable suspicion of criminal activity that would authorize the police to detain a person or issue an exit order, or probable cause to conduct a search.8 However, when an experienced police officer detects an “overwhelming” odor of unburnt marijuana that is “pervasive” throughout the entire vehicle, and the officer reasonably believes it is inconsistent with the small quantity of marijuana that is visible in the vehicle, the officer has specific and articulable facts that support a reasonable suspicion that a crime is being committed, namely possession of more than one ounce of marijuana. Here, the combination of the “overwhelming” odor of unburnt marijuana and the additional facts known by the officer, namely, the absence of any implements for smoking marijuana, the three sizable bundles of United States currency, the excess wiring under the dashboard and throughout the passenger compartment consistent with hides, the manner in which the marijuana in the small bag in the console was packaged, the inconsistency between the strength of the odor and the amount in the small bag, and the fact that the two occupants had prior criminal convictions of drug offenses, was sufficient to establish probable cause to believe a criminal quantity of marijuana was hidden in the vehicle. It is therefore unnecessary for us to decide whether the “overwhelming” odor of unburnt marijuana alone provided probable cause to support the issuance of the search warrant.