MA: Cruz on smell of burnt MJ after decrim applies to smell of unburnt MJ, too

Because of decriminalization of one oz or less of marijuana in Massachusetts, the smell of unburnt marijuana alone is also not probable cause for search of a car. Commonwealth v. Overmyer, 469 Mass. 16, 11 N.E.3d 1054 (2014):

In Commonwealth v. Cruz, 459 Mass. 459, 472, 945 N.E.2d 899 (2011) (Cruz), we held that, in the wake of the 2008 ballot initiative decriminalizing possession of one ounce or less of marijuana (2008 initiative), “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity.” This case requires us to resolve a question not explicitly answered in Cruz, supra: whether the smell of unburnt, as opposed to burnt, marijuana suffices to establish probable cause to believe that an automobile contains criminal contraband or evidence of a crime.1 Here, where police searched the defendant’s vehicle after seizing a “fat bag” of marijuana from the glove compartment, and after perceiving an odor of unburnt marijuana, we hold that such odor, standing alone, does not provide probable cause to search an automobile. Because it is not clear on this record, however, whether police had probable cause to arrest the defendant for criminal possession of marijuana on the basis of the marijuana seized from the glove compartment, we remand the matter to the District Court for further proceedings on that issue.