MA: In a MMJ state, SW for a grow operation must plead PC that target wasn’t a licensed grower

In a medical marijuana state, a search warrant for a grow operation requires the state show that the target of the search is not a licensed grower. Grant of motion to suppress affirmed. Commonwealth v. Canning, SJC-11773 (April 28, 2015):

The central question presented is whether, with the act in effect, police may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana by establishing probable cause that cultivation is taking place or are required to establish probable cause to believe that the individual was not registered, or licensed, to do so. In accord with cases relating to other types of license regimes, we conclude that, if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance. In this case, a judge in the District Court allowed the defendant’s motion to suppress evidence seized by police during a search of the defendant’s property conducted pursuant to a warrant in May of 2013, after the act went into effect. We agree with the motion judge that the affidavit filed in support of the search warrant application demonstrated probable cause that the defendant was cultivating marijuana at the property, but that, in light of the act, the affidavit failed to establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime. We affirm the order allowing the motion to suppress.