{"id":16154,"date":"2015-03-02T06:33:33","date_gmt":"2015-03-02T11:33:33","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=16154"},"modified":"2015-03-02T08:52:09","modified_gmt":"2015-03-02T13:52:09","slug":"ma-where-possession-of-1-oz-of-mj-is-a-civil-infraction-seeing-that-much-in-a-car-doesnt-support-a-search","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=16154","title":{"rendered":"MA: Where possession of 1 oz of MJ is a civil infraction, seeing that much in a car doesn’t support a search"},"content":{"rendered":"

Seeing only enough marijuana to be a civil infraction is not probable cause for an automobile exception search of a car. Commonwealth v. Sheridan<\/a>, 2015 Mass. LEXIS 102 (February 27, 2015):
\n<\/p>\n

Because the [2008] ballot initiative transformed the possession of one ounce or less of marijuana into a civil infraction, not a crime, we concluded in Cruz that a warrantless search of a vehicle is permissible only if police can establish \u201cprobable cause to believe that a criminal amount of contraband was present in the car.\u201d Id. at 476 (emphasis in original).<\/p>\n

Similarly, in Daniel, supra at 749, police smelled \u201cthe odor of freshly burnt marijuana\u201d while conducting a traffic stop. When an officer asked whether the vehicle’s occupants had any marijuana, a passenger gave the officer two small bags, collectively containing less than one ounce of marijuana. Id. The officer then ordered the occupants out of the vehicle and searched it. Id. at 750. During the search, he found an unlicensed firearm in the glove compartment. Id.<\/p>\n

We held that the officer lacked probable cause to search the vehicle. Id. at 751-752. Possession of the quantity of marijuana contained in the two small bags \u201cconstituted a civil infraction, not a criminal offense,\u201d id. at 751, and the vehicle’s occupants \u201csurrendered [the] bags \u2026 at the request of the officer.\u201d Id. Consequently, \u201c[a]bsent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband.\u201d Id. at 752.<\/p>\n

. . .<\/p>\n

… In evaluating this argument, it is important to distinguish an officer’s power to seize the marijuana from the officer’s power to make an entry into the vehicle to effect that seizure. We agree with the District Court judge’s determination that any quantity of marijuana is \u201ccontraband\u201d and is subject to seizure. We disagree, however, with the judge’s conclusion that, to effect that seizure, the officers were entitled to make an entry into the vehicle that \u2014 lacking probable cause \u2014 they otherwise would be prohibited from making.<\/p>\n

The Commonwealth contends that the seizure of the marijuana was proper because it was in \u201cplain view.\u201d\u201cUnder our plain view doctrine, a police officer may seize objects in plain view where four requirements are met: (1) the officer is \u2018lawfully in a position to view the object\u2019; (2) the officer has \u2018a lawful right of access to the object\u2019; (3) with respect to \u2018contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent\u2019 or, with respect to \u2018other types of evidence \u2026 where the particular evidence is plausibly related to criminal activity of which the police are already aware\u2019; and (4) the officer \u2018come[s] across the object inadvertently.\u2019\u201d Commonwealth v. White, 469 Mass. 96, 102, 12 N.E.3d 348 (2014), quoting Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307, 930 N.E.2d 91 (2010). There is no dispute here that the first and fourth requirements are met: the officers were lawfully in a position to observe the bag of marijuana, since the bag was visible from outside the vehicle where the officers were positioned in effecting a permissible, routine traffic stop; and the officers came across the marijuana inadvertently, since there is no contention that the officers effected the traffic stop to search for marijuana.<\/p>\n

The Commonwealth, however, cannot satisfy the doctrine’s second requirement, which demands that the officer have \u201ca lawful right of access to the object.\u201d …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Seeing only enough marijuana to be a civil infraction is not probable cause for an automobile exception search of a car. Commonwealth v. Sheridan, 2015 Mass. LEXIS 102 (February 27, 2015):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[51,20],"tags":[],"class_list":["post-16154","post","type-post","status-publish","format-standard","hentry","category-plain-view","category-probable-cause"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16154","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16154"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16154\/revisions"}],"predecessor-version":[{"id":16164,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/16154\/revisions\/16164"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16154"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16154"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16154"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}