Should decriminalization of marijuana make it harder for police to search pot smokers for other contraband?

The Supreme Judicial Court hears arguments Thursday on a Jamaica Plain drug bust that could affect future cases involving people stopped for possible possession of small amounts of marijuana.

At issue is the 2009 arrest of a man in Jamaica Plain on charges of possession of crack with intent to distribute after he and a companion were ordered out of a car on Sunnyside Street from which police got a whiff of burned marijuana.

Police say they ordered the pair out of the car - illegally parked at a hydrant - because the area was known for its gang activity and violence and because the two acted suspiciously when questioned by officers. As one of the men stood on the sidewalk, an officer asked him if he had anything on him; he replied he had "a rock" [of crack] in his front pocket, which the officer then retrieved, and for which he was then arrested.

West Roxbury District Court Judge Mary Ann Driscoll agreed with the man's lawyer to toss the crack as evidence, however, ruling the officers failed to show enough probable cause to order the men out of the car to begin with:

[W]hile the neighborhood may be a high crime area, it was late afternoon in June, still daylight. Their windows were rolled down. The men did not make any furtive gestures. The driver seemingly answered Morgan's questions truthfully. Defendant was known to the officers, but not from being arrested or from a reputation of violence.

[Current state law on marijuana] has no effect on other statutes such as distribution of marijuana, possession with intent to distribute or operating under the influence of marijuana, but there was no probable cause to believe that any of those offenses were being committed. Thus, there is no probable cause that Defendant or the other occupants were committing any criminal offense. That being the case, the police were not justified in ordering the occupants from the vehicle.

In its appeal, the Suffolk County District Attorney's office argues all of the factors, when coupled with the fact that marijuana remains a "controlled" substance means the officers had probable cause to order the men out after they smelled the pot - and that, in any case:

Even if the officers did not act with probable cause, they had reasonable suspicion that the defendant had he driver had engaged in distribution of marijuana because the officers smelled burnt marijuana on both sides of the car, they saw that the driver and the defendant had shared a cigar known to the officers to mask the smell of marijuana, the driver admitted to having smoked marijuana earlier in the day, both men in the car appeared nervous, and the defendant failed to make eye contact. In addition, the officers had reasonable suspicion that the driver had operated the car under the influence of marijuana. Because of the defendant's own suspicious behavior, Officer Diaz was permitted to order him out of the car. When Officer Diaz questioned the defendant outside the car, he was not required to give the defendant Miranda warnings. When the defendant then admitted to having a rock of cocaine in his pocket, Officer Diaz had probable cause to arrest him.

• Suffolk County DA's brief
• Defendant Benjamin Cruz's brief
• NORML amicus brief
• Committee for Public Counsel Services amicus brief