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Court tosses loaded gun found in glove box as evidence because the smell of pot not enough to search car

The Supreme Judicial Court ruled today a Boston police officer should not have searched the glove compartment of a car he had stopped in Dorchester because he failed to provide evidence he needed to search the car immediately to protect either his own or the public's safety.

The ruling upholds the decision of a Boston Municipal Court judge to disallow the gun and ammunition, which might make it tough for prosecutors to continue charging the couple in the car with illegal possession of a loaded firearm with a defaced serial number and illegal possession of a large capacity feeding device.

A Boston police officer pulled the woman over around 3:40 a.m. on Dec. 13, 2009 after he noticed her SUV had a malfunctioning headlight shortly before she made a sudden U-turn right in front of his cruiser. On getting a whiff of burned marijuana, he asked her if she had anything else in the car, then ordered her and Daniel, her passenger out. He searched the car and, on opening the glove compartment, found the loaded gun.

In 2011, the court ruled that the 2008 referendum decriminalizing possession of small amounts of marijuana meant the odor of pot by itself was no longer sufficient for a warrantless search of a car.

The decision is one of three today in which the court said police were wrong to search a vehicle or person because of the smell of pot. In Commonwealth vs. Kiiyan Jackson, the court said a state trooper who watched a man at the 2010 Hempfest on Boston Common share a marijuana cigarette should not have searched the man's backpack - in which he found " a substance resembling marijuana packaged in small plastic bags" because of the 2008 law.

In the Daniel case, Suffolk County prosecutors argued that the officer had other reasons to search the car to protect his safety: "[T]he late hour; that the officer was outnumbered by the vehicle's occupants; Daniel's hunched shoulders and movement as the officer approached the vehicle; Daniel's emptying his pockets when not specifically requested to do so; and the presence of a noncriminal amount of marijuana."

The court, however, dissected those reasons: That the woman handed over two small bags of pot is no longer enough evidence of a crime in Massachusetts, because of the 2008 referendum and the 2011 ruling. The two people in the car also complied with all of the officer's orders, including to get out of the car and sit beside it when told to and that hunched shoulders alone are not enough to suggest an officer is in danger.

Here, [the woman] surrendered two small bags of marijuana at the request of the officer. Possession of the amount contained therein constituted a civil infraction, not a criminal offense. "As citizens, we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty." ... Absent 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.

Last year, the Massachusetts Appeals Court ordered the gun reinstated as evidence, saying the officer had the right to search the car because the woman appeared to be operating under the influence of marijuana - a criminal offense.

But the SJC, the state's highest court, rejected that argument. The court said that at a hearing before the trial judge on suppressing the evidence, prosecutors produced no evidence that the driver might be impaired, besides the initial U-turn.

Here, the officer smelled the odor of burnt marijuana and recovered two small bags of it from the woman, who explained that the smell was the result of others using marijuana at a party. While the officer was not required to credit this explanation, the Commonwealth elicited no testimony that [the woman] showed any signs of impairment during their encounter. The officer did not testify that [the woman]'s eyes were red or glassy, that her speech or movements were unusual, or that her responses to questioning were inappropriate or uncooperative.

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Comments

Now let's just wait till he murders someone so we do have a legal reason to charge him. Gotta love idiotic laws.

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You think the 4th Amendment is idiotic?

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I don't think it was originally meant to keep criminals with 50 page arrest records out of jail.

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it's meant to protect the innocent against powerful government actors, with the knowledge that sometimes the guilty will go free.

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Yes, it did a great job protecting Aaron Swartz.

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I get the scare headline, but these rulings are important precedents against racial profiling and the stop and frisk fiasco in New York. Put this headline in the context of data from The New Jim Crow (please read this book!) and understand that only the people whose searches turn up stuff make it to court-- it's about profiling, not about one shady gun.

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The new Jim Crow? It's not white people being killed by those guns - it's black people. But then you don't care about the black children shot down while playing in the streets - you're too busy reading your book.

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How to break this to you. It is not only black "children" being shot down. It is too many people. My 19 year old, lily white boy was killed with a .22 And no, the murderer was not black. Sandy Hook? Don't think there was one black child there. One too many murders and one too many guns

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Racial profiling? Are you suggesting that if a white guy banged an illegal U-Turn in front of a police car in the overnight hours, he wouldn't have been stopped and the car wouldn't have been searched if there were a smell of marijuana? They would just let him go and wait for the next black guy to come along? Spare me.

David Clark, who shot and murdered Trooper Mark Charbonnier in Kingston in 1994, is as white as snow. Believe it or not, cops are eager to remove unlawfully carried guns from the streets, regardless of the color of the carrier. Sorry if that doesn't fit your narrative. As for the court ruling, it's time for the legislature to make use/possession of marijuana in a motor vehicle an arrestable offense. The possibility of impairment, even from just a contact high, is too great to be ignored.

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For that matter, they really don't have anything to do with racial profiling. These are strictly and uniquely Massachusetts rulings related to the 2008 decriminalization of possession of small amounts of marijuana. This is particularly evident in the Hempfest ruling, where the main issue was a trooper watching a guy share a joint, but even in the Daniel case, which does get into other probable-cause issues, what started the whole thing was the odor of freshly burned pot.

Looking for cases that can be used to curb what's been going on in New York is a worthy cause, but these cases won't do it.

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I didn't mean these could specifically impact what's going on in NY, but help ensure Boston doesn't sink to that level, by reducing the kinds of things for which cops are allowed to stop and search someone.

-OP

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2000!!! Most were young men, especially young black men. Along with many totally innocent people. Seriously, the last statistic I checked from 2009, fbi and NYC police report white perps were responsible for 2-3% [!] of gun related crime in the city.

NYC now is averaging less than 400 murders a year. When you're averaging 2000 murders a year, that calls for drastic measures to be taken, in my book.

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And yet we somehow accomplished that without a massive program to search young men suspected of Walking While Black.

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that one of the greatest anti-crime programs was in Moscow in the 1940s and 1950s. I mean Stalin really was a world leader in crime prevention.

Berlin in the late 1930s was a close 2nd.

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Between walking while black and walking while thug. Stop looking and acting like a gangbanger and cops won't bother you, doesn't matter if you're black, white, yellow or green.

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stop equating everyone dressing with style as a criminal. sorry nobody dresses like your ugly butt anymore but that doesn't give you the right to criminalize fashion choices, or make sweeping generalizations about all people who dress well. get with the times gramps.

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Lib logic - crying for gun control, yet doing all they can trying to derail the effort to get illegal guns off the streets. Go figure...

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- Cops shouldn't be hamstrung by fourth amendment - CHECK

- Assumption of Racial Profiling - CHECK

- You don't care about the children - CHECK

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...if there's no comments re: bike lanes, puns, or crazed Segway-driving tourists.

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That's the space in the middle with a big T and a circle around it - something happens every day so it's not even worth making a bingo space for it unless it's free.

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Why complain about it if you have nothing to hide? I'll gladly deal with being searched for no reason if my actions are deemed suspicious by the police once or twice in my lifetime instead of dealing with an armed thug who did not get searched, disarmed and locked up because stop and frisk is raaaaaay-cyst. The only ones who oppose this are the said armed thugs and bleeding-heart liberals who call in a SWAT team whenever they see a thuggish-looking person strolling down the street of their lily-white McMansion-filled suburb.

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"They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

Oh, and be sure to thank the bleeding-heart liberals for protecting your First Amendment right to be a d*** on this blog.

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Old Ben must roll in his grave every time someone on the Internet uses his quote to justify not having an opinion to contribute

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And Doug Hofstadter spins in his office chair every time someone with no opinion to share "goes meta" on someone else's opinion, whether stated in an original way or not.

Wait, what was that you were saying about the 4th Amendment?

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So, 1791 second amendment is antiquated, meaningless in modern society and needs to be disregarded, yet a 1755 quote (taken completely out of context in this case) is still somehow relevant? Gotta love double standards.

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No free person with a lick of self-respect would submit to being searched for no reason by anyone, badge or no.

Your slave mentality is pathetic.

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What are the chances of you being searched for no reason if you don't look and act like a typical gangbanger?

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ding ding ding! this comment just defined what racial profiling is!!!

yo: dressing in a REALLY COMMON FASHION does not a criminal make & confusing fashion with criminality just tells me you're either a cop or hopelessly out of touch.

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n/t

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