Court: Decriminalization of marijuana not always a get-out-of-jail card at traffic stops

A man facing illegal-weapons charges stemming from a Mattapan traffic stop will have to explain why police say they found a loaded gun in a secret compartment in his car when he goes to trial, the Massachusetts Appeals Court ruled today.

A lower-court judge had tossed the evidence against Yves Montaine, saying the mere fact his car reeked of un-smoked marijuana when he was stopped for traffic infractions at Blue Hill Avenue and Wellington Hill Street in December, 2010 did not establish probable cause for a Boston Police detective to get a search warrant for the car - which revealed a hidden compartment holding a gun loaded with 15 rounds of ammunition.

Even the fact that marijuana found in the car was wrapped in plastic as if ready for sale - and the presence of "$2,300 (in bundles of $1,000, $300, and $1,000) and wrapped in rubber bands in a manner the [detective] knew to be consistent with the way that proceeds of drug transactions commonly were wrapped" - was not enough evidence of probable cause for Boston Municipal Court Judge Sally Kelly, nor was the mysterious wiring under the dash or the fact that both men had prior records.

As it did in a 2012 case, the state's second highest court acknowledged that the mere odor of pot by itself no longer justifies a more intensive search, since possession of small amounts of marijuana is no longer a criminal offense - but only if that's the only evidence police have:

[W]hen an experienced police officer detects an "overwhelming" odor of unburnt marijuana that is "pervasive" throughout the entire vehicle, and the officer reasonably believes it is inconsistent with the small quantity of marijuana that is visible in the vehicle, the officer has specific and articulable facts that support a reasonable suspicion that a crime is being committed, namely possession of more than one ounce of marijuana. Here, the combination of the "overwhelming" odor of unburnt marijuana and the additional facts known by the officer, namely, the absence of any implements for smoking marijuana, the three sizable bundles of United States currency, the excess wiring under the dashboard and throughout the passenger compartment consistent with hides, the manner in which the marijuana in the small bag in the console was packaged, the inconsistency between the strength of the odor and the amount in the small bag, and the fact that the two occupants had prior criminal convictions of drug offenses, was sufficient to establish probable cause to believe a criminal quantity of marijuana was hidden in the vehicle. It is therefore unnecessary for us to decide whether the "overwhelming" odor of unburnt marijuana alone provided probable cause to support the issuance of the search warrant.

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Comments

What about high while driving?

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Is there a law that addresses being high while driving? The question of legal pot aside I am concerned about more people driving while intoxicated.

DUI laws didn't change

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The 2012 question was for a baggie of less than an ounce of weed in the dash. Does seeing that (which is a civil violation) mean that you get to toss the whole car looking for worse offenses? The courts said no.

However, what they are saying here is if the car smells like it's made of weed (far more pungent than just an ounce of weed can cause), then the cops have probable cause to flip the car looking for the hidden packages of weed.

Neither of these things is related to whether you are driving under the influence or not which hasn't changed at all.

Have you ever smelled an

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Have you ever smelled an ounce of good weed? How could the stench get any stronger, especially to a cop who probably doesn't smoke weed? A pound or ten pounds isn't gonna smell much different and most people who traffic big amounts will have them vac sealed or in jars/containers and the smell will be minimal and probably only detectable by a dog's nose. I had about a gram or two in a corked glass vial in the trunk of a rental car and got fined $100 for a "cleaning fee" because they said I had smoked in the vehicle. Strong weed smells pungent regardless of the amount... it's stupid to think that a cop could tell how much weight someone has in their car just from the odor.

As for driving under the influence, I don't understand why people keep bringing this up. Weed isn't like alchohol and doesn't impair you in the same way. It also doesn't give you the bravado and the "I can do anything" attitude that alcohol does and that's what usually causes people to drive drunk. I'd say people who actually get affected enough by weed that their driving is impaired would be too paranoid to drive anyway. I used to smoke a lot and you can drive completely fine when you're high. If you smoke a lot and have a high tolerance it absolutely doesn't make a difference. If you smoke on rare occasions and get really high then you will probably be too uncomfortable to drive anyway. I know when you smoked that one time in high school you got super paranoid and couldn't focus and your thoughts were whirling around in your head at 100 miles an hour and you thought your car was a spaceship and totally forgot how to shift gears but most people don't get affected by marijuana like that. There's no way to tell if someone is high at the time of driving anyway since THC can stay in your fat cells for up to a month. Driving under the influence of weed just isn't comparable to driving while drunk and it really bothers me when you old people try to make that comparison.

Overwhelming odor plus other

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Overwhelming odor plus other factors. The 2012 case said odor alone wasn't enough. It's impossible to tell the amount of marijuana by smell alone, and officers aren't trained to identify varying quantities of marijuana by smell.