Amateurishly packed bags of marijuana not proof a teen plans to sell them, court rules

The Supreme Judicial Court today tossed a charge of marijuana possession with intent to distribute against a Dorchester teenager found with 13 small bags of pot in his pants in 2012.

The state's highest court ruled that none of the factors cited by police and prosecutors - which included the teen's nervousness when he realized police were watching him and the fact he had no roach clips or other paraphernalia - were enough, either individually, or collectively, to warrant a charge of possession with intent to distribute. However, the court noted that some of its reasons for dismissing the charge were due to the fact that the defendant was a teen; an adult might not fare so well with a similar motion to dismiss.

The teen, 16 at the time, was a passenger in a car stopped in Codman Square after members of the BPD Youth Violence Strike Force watched him and three other guys walk down the street, strike up a conversation with a couple who then walked away. When they stopped the car, one of the officers noticed the smell of unburned pot. And when neither could produce ID, they were ordered out of the car - at which point the suspect began looking at his groin. A pat frisk discovered something than the expected bulge: "thirteen individually wrapped bags of marijuana inside a clear plastic sandwich bag."

Prosecutors argued that, collectively, all the evidence provided probable cause for a charge of possession with intent to distribute.

No, it didn't, the court ruled. People in some Boston neighborhoods strike up conversations with strangers and by itself cannot contribute to probable cause, the court said, citing "the normal social intercourse that occurs with some frequency on the streets of Boston's neighborhoods."

That a 16-year-old would seem nervous when realizing cops are following his every move is pretty normal, too, the court said.

The smell of unburned marijuana? Last year, the court ruled that was no longer sufficient for an arrest, due to the decriminalization of marijuana. That there was nothing distinctive about the plastic bags the kid had the pot in also contributed nothing to the legal requirements for charging him, because that's just the sort of thing somebody packing pot for personal use might due. Ditto, even for his lack of smoking accoutrements:

A person who intends only to smoke marijuana would fit precisely the profile of the juvenile in this case. For simple possession, he had no need of cash, scales, or evenly measured packages in amounts consistent with a quick sale.

So none of the individual reasons were good enough. But collectively? Nope, in part due to the decriminalization referendum, in part due to the defendant's age:

In deference to those policy goals, we exercise a measure of vigilance in our analysis of questions related to the issue of probable cause to believe that a crime has been committed. Accommodation of those policy goals means that where a defendant or juvenile possesses a small quantity of marijuana, less than that required to trigger a criminal prosecution, the other factors must be weighed more heavily in the probable cause analysis. Here, none of those factors tips the scale in favor of probable cause to believe that the juvenile intended to distribute the substance. ... [T]he juvenile's age detracts from the probative value that otherwise might be accorded to his nervous demeanor and his association with other young black males on a street corner. While possession with the intent to distribute any amount of marijuana is a criminal offense, we reiterate that "where judicial officers evaluate probable cause [in cases involving small, presumptively decriminalized amounts of marijuana], they must be mindful of the risk that police officers or prosecutors might allege an intent to distribute based on the mere suspicion of such an intent for the purpose of charging the offender as a criminal or delinquent rather than as a civil violator."