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Scent of unburnt marijuana exclusively is not grounds to search warehouse, SJC rules

(Gerald Herbert/Associated Press)

The smell of unburnt marijuana alone is not probable cause to search a warehouse in Massachusetts, unless other evidence points to illegal activity, the state’s Supreme Judicial Court wrote in a ruling Monday.

But the court said there was plenty of other evidence to support a 2017 search of a warehouse in Amherst, where police found an illegal marijuana growing operation.

The defendant in the case, Gregory W. Long, was arrested in October 2017 alongside several others in connection with an 11,000-square-foot warehouse in Amherst, where police say they found an illegal marijuana growing operation.

Long was charged with trafficking in more than 50 pounds of marijuana, but his lawyer said the evidence against him should be suppressed. They argued that the police couldn’t rule out the possibility “that the odor emanating from the windowless, 11,000-square-foot, cinder-block warehouse was the product of the legal marijuana use, possession, or cultivation,” the SJC decision said.

In Massachusetts, adults over the age of 21 can grow up to six plants in a private residence, and up to 12 plants in a residence where two or more adults live.

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The court agreed with the argument that the smell of unburnt marijuana alone is not evidence of illegal marijuana-related activities.

“Our appellate courts consistently have held that the odor of marijuana, burnt or unburnt, without more, is insufficient to establish probable cause that a crime is being committed,” the court wrote in its decision.

But in Long’s case, the decision said, other evidence pointed to illegal activity, which justified searching the warehouse.

Prior to getting a warrant to search the property, police noticed surveillance cameras around the building and changes to the warehouse’s ventilation system — “methods utilized to cultivate and harvest marijuana,” the court said.

Officers also checked the registration of the cars parked in the driveway and reviewed the criminal records of the drivers. Police said Long had six entries on his record, including three previous cases of marijuana possession. Officers also checked to see whether Long had a medical marijuana card or was otherwise licensed to grow marijuana, but found that he was not.

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Attorney Luke Ryan, who represented Long, said he never argued that the scent of marijuana should play no role in determining whether there is probable cause, and he criticized the court for summarizing his argument that way in its ruling.

His argument, he said, was that the police did not have enough evidence of criminal misconduct before searching the warehouse. He also said that the court ultimately used evidence in its decision that Ryan didn’t address in his brief.

“It’s a decision that doesn’t give enough attention to the totality of circumstances that probable cause ought to command,” he said.

The SJC ruled in 2011 that the smell of burnt marijuana in a car did not justify searching a vehicle. In 2014, the court ruled the scent of unburnt marijuana wouldn’t justify the search of a vehicle, either. (The court clarified earlier this year that the smell of burnt marijuana, paired with peculiar behavior from the driver, or other evidence that the driver is under the influence, is grounds for a search.)

Matthew Segal, the legal director for the American Civil Liberties Union of Massachusetts, said the court has consistently respected the will of Massachusetts voters who first decriminalized marijuana and later legalized medical and adult-use marijuana.

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Monday’s decision, Segal said, is more evidence that the court will continue in that vein.

“Respecting the will of the voters means that the police should not be investigating marijuana-related conduct that’s not a crime in Massachusetts,” he said.

Though the SJC’s decision didn’t work out in Long’s favor, Segal said, “there’s nothing in this opinion that says it’s now open season on people who are using marijuana consistent with state law.”


Felicia Gans can be reached at [email protected]. Follow her on Twitter @FeliciaGans.