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45 Suffolk U. L. Rev. 243 (2011-2012)
Criminal Procedure - The Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts - Commonwealth v. Cruz

handle is hein.journals/sufflr45 and id is 245 raw text is: Criminal Procedure--The Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts-Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011) Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures.1 Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity.2 In Commonwealth v. Cruz, a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L).4 The court held that the odor of burnt marijuana alone is no longer sufficient to establish reasonable suspicion of criminal activity and, accordingly, an exit order is impermissible.5 On June 24, 2009, in a high-crime area of Boston, two patrolling police officers pulled up beside a vehicle parked in front of a fire hydrant.6 The defendant, Benjamin Cruz, was seated on the passenger side of the vehicle, and an unidentified person was in the driver's seat.7 When the officers approached 1. See U.S. CONST. amend. IV (guaranteeing citizens protections against unreasonable searches and seizures); see also MASS. CONST. pt. 1, art. XIV (protecting individuals from all unreasonable searches, and seizures, of his person... and all his possessions). The standard for searches and seizures is one of objective reasonableness. See Commonwealth v. Gaynor, 820 N.E.2d 233, 244 (Mass. 2005) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)) (asserting touchstone of the Fourth Amendment is reasonableness); see also Commonwealth v. Murdough, 704 N.E.2d 1184, 1187 (Mass. 1999) (explaining subjective intentions irrelevant so long as actions objectively reasonable). 2. See Commonwealth v. Bostock, 880 N.E.2d 759, 765 (Mass. 2008) (concluding reasonable suspicion of criminal activity justifies police acting intrusively); see also Commonwealth v. Silva, 318 N.E.2d 895, 898 (Mass. 1974) (justifying increased investigative measures when officer reasonably suspects person committed crime). 3. 945 N.E.2d 899 (Mass. 2011). 4. See id. at 908 (addressing decriminalization of marijuana); MASS. GEN. LAWS ANN. ch. 94C, §§ 32L- 32N (West 2010) (effective Dec. 4, 2008). Entitled An Act Establishing a Sensible State Marihuana Policy, the law renders possession of an ounce or less of marijuana a civil infraction--similar to a speeding ticket-and imposes a $100 fine and forfeiture of the marijuana. MASS. GEN. LAWS ANN. ch. 94C, §§ 32L-32N (West 2010) (effective Dec. 4, 2008); see also Globe Staff, Marijuana Decriminalization Law Goes into Effect, BOSTON.COM (Jan. 2, 2009), http://www.boston.connews/local/breakingnews/2009/01/marijuana_decri_ I.html (outlining general scope of decriminalization law). While the penalties associated with an ounce or less have been reduced, decriminalization has not affected the criminal status of numerous other activities involving marijuana. See 945 N.E.2d at 915 (Cowin, J., dissenting). 5. 945 N.E.2d at 913 (holding exit order requires reasonable suspicion of criminal activity). 6. Id. at 902 (recounting basis for police investigation of civil motor vehicle violation). The officers were later unable to recall whether the engine had been running. Id. at 909. 7. Id. at 903. The officers knew Cruz, knew that he resided on that particular street, and did not consider

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