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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
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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