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Smell of Marijuana no longer enough to establish probable cause in MA. Search can be thrown out.

Due to the recent decriminalization of marijuana in Massachusetts, it is no longer enough for the police to smell marijuana in the course of a stop to conduct a search of that vehicle. Because it is no longer an illegal substance in this State, the arresting officer must observe that the person appears to be under the influence of that substance in order to have probable cause to conduct a search. This means an increasing number of criminal cases being thrown out because the evidence is suppressed.

The legalization is going to take a little getting used to. The police who have had wide latitude with searches are now going to have to be more careful when they are making a stop. Lawyers too must recognize that this is an opportunity that has presented itself to advocate for their clients. It’s so important for lawyers to keep up to date on changing law and it’s impact on cases. I bet we will see a lot more motions to suppress evidence in the criminal courts in the near future until everyone has gotten used to the new law.

It’s also really important for Mass residents to remember that marijuana is still illegal in many other states. Just because you bought your pot in MA, doesn’t mean it’s ok to smoke it or possess it in NH.

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