Angiulo: SJC Says Marijuana Cultivation Alone is Not Proof of Crime

Leonardo Angiulo,

The entrance of police into a home is one of those things that everyone knows is a big deal.  It's a big enough deal that the federal and state constitutions very specifically require warrants in order to conduct searches and seizures of private property. In order to get a search warrant, a member of law enforcement must make an application and explain that they are investigating a crime and have probable cause to believe the requested search will produce evidence of that crime.  When it comes to marijuana cultivation, a recent case from the Supreme Judicial Court explains how the game has changed since we passed the medical marijuana law in Massachusetts.

The case of Commonwealth v. Canning  represents an affirmation that the plain language of a statute will control how courts proceed. This opinion points out that the first section of the medical marijuana act recites that the citizens of Massachusetts intend that no qualifying patient should be punished for the medical use of marijuana. The law further stated that medical use was specifically defined as cultivation for the benefit of qualifying patients.
 
In the facts of this case, members of law enforcement used a number of means to form probable cause to believe that a particular location was being used to grow pot plants. They had a confidential informant that said it. The residents were seen by police bringing a large amount of grow material from a hydroponic supply shop to the house. The officer's used nightvision goggles to detect light emanating from a window and coupled that with the distinct smell of marijuana cultivation coming from the home to support their suspicions.

While this is just some of the evidence they collected, the court found there was a major issue outstanding.
The single piece of evidence the court said was missing was whether, or not, the targets of the search warrant were registered to cultivate the marijuana in question. Going forward, this case seems to indicate that law enforcement need to show in search warrant applications that the this issue has been investigated and provide evidence that no license authorizes the plants. As the court explains, this standard could be met in a number of ways.

To determine the type of evidence the court is looking for consider that the medical marijuana act did not eliminate pre-existing criminal law. It is still illegal to cultivate marijuana for sale unless you are a properly licensed medical marijuana treatment center. In addition, the act only authorizes private parties to grow a sixty-day supply of ten ounces if they have a hardship registered with the Commonwealth to permit cultivation. If there is some evidence gathered by law enforcement to show that a person is acting outside of what is permitted by their medical marijuana license they may have pushed themselves past the boundaries of what is protected by the law and a search warrant may properly be issued.
 
The standard for search warrant applications is probable cause. In defining the evidence required for this case, the court analogized the cultivating of marijuana to the carrying of firearms. Even though one cannot legally do so without a license, the simple carrying of a firearm does not provide probable cause that a crime is being committed. Just like an officer will not ignore information that a suspect has a gun in public, a person growing marijuana could properly become the subject of scrutiny by law enforcement.

While the SJC required additional proof for search warrants they did not say such orders could never issue.  Even with this recent ruling, it appears as though people that go beyond the scope of cultivation permitted under the medical marijuana statute may still be subject to criminal penalties.  

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at langiulo@gmail.com.