By Lisa Redmond

Lowell Sun

LOWELL — The smell is unmistakably pungent.

But as distinctive as the aroma of a marijuana cigarette is, the state's highest court has ruled that a puff of smoke is not enough to allow police to order people out of a car to be searched for illegal drugs.

Local police chiefs are fuming over the ruling, which serves to further decriminalize marijuana laws in the state.

Lowell Police Superintendent Kenneth Lavallee said simply, "Law enforcement has been given a setback."

"It's a disappointing situation," said Tewksbury Chief Timothy Sheehan.

In a 4-1 decision this week, the Massachusetts Supreme Judicial Court ruled that in light of the passage of the 2008 ballot question that decriminalizes less than an ounce of marijuana, "the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order (when police order people out of a vehicle)," Chief Justice Roderick Ireland wrote.

But Justice Judith Cowin, the lone dissenting vote, wrote, "Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana that are indeed criminal are under way."

The SJC's controversial ruling has raised concerns from police while generating praise from defense attorneys and advocates of legalizing marijuana.

Sheehan said he read the ruling and agreed with Justice Cowin's dissent, because the smell of marijuana could indicate possession of a non-criminal amount of the drug, or a larger amount that would still lead to criminal charges.

"There's just as much of a chance that there is a criminal amount of marijuana," Sheehan said. "I feel like this handcuffs our ability as law-enforcement officers to do our job."

Lavallee said it is important for police officers to be able to determine if something else is going on in the car, such as the driver is under the influence or if there is marijuana or other drugs being sold.

Sheehan said he does not think the ruling limits officers from getting a driver out of the car if the officer suspects the driver is too intoxicated to be legally driving.

"If the officer determines there are no other circumstances, then no harm, no foul," Lavallee said. "I don't understand why it (a search) would be a concern. With this ruling, "We are put in a situation where our efforts to maintain public safety are diminished."

Billerica Police Chief Daniel Rosa agrees.

"This not only hinders enforcement of the drug laws, but by limiting exit orders it makes officers less safe on the street," he said. "As a result, this makes our communities a bit less safe."

However, Lowell defense attorney Gregory Oberhauser said the SJC's decision "follows the logic" of the decriminalization of small amounts of marijuana.

"If the officer smells smoke, the evidence is already up in flames," Oberhauser said. "And there is no indication there is any intent to sell it, so just write the ticket and let them go."

"(The) ruling is a strong statement that police cannot treat decriminalized conduct as if it were a serious crime," said Scott Michelman, staff attorney with the ACLU Criminal Law Reform Project. "Heavy-handed police enforcement in the face of minor drug infractions not only wastes public resources but disproportionately affects communities of color."

According to the November 2008 ballot initiative, which was approved by 65 percent of voters, individuals caught with less than an ounce of pot must forfeit the drug and pay a $100 fine.

Sheehan questioned whether rulings like this were what voters had in mind, though.

"I still think marijuana is a gateway drug," he said.

Attorney Peter Nicosia of Tyngsboro admits the SJC decision will "hamstring" law enforcement in determining probable cause by restricting police officers from looking for physical evidence in "plain view."

Attorney Stephen Epstein, spokesman for the Massachusetts Cannabis Reform Coalition and co-author of a brief on the issue submitted to the SJC, said in a press release, "Chief Justice Ireland's decision ... reaffirms the principles of liberty of the patriots."

The SJC ruling comes from an appeal by the Suffolk District Attorney's Office. It involved the case of Benjamin Cruz, who was charged with one count of possession of a class B substance with intent to distribute, possession of a class B substance and school-zone violation.

On June 24, 2009, two officers driving along Sunnyside Street in Jamaica Plain saw a vehicle parked in front of a fire hydrant. When the officers approached the vehicle, they could smell a "faint odor" of burnt marijuana. Police testified that based on "the odor of marijuana and just the way (the people in the car) were acting," both the driver and the passenger (Cruz) were told to exit the vehicle.

Cruz was asked by the officers if he had "anything on his person." He allegedly responded that he had "a little rock for myself."

A Boston Municipal Court judge allowed Cruz's motion to suppress the crack cocaine and his admission to the officers. The district attorney's office appealed and lost.

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