Marijuana Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws
Marijuana charges were brought against a couple after a traffic stop in Brookline early Sunday morning. According to the an article in the Milton Patch, Catherine Burns was driving her car with her date, Armond Smikle, as a passenger when the Brookline Police allege that she drove through a stop sign. The officer conducting the stop approached the vehicle and claimed to have smelled a strong odor of alcohol "emanating from Burns." The officer also alleged the usual symptoms - slurred speech and eyes that were bloodshot and "glossy."
The article then states that the officer "went to check their licenses." This is interesting. Why would the officer take Smikle's license? The law does not require that passengers carry identification, or even provide it to the police. Perhaps -- and this may be wishful thinking -- the officer was anticipating that the driver may be arrested and he wanted to know if he could let Smikle take the car and avoid the tow. After all, at that stage, there was no reason to suspect the passenger of a crime. Unfortunately for Smikle however, that changed almost immediately.
While checking the licenses the officer claims to have seen the couple reaching around to the back seat of the car. He also said that Smikle opened the door. All of this could have been innocent activity, but during an early morning stop, the police take no chances. The officer called for back up.
A bad situation got worse when one of the responding officers smelled "fresh marijuana" in the car. This is somewhat surprising. I know that many police officers are trained to recognize the particular scent of marijuana, but in circumstances like these it is amazing that an officer was able to make this detection. They were out on the streets of Brookline in the early morning hours with a woman who was giving off a strong odor of an alcoholic beverage, and an officer was able to individualize the scent of fresh marijuana coming from the same area. If there were large trash bags full the crop in the vehicle this would make more sense. But, the police would find only 2.9 ounces in the center console, which I assume was wrapped in plastic. Stunning. Their drug detection dog performed a follow-up sniff and only came up with a "smoking device." It is unclear how that device escaped the officer's scent-assisted inspection. After all, the pipe must have been used, otherwise the dog would not have focused on it, and as such one would expect an odor even stronger than that of raw marijuana.
The police charged Burns with Operating Under the Influence of Alcohol, and charged them both with Possession of Marijuana with the Intent to Distribute.
Why has the couple been charged with having an intent to distribute marijuana? It is not even a crime to possess an ounce or less, and there was not all that much more than that in the center console. There were no large sums of cash, scales, or packaging materials to support an inference of distribution. Sometimes it appears that, in light of decriminalization, prosecutors have forgotten that it is still a crime to possess more than one ounce. Should that not be the charge? Every amount over an ounce does not signify an intent to distribute. And the pipe indicates that someone in the car most likely intended to smoke it, not sell it.
Moreover, Smikle would be correct in wondering why he has been charged with having anything to do with the marijuana it at all. Where is the evidence that he possessed it? Even if he shared the officer's sense of smell, and thereby knew that there was pot somewhere in the car, that knowledge does not go very far towards proof that he possessed it, much less that he was contemplating any sales.
What about the smoking device? The article described it as "plastic and hollow." Apparently they were not charged with possession of drug paraphernalia. This, by the way, is still a crime in Massachusetts. Will medical marijuana patients violate this law if they chose to use a pipe instead of rolling their own?
Putting aside the OUI charge, how would the case of Burns and Smikle look if either one of them had a valid prescription? For an answer a good place to start would be the proposed medical marijuana regulations, which allow for a medical marijuana patient to possess a sixty-day supply. The proposed regulations suggest that 10 ounces would be a reasonable sixty-day supply. That is, unless a physician determines that a patient needs more. How does 2.9 ounces denote an intent to distribute when 10-plus ounces is a reasonable sixty-day supply?
For one thing, I suppose we must have faith that medical marijuana use is very different from illegal recreational use. Prescription holders are expected to take their doses incrementally over time to address their diagnosed symptoms. Prescription holders are expected not share or sell their medical marijuana. Prescription holders are expected to refrain from driving under the influence of marijuana. And prescription holders are expected to possess only non-criminal ingestion devices.
Those accused of failing to follow medical marijuana rules and those without prescriptions would be well advised to seek experienced criminal defense counsel.