Prosecution for Possession of Marijuana With Intent to Distribute In Quantities Less Than Ounce Upheld: Commonwealth v. Keefner (SJC-11019) (Slip Opinion)
Summary: The SJC today held that a defendant may be charged with possession with intent to distribute marijuana, in violation G.L. c. 94C, section 32C, even if the amount seized was under an ounce. The issue here was what effect did the passage of G.L. c. 94C, Section 32L (decriminalizing possession of less than an ounce) have on the offense of possession with intent to distribute. The SJC, using rules of statutory construction, determined that (1) the passage of the 32L did not repeal the offense of possession of intent to distribute even if the amount is less than ounce and (2) prosecution under the “intent to distribute” statute is not limited solely to situations where the distribution involves a sale. Notably, the Court expressly reserved the issue of what constitutes “distribution” for determination later. However, the SJC went to affirm a motion to suppress all fruits of the subsequent search and held that knowledge of a defendant’s use of marijuana, without additional facts specifically concerning an intent to distribute, does not give rise to support probable cause to search the defendant.
Discussion. The SJC reasoned that both statutes are mutually independent of each other and reiterated that possession of marijuana in any amount remains illegal–“decriminalization is not synonymous with legalization.” It reasoned that such construction is consistent with the intent expressed by the Legislature and the voters. In support thereof, he SJC specifically pointed out to the following language in G.L. c. 94C, Section 32L: “[n]othing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.”
Practice Pointer: Due to the relative infancy of the “One-Ounce Rule,” it is difficult to determine how that rule impacts other areas of the law. Based on affirming the motion to suppress, however, the Court is consistent in holding that the use or smell of marijuana will not give rise to probable cause to search a defendant. This will be the case even if the smell of marijuana is coupled with another civil infraction, such as a traffic violation. For example, in Commonwealth v. Cruz, the SJC held that, in a valid traffic stop, the odor of burnt marijuana, by itself, does not give rise to reasonable suspicion or probable cause sufficient to justify an exit order. 459 Mass. 459 (2011).