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Police Denied Search Warrant Because Suspect Protected by Medical Marijuana StatuteThe recent April 27th ruling of the Supreme Judicial Court enforced protection of medical marijuana cultivators in Massachusetts. In Yarmouth, the local police were unable to obtain a warrant to search a suspected marijuana growing site because they could not prove the individual had not properly registered under the 2012 medical marijuana statute.

On May 30, 2013, the person of interests was charged with the intent to distribute marijuana. A warrant was issued on May 29 and after the person’s property was searched on May 30, he was charged with the complaints. But the evidence collected against the defendant was suppressed in the District Court and now this decision to suppress the evidence was upheld by this Supreme Judicial Court ruling because probable cause for criminal activity was not established.

During the case, Commonwealth v. Josiah H. Canning, the Commonwealth argued that because the defendant showed the existence of a license or registration to cultivate marijuana, he had an affirmative defense which if this case was brought to trial would have mitigated any of the legal consequences of cultivating marijuana. Because the defendant has this defense, the Commonwealth believed it is not obligated to disprove this status before beginning an investigation.

But the Supreme Judicial Court disagreed with the Commonwealth. They restated the District Court judgement that suppressed the Commonwealth’s request for a search warrant because they lacked the adequate probable cause needed before the police are able to ask for the warrant.

Justice Margot Botsford wrote in the ruling that in Detective Kent’s affidavit, they police did not indicate whether the defendant was or was not registered to grow the marijuana that the police suspected was on the property either as a patient or as a personal caregiver.

The court unanimously agreed that the affidavit did not have anything else included that would establish probable cause for the search. There were no facts or opinions in the affidavit that could establish whether the cultivation of marijuana on the property was lawful or unlawful. Therefore, probably cause was not warranted and the court denied the police the right to search the premises.

What this Ruling Means

If police suspect that a property is illegally cultivating marijuana, they will be required to present information that is sufficient to establish probable cause that demonstrates the individual in question is not properly registered under the Commonwealth’s new medical marijuana law and that the cultivation of this marijuana is indeed illegal.

Arthur Hardy-Doubleday

Author Arthur Hardy-Doubleday

Arthur Hardy-Doubleday practices law in Cambridge and Martha's Vineyard Massachusetts. He works in the areas of Real Estate, Personal Injury, and Consumer Protection Law. When not practicing law, Arthur enjoys sailing, hanging out with friends on the beach, and waking his dog "Ridiculous."

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