Police say bylaw another tool in marijuana enforcement

Last month the state Supreme Judicial Court issued a ruling saying the smell of marijuana is not sufficient evidence for police to search a vehicle, since possession of less than an ounce of marijuana is no longer a crime in Massachusetts.

Many law enforcement officials have decried the ruling, but Police Chief Jane Moran recently told WBUR the decision won’t impact Southborough as much as it might other towns, because Southborough bylaws make marijuana possession, as well as consumption, civil offenses.

“The town bylaw has allowed the police to issue citations, as you would if you were driving a motor vehicle and you were speeding,” said Southborough Police Chief Jane Moran. “If you got caught in the town smoking marijuana, say in a town park or in a motor vehicle passing through the town of Southborough, we could issue you a citation and it has attached to it a monetary fine.”

You can read Moran’s complete interview here.

According to the bylaw passed by Town Meeting in 2009, consumption of marijuana in a public place is punishable by a $300 citation. Possession can get you an additional $100 fine.

Statistics released recently by the Southborough Police Department, show drug offenses more than doubled in town last year. In 2010, 59 drug offenses were reported, compared to 29 the previous year.

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John Butler
12 years ago

This chain of stories is quite a muddle.

The ability of the police to issue civil (non-criminal) citations for possession of marijuana was established by the Initiative Petition law that was passed by Massachusetts voters in 2008, not by the Town Bylaw. The State law decriminalized possession of small quantities of marijuana and provided for civil penalties, similar to traffic violations. The Town’s bylaw merely strengthened the Town’s enforcement mechanism in the special case of public consumption, and in the event that those fined failed to pay. But, the data at the time of the passage of the bylaw showed that, in fact, even without the bylaw almost all paid the fines. Lastly, the Town bylaw says nothing about “possession” only about public consumption.

The cause of the increase of “drug offenses” is almost certainly due to the administrative ease of issuing civil citations, compared to previously when small marijuana cases were abandoned, because the criminal process was deemed too burdensome on law enforcement and unduly harsh for the perpetrator. Now it is easy to issue a ticket, so the police do so. However, if “crime” is violation of “criminal” law, then “drug crime” has not increased, since these such tickets are not about criminal law violations.

Lastly the SJC decision will affect Southborough just as much as any other location, but it is not a surprise as the MA police chief’s suggest. Police are authorized to search a vehicle only if they have probable cause of a criminal violation. When, formerly, the smell of marijuana was probable cause of violating the criminal laws of marijuana possession, police could search based on that, and if, as in the case before the SJC, they found evidence of another crime, the results of the search were legal, since the search was legal. Now, since marijuana possession is not a criminal offense, the SJC has said the smell of it is not provide probable cause, any more than failure to signal for a lane change would be probable cause. So a search conducted on that basis is illegal, and the evidence inadmissible. The SJC ruling in effect says, “Yes, when it was decriminalized, it really ceased to be a crime.”

It is true that the Bylaw allows a “criminal complaint” by the Town for public consumption of marijuana, not for possession, but my guess would be that the SJC ruling would make that a very thin justification for a search here, if police here were to attempt it to use it as such.

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