Massachusetts Sensible Marijuana Policy Initiative; Cultivation, Distribution, and Probable Cause Rulings — Commonwealth v. Kenneth J. Palmer, and Commonwealth v. Kiiyan Jackson

A criminal misdemeanor record for marijuana possession can have serious consequences and follow you for years. It will impact your ability to gain employment, receive security clearances, qualify for professional licenses, or obtain student loans. If you have been charged with criminal possession of marijuana, our attorneys at our law firm know how to defend your criminal misdemeanor offense.

In 2008, Massachusetts passed the “Sensible Marijuana Policy Initiative” (“Initiative”), decriminalizing the possession of marijuana of one ounce or less by an someone eighteen years of age or older. Violators would only be subject to a civil offense with a maximum of a one hundred dollar fine and forfeiture of the marijuana. The initiative explicitly affirms that it should not be construed as repealing or modifying all other existing marijuana laws, ordinances, or bylaws.

In 2013, the Supreme Judicial Court of Massachusetts ruled on several cases concerning the impact of the Initiative on the cultivation, distribution, and probable cause areas of Massachusetts law.

In Commonwealth v. Kenneth J. Palmer, Jr., the court held that cultivation of marijuana of less than one ounce was still subject to a criminal offense. In Palmer, officers consensually entered the defendant’s home and found several marijuana plants of less than one ounce. The defendant was charged with cultivating marijuana. The court noted that cultivation and possession of marijuana are listed separately in the General Laws, have separate elements, and were distinct.

The defendant argued that “cultivation” of an ounce or less fell under the Initiative since the purpose of the cultivation was for personal use. The majority of the court, examining the plain meaning of the term, found that cultivation means to grow or tend a plant and has no connection with the purpose for which the plant is grown. The court held that cultivation of one ounce or less was subject to a criminal offense.

The minority concurrence in the case agreed with the majority since the complaint alleged that the defendant grew the marijuana with the intent to distribute, and the facts supported probable cause. However, they disagreed with the majority’s broad interpretation of cultivation and stated that growing less than one ounce for personal use in certain cases might not be a criminal offense.

In the Commonwealth v. Kiiyan Jackson, the court ruled on the Acts affect on distribution charges. In the Kiiyan Jackson, two undercover cops observed the defendant and two other people sharing a marijuana cigarette on a park bench. The officers approached the park bench. They then searched the defendant’s backpack, finding 23 grams of marijuana in several small plastic bags. The defendant was arrested and charged with possession of marijuana with intent to distribute.

Noting the purpose of the Initiative, the court distinguished possession and distribution. A drug dealer “distributes” marijuana whenever he or she serves as a link in the chain between supplier and consumer. The purpose of the statute was to direct law enforcement’s attention and resources on the distribution of drugs and not personal possession. Noting that it is common knowledge that marijuana smokers share a single cigarette and inhale the smoke from the cigarette, stated that such activities were joint possession and social sharing and not distribution. The court held that the Initiative modified the definition of what constitutes distribution, and social sharing of marijuana would no longer be considered distribution.

Probable Cause
Again in Kiiyan Jackson, the court examined the probable cause requirement for searching the defendant’s backpack. A law enforcement officer can do a search on a backpack if it is incidental to a lawful arrest. The court noted that the legality of the search depends on the legality of the arrest. An arrest requires the existence of probable cause by the arresting officer that the individual arrested is committing or has committed a criminal offense. The defendant’s sharing of the marijuana cigarette and possession of less than an ounce of marijuana did not constitute a criminal offense. The court held that possession of a decriminalized amount of marijuana by itself does not create probable cause that a criminal amount of marijuana is present.

If you have been charged with marijuana possession or other related charge, you should speak with an attorney who knows how to defend your case and exhaust every opportunity to prevent a conviction. You should not try to navigate the legal system yourself since the outcome of your case may significantly impact your future.

Local attorney, John C. Manoog III, has extensive experience handling criminal defense cases. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case.

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