May 5, 2015 – by Liam Scully
With its recent decision the Massachusetts Supreme Judicial Court confirmed that the appearance of breaking the law is not cause enough to warrant a search of an individual or their property. In Commonwealth vs. Josiah H. Canning the defendant was charged with possession with intent to distribute marijuana. Police received a warrant to search his house in May of 2013 where they found what they expected to find: marijuana plants and the equipment to grow them. The officers had good reason to believe that the defendant was growing marijuana in his house, mostly because he was. There was just one problem, a few months before the medical marijuana law went into effect in Massachusetts.
The Act for the humanitarian medical use of marijuana, allows, among other things, for people to use marijuana and keep a 60 day supply if they have written certification from a physician. It also allows for people to grow marijuana under certain circumstances. Qualified people will have a “registration card” issued by the state. In May of 2013 however, that department had not been set up and a doctor’s note was considered a registration card. So with a doctor’s note an individual was allowed to grow a certain amount of marijuana. Which brings us to why the search warrant should not have been issued: the police never took into account that Mr. Canning may have been allowed to grow marijuana.
This is similar to other areas, such as owning a gun, fishing in certain places, or even practicing medicine or law. You can only do it if you have the proper license or permit. Even if an activity is illegal for the vast majority of people and police have good reason to believe that you are involved in such an activity, that should not be enough for them to get a warrant and search you and possibly charge you. Even if you clear it up in trial and show you are allowed to do whatever the activity is, you still had to go to trial. So before police go searching your house they need to look at all possibilities. After all, that lawbreaker may just be following the law after all.