Probable cause for marijuana? Yes. Probable cause for unlawful marijuana? No.

Commonwealth v. Canning, No. SJC-11773 (Mass. Apr. 27, 2015).

Sadly, the court’s decision comes exactly a week too late for the defendant to solemnize it properly.

Sadly, the courts decision comes exactly a week too late for the defendant to solemnize it properly.

An informant told police that defendant Josiah H. Canning was growing marijuana in his house. The police’s investigation turned up facts that all seemed to confirm the informant’s tip: darkened windows at Canning’s house, a smell of marijuana wafting out of it, the house’s impressive rate of electrical usage, and Canning’s recent visit to a “hydroponic shop.” On the strength of this information, a judge issued a search warrant for the house. The police searched it, found over a pound of marijuana, and charged Canning with unlawful distribution. 

The question before the Massachusetts Supreme Judicial Court is whether the evidence thus seized should be suppressed. Answering this question would likely be easywere it not for the Commonwealth’s recently enacted medical marijuana law. 

This medical marijuana law allows cultivation for medical use. And it allows qualifying patients (and those patients’ caregivers) to possess up to a sixty-day supply of pot for medical use. 

The Supreme Judicial Court says that the warrant established probable cause that Canning was cultivating marijuana—but it didn’t establish that he wasn’t a qualifying patient or that he was cultivating more than sixty-day supply of marijuana. Because the warrant didn’t establish probable cause that Canning was cultivating marijuana unlawfully, the evidence against him must be suppressed. (Keep in mind that Massachusetts hasn’t adopted the “good-faith exception” under its state equivalent of the Fourth Amendment.)

The timing of this case may make it unique. While the Commonwealth’s current medical-marijuana regulations require patients to have a registration card, Canning’s house was searched before those regulations went into effect. Before then, all that a qualifying patient needed was a doctor’s signature—and here the warrant didn’t give any reason to think that Canning lacked such a signature. As the Massachusetts high court points out, however, the Commonwealth now keeps a list of registered patients—a list that the police can search to learn whether a suspect has the right to cultivate marijuana lawfully. It seems unlikely, then, that this kind of case will be seen again.