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Commonwealth v. Canning

Supreme Judicial Court of Massachusetts, Barnstable

April 27, 2015

Commonwealth
v.
Josiah H. Canning

Argued January 8, 2015.

Complaint received and sworn to in the Orleans Division of the District Court Department on May 30, 2013.

A pretrial motion to suppress evidence was heard by Brian R. Merrick, J.

An application for leave to prosecute an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

Richard F. Comenzo for the defendant.

The following submitted briefs for amici curiae:

John M. Collins for Massachusetts Chiefs of Police Association, Inc.

Page 342

Paul R. Rudof, Committee for Public Counsel Services, for Daniel J. Chao & another.

Steven S. Epstein & Marvin Cable for National Organization for the Reform of Marijuana Law.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[28 N.E.3d 1158] Botsford, J.

We consider here for the first time the Commonwealth's new medical marijuana law, " An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (act), which the voters approved in November, 2012.[1] The central question presented is whether, with the act in effect, police may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana by establishing probable cause that cultivation is taking place or are required to establish probable cause to believe that the individual was not registered, or licensed, to do so. In accord with cases relating to other types of license regimes, we conclude that, if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance. In this case, a judge in the District Court allowed the defendant's motion to suppress evidence seized by police during a search of the defendant's property conducted pursuant to a warrant in May of 2013, after the act went into effect. We agree with the motion judge that the affidavit filed in support of the search warrant application demonstrated probable cause that the defendant was cultivating marijuana at the property, but that, in light of the act, the affidavit failed to establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime. We affirm the order allowing the motion to suppress.[2]

Background.

On May 30, 2013, a three-count complaint issued from the Orleans Division of the District Court Department charging the defendant, Josiah H. Canning, with possession with the intent to distribute marijuana, G. L. c. 94C, § 32C ( a ); distribution of marijuana, G. L. c. 94C, § 32C ( a ); and conspiracy to

Page 343

violate the drug laws, G. L. c. 94C, § 40.[3] The complaint's issuance followed a search of the defendant's property in Brewster conducted May 30, 2013, pursuant to a search warrant issued on May 29. The affidavit [28 N.E.3d 1159] submitted by Detective Christopher Kent of the Yarmouth police ...


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