Supreme Judicial Court of Massachusetts, Middlesex
Heard: December 7, 2017.
received and sworn to in the Framingham Division of the
District Court Department on September 9, 2013. A motion to
dismiss was heard by Douglas W. Stoddart, J.; a pretrial
motion to suppress evidence was heard by Martine Carroll, J.;
and the case was tried before David W. Cunis, J.
Supreme Judicial Court granted an application for direct
Allison Callahan for the defendant.
Elizabeth J. May, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker,
defendant, a medical marijuana patient, was arrested when
police discovered twenty-two marijuana plants growing in his
basement. After a jury trial, he was convicted of unlawful
cultivation of marijuana and possession with intent to
distribute marijuana. On appeal, he argues that (1) the
criminal complaint and the search warrant lacked probable
cause; (2) the jury instructions were in error; (3) the
evidence was insufficient to find the defendant guilty beyond
a reasonable doubt; and (4) the medical marijuana law's
sixty-day supply limit is unconstitutionally vague as
applied. For the reasons stated below, we reverse in part and
affirm in part.
defendant, Joshua A. Richardson, was an unemployed tattoo
artist living in Framingham at the time of his arrest. On
July 2, 2013, he obtained a written certification from a
qualifying physician that approved his use of medical
marijuana to treat a number of medical conditions. The
certification constituted a valid hardship cultivation
registration permitting the defendant to grow up to ten
ounces of marijuana every sixty days for his personal,
medical use. Approximately two months later, on
September 7, 2013, the defendant telephoned 911 to report a
home invasion at his residence. The defendant told the 911
operator that three men had entered his home and
"started beating the hell out of [him]."
Wayne Jordan reported to the defendant's residence within
a few minutes of receiving the dispatch. The defendant told
Wayne that three men had broken into his house, one of whom
had a gun. Approximately twenty officers arrived on scene,
including a number of Framingham police vehicles; State
police vehicles and canine units; a State police helicopter;
and officers from surrounding towns. The police established a
perimeter around the house to search for the home invaders.
Framingham police Sergeant Michael Esposito assembled a team
of officers to enter the defendant's home to determine
whether the suspects were still inside. The team did not find
anyone inside the house. However, Sergeant Esposito observed
a pressure cooker and an autoclave in the kitchen. In a room on
the first floor, Sergeant Esposito noticed "a fan and
blower assembly with a hose feeding it air or taking air
out." He observed a plastic container with aluminum
trays with a brown leafy substance in them, which he
described at trial as "some type of something growing in
those trays." He also found a blow torch and numerous
plastic bags in the room.
Esposito learned from other officers on the team that they
had found marijuana growing in the basement. At that point,
Esposito ordered everyone out of the house and secured the
premises. Once outside, Sergeant Esposito read the defendant
the Miranda rights. The defendant indicated that he would not
speak with police without his attorney present, and Esposito
stopped asking him questions. However, the defendant then
said, unprompted, that the police "only had the right to
go in my house and look for . . . the guys with the gun. I
never gave you permission to look for drugs. This is fucked
up." He indicated that he had a license to grow
marijuana. At that point, the defendant was placed under
arrest and searched. The police found $2, 135 in cash in his
the defendant was arrested, he was taken to the Framingham
police station. He requested to speak with the detectives
investigating his case. Detective Robert Lewis of the
Framingham police department's narcotics unit brought the
defendant into an interview room and read him the Miranda
rights again. The defendant explained to the detective that
he had recently been given a medical marijuana card and was
growing marijuana under that registration, referring to the
doctor's certification issued to him on July 2, 2013. On
the morning of his arrest, he was in the basement pruning his
marijuana plants when he heard a noise coming downstairs. He
saw two individuals, one with a gun. He ran upstairs to the
second-floor bedroom, and noticed a third man coming up the
stairs toward him. He escaped the house and telephoned 911,
using a cellular telephone borrowed from a passing bystander.
to a search warrant, Framingham officers seized twenty-two
plants ranging in height from one foot to three feet tall,
fertilizer, pots, and soil from the basement. According to
Officer Lewis, some of the plants were "in full
bloom." The plants were all located in the
basement, in a tent designed for growing marijuana. The
officers found two large five feet by three feet high
intensity lights hanging over the marijuana plants, a ballast
system,  and other boxes of lights in the basement.
There was a "fertilizer grow kit" in the basement
as well, labeled, "Recipe for Success Starter Kit".
In the room on the first floor that Sergeant Esposito had
previously examined, they found a scale and plastic
bags. In the kitchen, they found fertilizer
advertised for growing marijuana. Detective Lewis also
testified that they found evidence of a tattoo business in
the house, specifically a tattoo gun. However, he did not
find any physical evidence that a home invasion had occurred
or that anyone else had been in the house. Lewis further
testified that the defendant's account of seeing a third
man come up the stairs to the second floor was inconsistent
with the layout of the house.
trial, the defendant's former girl friend, who was dating
and living with him at the time of his arrest, testified for
the Commonwealth. The couple had known each other for
fourteen months and had dated for eleven months when the
defendant was arrested. When asked if the defendant was a
regular marijuana user at the time of his arrest, she
testified, "not that I noticed -- maybe a couple times.
I don't know what he did when I he [sic] was not
around." She stated that he was not working at the time.
She observed him leave the house from time to time but
didn't know where he went. She worked five or six days
per week, and when she came home the defendant was often
sleeping, hidden in the back room on the first floor, or not
home. She acknowledged that the defendant had tattoo
equipment at the house, and that she saw him "do a
couple of tattoos." She also testified that he was
typically paid in cash by friends for giving them tattoos. In
the whole time she dated the defendant, she could recall
approximately six times that he said he was going to do work
at a tattoo parlor. She did not know whether his tattoo
equipment included the pressure cooker or autoclave found in
defendant was charged with unlawful cultivation of marijuana
and possession of marijuana with intent to distribute. Prior
to trial, he moved to dismiss the complaint, arguing that
there was no probable cause to believe he had committed the
crimes charged. The motion was denied. The defendant then
moved to suppress his statements to police and the evidence
seized, arguing that he did not give police permission to
enter his house in the first instance, and that there was no
probable cause to believe that he had committed the crimes
charged. The motion to suppress also was denied. After a jury
trial, the defendant was convicted on both counts. The
defendant appealed, and we granted his application for direct
Laws c. 94C, § 32C (a.), provides:
"Any person who knowingly or intentionally manufactures,
distributes, dispenses or cultivates, or possesses with
intent to manufacture, distribute, dispense or cultivate a
controlled substance in Class D of [§ 31] shall be
imprisoned in a jail or house of correction for not more than
two years or by a fine or not less than [$500] nor more than
[$5, 000], or both such fine and imprisonment."
applicability of this section was altered by the legalization
of medical marijuana in Massachusetts.
Commonwealth's medical marijuana scheme, St. 2012, c. 369
(act), was passed by ballot initiative in 2012. It provides in
"A qualifying patient or a personal caregiver shall not
be subject to arrest or prosecution, or civil penalty, for
the medical use of marijuana provided he or she:
"(a) Possesses no more marijuana than is necessary for
the patient's personal, medical use, not exceeding the
amount necessary for a sixty-day supply; and
"(b) Presents his or her registration card to any law
enforcement official who questions the patient or caregiver
regarding use of marijuana."
St. 2012, c. 369, § 4. However, "[n]othing in [the
act] supersedes Massachusetts law prohibiting the possession,
cultivation, transport, distribution, or sale of marijuana
for nonmedical purposes." St. 2012, c. 369, § 7
(E). The act went into effect on January 1, 2013, and
corresponding regulations became effective May 24, 2013. St.
2012, c. 369, § 16.
the act, qualifying patients may use marijuana for medicinal
purposes, within certain parameters. "[T]he principal
source of medical marijuana is intended to be the nonprofit
medical marijuana treatment centers, or dispensaries, that
are to be registered by [the Department of Public
Health]" (department). Commonwealth v. Canning,
471 Mass. 341, 345-346 (2015). However, the act permits
qualifying patients to obtain a "hardship cultivation
registration" in certain limited
circumstances. St. 2012, c. 369, § 11.
may qualify for a hardship cultivation registration if their
access to a dispensary is "limited by verified financial
hardship, a physical incapacity to access reasonable
transportation, or the lack of a treatment center within a
reasonable distance of the patient's residence." St.
2012, c. 369, § 11. A hardship cultivation registration
allows the qualifying patient or the patient's personal
caregiver to "cultivate a limited number of plants,
sufficient to maintain a [sixty]-day supply of
marijuana." Id. A "sixty-day supply"
is defined by regulation as presumptively ten ounces, unless
a physician certifies that a larger quantity is necessary to
provide the patient with a sixty-day supply. See 105 Code
Mass. Regs. §§ 725.004, 725.010(1) (2017).
hardship cultivation registration was envisioned as "an
approach of last resort." Memorandum from DPH Medical
Marijuana Work Group to Interim Commissioner of Department of
Public Health and Members of Public Health Council,
Informational Briefing on Proposed Regulations at 105 CMR
725.000, at 6 (Apr. 10, 2013). Recognizing the possible
"diversion and security complications" that
accompany home cultivation, the department promulgated
medical marijuana regulations with an intent to
"minimize hardship cultivation by optimizing access
through a variety of [other] approaches." Id.
at 8. However, at the time of the defendant's arrest,
there were no medical marijuana dispensaries open in
Massachusetts, and the department had not yet begun to
process hardship cultivation registration applications. See
Canning, 471 Mass. at 347-348 & n.10. Thus, as a
qualifying medical marijuana patient, the defendant was
permitted to pursue home cultivation under the act. See
Id. at 349 ("when the search at issue here took
place, the act was not fully implemented; no marijuana
treatment centers were operating; and therefore, . . .
every person who was certified as a qualifying
patient . . . was authorized to cultivate a sufficient
quantity of marijuana to produce a sixty-day supply"
[emphasis in original]). Accordingly, the defendant was
protected from prosecution for cultivating marijuana for his
personal, medical use, provided he did not possess marijuana
in excess of the amount necessary for a sixty-day supply. See
St. 2012, c. 369, § 4.
defendant argues that the motion to dismiss and the motion to
suppress were each improperly denied. On appeal, he provides
the same rationale in support of both contentions -- that
there was insufficient probable cause.
Motion to suppress.
determining whether the motion to suppress was properly
denied, we are limited to examining the four corners of the
search warrant affidavit. Canning, 471 Mass. at 348.
We must decide whether "the magistrate had a substantial
basis to conclude that a crime had been committed, . . . and
that the items described in the warrant were related to the
criminal activity and probably in the place to be
searched." Id., quoting Commonwealth v.
O'Day, 440 Mass. 296, 297-298 (2003) .
search warrant affidavit that merely sets out facts
establishing probable cause to believe a homeowner is growing
marijuana on the property to be searched, without more, does
not establish probable cause to believe a crime has been
committed. Canning, 471 Mass. at
352-353. Where the target of the warrant has a
valid hardship cultivation registration, facts indicating
that the person is selling the marijuana or that "in the
opinion of a properly qualified affiant, the number of plants
exceeded the quantity necessary to grow a sixty-day supply of
ten ounces" can supply probable cause. Id. at
352 n.15. The search warrant at issue here established both.
affidavit that Detective Lewis submitted in support of the
search warrant stated explicitly that based on the number of
plants found, the conditions under which they were growing,
and his own experience with the narcotics unit, he believed
that the "marijuana grow" was in excess of the
amount necessary for personal medical use. Moreover, the
affidavit indicated that a suspected "psilocybin
mushroom grow" was found in the house; the
defendant's long-term girl friend did not know why he was
growing marijuana given that he did not smoke marijuana on a
regular basis; and the defendant had said that two men came
directly into his basement, the exact location of his
marijuana grow, and that one had brandished a gun. This was
sufficient to establish probable cause.
defendant argues that the police were required to investigate
how much marijuana constituted a sixty-day supply under his
registration, because "[n]either the statute nor the
[regulations] provide[s] a presumptive limit on how much
marijuana a person may legally prescribe." The defendant
misstates the law. Although there is no absolute limit on how
much medical marijuana can be prescribed, the presumptive
limit is indeed ten ounces in a sixty-day period. See note
14, infra. Accordingly, there was sufficient
probable cause for the search warrant.
Motion to dismiss.
motion to dismiss for lack of probable cause is evaluated
from the four corners of the application for a complaint. See
Commonwealth v. DiBennadetto, 436 Mass. 310, 313
(2002); Commonwealth v. Bell, 83 Mass.App.Ct. 61, 62
(2013). Here, the application included police reports from
Sergeant Esposito and Detective Lewis, which laid out
substantially the same factual basis as the search warrant
affidavit. Accordingly, for the reasons explained above, the
motion to dismiss also was properly denied.