Commonwealth v. Canning ( 2015 )

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SJC-11773
COMMONWEALTH vs. JOSIAH H. CANNING.
Barnstable. January 8, 2015. - April 27, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Marijuana. Medicine. Controlled Substances. Search and
Seizure, Warrant, Affidavit, Probable cause. Probable
Cause. Practice, Criminal, Warrant, Affidavit, Motion to
suppress. License.
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.
2
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.
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
1
The measure was placed before the voters at the Statewide
election held November 6, 2012, pursuant to art. 48, The
Initiative, Part V, § 1, amended by art. 81, § 2, of the
Amendments of the Massachusetts Constitution.
3
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 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
submitted by Detective Christopher Kent of the Yarmouth police
2
We acknowledge the amicus briefs submitted by Daniel J.
Chao and Shawn P. Kelly and by the National Organization for the
Reform of Marijuana Laws, in support of the defendant; and the
Massachusetts Chiefs of Police Association, Inc., in support of
the Commonwealth.
3
For reasons that have not been explained, the defendant
was not charged with unlawful cultivation of marijuana. There
does not appear to be any evidence of distribution in this case.
4
department in support of the warrant application recited the
following facts.
During the week of May 19, 2013, Kent met with a
confidential informant, who told Kent that the owner of certain
property in Brewster (property) -- whom Kent later determined
from town records to be the defendant -- and another male were
involved in an indoor "marijuana grow" operation located at the
property.4 On May 21, Kent and another detective observed the
property from a nearby driveway, and noticed that windows of the
addition to the house on the property were obscured by dark
material, saw an aluminum flexible hose protruding out of one of
the windows, and also observed a pickup truck registered to the
defendant in front of the house. On May 24 and 28, Kent and one
or more additional police officers returned to observe the
property; on both occasions, they smelled a strong odor of
"freshly cultivated" marijuana emanating from the house, noticed
the aluminum hose coming out of the window of the addition,
heard the sound of fans, and, using night vision goggles, saw
light emanating from another window. Also on May 28, Kent was
provided information from a police officer in another town that
that officer previously had observed the defendant and another
man purchasing "a large amount of indoor [marijuana] grow
4
The property consists of a house with a small addition to
the rear (connected by a breezeway), a barn in the front yard,
and a large barn in the back yard.
5
materials" from a "hydroponic shop" in Foxborough and then
loading the materials into an automobile registered to the
defendant. On May 29, Kent obtained utility bills relating to
electrical service for the property and neighboring homes on
Main Street in Brewster. These records revealed that for the
previous six months, the average kilowatt usage for three
neighboring homes was 542.3 kilowatt hours (kWh), 23.3 kWh, and
246.6 kWh, respectively; the average kilowatt usage for the
defendant's property for the same time period was 3,116.5 kWh.
Based on his training and experience, Kent was aware that
because marijuana growing operations require different types of
electrical equipment, e.g., "high intensity discharge lamps,
fluorescent lights, fans, reflectors, irrigation and ventilation
equipment such as aluminum flexible hose" to be operating
consistently, high usage of electricity -- a "noticeable
increase in kilowatt usage" -- is to be expected.
When the police executed the search warrant that, based on
the affidavit, a judge in the District Court had issued, the
defendant was present. Seized during the search, among other
items, were seventy marijuana plants, eleven fluorescent
industrial lights, an aluminum flexible hose, a digital scale,
approximately 1.2 pounds of marijuana, and $2,697. The
defendant was placed under arrest.
6
The defendant filed a motion to suppress the seized
evidence, and also to suppress statements he made at the time of
the search and his arrest. A different District Court judge
allowed the motion in a written memorandum of decision. The
judge concluded that the search warrant affidavit "establishe[d]
probable cause that marijuana was being cultivated indoors at
the defendant[']s home," but concluded in substance that in
light of the act, the affidavit failed to establish probable
cause that the cultivation was for more than a sixty-day supply
of marijuana or that the defendant was not authorized to grow
that amount -- and therefore that the cultivation was illegal.
The Commonwealth filed a timely application for leave to file an
interlocutory appeal of the judge’s suppression order and motion
to stay further proceedings in the case. See Mass. R. Crim. P.
15 (a) (2), as appearing in 422 Mass. 1501 (1996). A single
justice of this court allowed the application and reported the
case to the Appeals Court. Thereafter, we allowed the
Commonwealth's motion for direct appellate review.
Discussion. 1. Overview of the act. The voters approved
the act as a ballot measure in 2012, and the act went into
effect on January 1, 2013. St. 2012, c. 369. Section 1 of the
act sets out a statement of purpose:
"The citizens of Massachusetts intend that there
should be no punishment under state law for qualifying
patients, physicians and health care professionals,
personal caregivers for patients, or medical marijuana
7
treatment center agents for the medical use of marijuana,
as defined herein" (emphasis added).
The term "medical use of marijuana" is defined in the act as
follows:
"'Medical use of marijuana' shall mean the acquisition,
cultivation, possession, processing (including development
of related products such as food, tinctures, aerosols,
oils, or ointments), transfer, transportation, sale,
distribution, dispensing, or administration of marijuana,
for the benefit of qualifying patients in the treatment of
debilitating medical conditions, or the symptoms thereof"
(emphasis added).
St. 2012, c. 369, § 2 (I). The substantive provisions of the
act that follow the definitional section first set out the
parameters of protection from State prosecution and penalties
that the act respectively gives to physicians and health care
professionals, qualifying patients and their personal
caregivers, and licensed dispensary agents. See id. at §§ 3–5.5
5
Pertinent to this case is § 4 of St. 2012, c. 369 (act):
"Protection From State Prosecution and Penalties for
Qualifying Patients and Personal Caregivers
"Any person meeting the requirements under this law shall
not be penalized under Massachusetts law in any manner, or
denied any right or privilege, for such actions.
"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
8
See also id. § 6 (A) ("The lawful possession, cultivation,
transfer, transport, distribution, or manufacture of medical
marijuana as authorized by this law shall not result in the
forfeiture or seizure of any property"). These provisions are
followed by a section specifying "limitations" of the act,
including the following: "Nothing in [the act] supersedes
Massachusetts law prohibiting the possession, cultivation,
transport, distribution, or sale of marijuana for nonmedical
purposes." Id. at § 7 (E). Thereafter, the act establishes a
medical marijuana registration or licensing regime that is to be
set up and administered by the Department of Public Health
(department), and that covers nonprofit medical marijuana
treatment centers, medical marijuana center dispensary agents,
and qualifying patients and personal caregivers. See id. at
§§ 9-12. Under the act, it is clear that the 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. See id. at §§ 2 (H), 9 (B), (C).
To that end, the act directed that during the first year the act
was in effect, the department "shall" have registered up to
thirty-five of these centers, with at least one in every county,
and further states that "[i]n the event the [d]epartment
"(b) Presents his or her registration card to any law
enforcement official who questions the patient or caregiver
regarding use of marijuana."
9
determines in a future year that the number of treatment centers
is insufficient to meet patient needs, the [d]epartment shall
have the power to increase or modify the number of registered
treatment centers. See id. at § 9 (C).
Of particular relevance here are the act's provisions
relating to qualifying patients and personal caregivers as well
as to hardship cultivation registrations. A "qualifying
patient" is defined as "a person who has been diagnosed by a
licensed physician as having a debilitating medical condition."
St. 2012, c. 369, § 2 (K). The act requires a qualifying
patient as well as a personal caregiver6 to obtain from the
department a "registration card," which is a personal
identification card issued by the department that serves both to
"verify that a physician has provided a written certification to
the qualifying patient," and to "identify for the [d]epartment
and law enforcement those individuals who are exempt from
Massachusetts criminal and civil penalties for conduct pursuant
to the medical use of marijuana." Id. at § 2 (L). See id. at
§ 12 (describing application requirements for medical marijuana
registration card for qualifying patients and personal
caregivers). A qualifying patient or his or her personal
caregiver is permitted to possess up to a sixty-day supply of
6
A "personal caregiver" is defined to mean "a person who is
at least twenty-one (21) years old who has agreed to assist with
a qualifying patient's medical use of marijuana." St. 2012,
c. 369, § 2 (J).
10
marijuana necessary for the patient's personal medical use. See
id. at § 4 (A). In addition, a qualifying patient whose access
to a licensed medical marijuana treatment center is limited by
finances or an inability to travel to a licensed center may
obtain a "hardship cultivation registration" that allows the
patient or the patient's personal caregiver to cultivate a
sufficient number of marijuana plants to produce and maintain a
sixty-day supply of marijuana. Id. at § 11. The act tasks the
department with defining "the quantity of marijuana that could
reasonably be presumed to be a sixty-day supply for qualifying
patients." Id. at § 8.7
The act provides that the department was to issue
regulations to govern implementation of all the registration
provisions in the act. St. 2012, c. 369, § 13. These
regulations were to be published within 120 days of the act's
effective date, May 1, 2013. The act also provides, however,
that "[u]ntil the approval of final regulations, written
certification by a physician shall have constituted a
7
Under the medical marijuana regulations of the Department
of Public Health (department), discussed in the next paragraph
of the text, the presumptive sixty-day supply of medical
marijuana is defined as ten ounces. See 105 Code Mass. Regs.
§ 725.004 (2013). The sixty-day supply may be greater than ten
ounces for an individual qualifying patient upon the patient's
certifying physician providing written certification and
documentation that a greater supply is necessary. See 105 Code
Mass. Regs. § 725.010(I) (2013). The regulation does not
identify the number of marijuana plants that may be necessary to
grow ten ounces of marijuana.
11
registration card for a qualifying patient." Id. See id. at
§ 2 (N) (definition of "written certification"). Additionally,
until final regulations were in place, "the written
recommendation of a qualifying patient's physician shall have
constituted a limited [i.e., hardship] cultivation
registration." Id. at § 11.8
The department issued its final medical marijuana
regulations on May 8, 2013. 105 Code Mass. Regs. § 725.000
(2013). But of significance to the present case, § 725.015 of
these regulations, which defines the registration requirements
for a qualifying patient, provides that if a qualifying patient
received an initial written certification signed by a physician
before the department was accepting registration applications,
8
It appears that the act uses the terms "certification" and
"recommendation" interchangeably. Reading together the quoted
provisions of St. 2012, c. 369, §§ 13 and 11, relating to what
respectively constitutes a qualifying patient's registration
card and a hardship cultivation registration pending approval of
the department's regulations, we understand them to be referring
to the same document, namely, the "written certification"
defined in St. 2012, c. 369, § 2 (N), that is signed by a
licensed physician and certifies the qualifying patient for use
of medical marijuana. A memorandum appearing on the
department's Web site concerning implementation of the act
confirms this understanding. See "Guidance for Law Enforcement
Regarding the Medical Use of Marijuana," Department of Public
Health, Bureau of Health Care Safety and Quality, Medical Use of
Marijuana Program, at 2 (Updated Apr. 15, 2015) ("Until [the
department] begins to process hardship cultivation applications,
patients or their caregivers may conduct limited cultivation at
their primary residence, but may only grow a sufficient amount
for their sixty day supply as certified by the patient’s
physician").
12
"the initial certification will remain valid until the
application for the registration card is approved or denied by
the [d]epartment."9 The same holds true for limited cultivation
registrations: a qualifying patient who received written
certification from a physician is entitled to continue to use
that written certification as a hardship cultivation
registration "until the application for the hardship cultivation
registration card is approved or denied by the [d]epartment."
105 Code Mass. Regs. § 725.035(L) (2013). The parties do not
dispute that at the time of the search of the property, the
department was not yet approving or denying any applications for
registration, and there were no registered medical marijuana
treatment centers in operation.10 Thus, a qualified physician's
9
There is a separate provision governing the registration
requirements for personal caregivers, 725 Code Mass. Regs.
§ 725.020 (2013), and it also provides that "the initial
certification will remain valid until the application for the
registration card is approved or denied by the [d]epartment."
Id. at § 725.020(C).
10
According to its public announcements, the department has
determined that the registration process should be electronic.
See Program Update -- October 8, 2014, Information for Patients
and Caregivers, Massachusetts Department of Public Health,
http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/
medical-marijuana/patients-and-caregivers.html [http://perma.cc/
7GS7-ADNU]. The department's goal of having the electronic
registration system ready by January, 2014, see 105 Code Mass.
Regs. §§ 725.015(C), 725.020(C), 725.035(L) (setting initial
registration deadline at January 1, 2014), went unrealized. On
October 8, 2014, the department announced that, effective
February 1, 2015, "paper certifications" by physicians would no
longer be valid proxies for proper registration and, as of that
date, every qualifying patient would be required to obtain an
13
written recommendation, undocumented in any database, sufficed
as both a medical marijuana registration card and a limited
medical marijuana cultivation registration.
2. Search warrant and application. "Our inquiry as to the
sufficiency of the search warrant application always begins and
ends with the four corners of the affidavit. . . . The
magistrate considers a question of law: whether the facts
presented in the affidavit and the reasonable inferences
therefrom constitute probable cause. . . . [W]e determine
whether, based on the affidavit in its entirety, 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" (quotations and citations omitted).
Commonwealth v. O'Day, 440 Mass. 296, 297-298 (2003). See
Commonwealth v. Donahue, 430 Mass. 710, 711-712 (2000).
The Commonwealth contends that Kent's affidavit established
probable cause for the search because, as the motion judge
concluded, the affidavit provided probable cause to believe that
the defendant was engaged in cultivating marijuana at the
property, and in the Commonwealth's view all-or-any cultivation
electronic certification from his or her physician and to be
formally and electronically registered with the department. See
Program Update -- October 8, 2014, Information for Patients and
Caregivers, supra.
14
of marijuana remains illegal even under the act. To the extent
that the act permits a limited class of properly licensed or
registered persons to grow marijuana, the argument continues,
the existence of a license or registration is an affirmative
defense for a defendant charged with unlawful cultivation to
raise at trial -– the Commonwealth is not obligated to disprove
such a status in order to conduct a search at the outset of an
investigation.
We disagree. Although as a general matter, marijuana
cultivation is a crime, see G. L. c. 94C, § 32C (a);
Commonwealth v. Palmer, 464 Mass. 773, 777 (2013), and the act
specifies generally that it remains so, see St. 2012, c. 369,
§ 7 (E), the Commonwealth is incorrect that the act has not
effected any change in the statutory and regulatory landscape
relevant to establishing probable cause for a search targeting
such cultivation. What § 7 (E) states is that nothing in the
act "supersedes Massachusetts law prohibiting the . . .
cultivation . . . of marijuana for nonmedical purposes"
(emphasis added). Under the act, cultivation of marijuana is
expressly permitted if a person or entity is properly registered
to do so, and the cultivation does not exceed the amount
necessary to yield a sixty-day supply of medical marijuana. See
St. 2012, c. 369, §§ 9 (B), (D), 11. See also id. at §§ 4-6.
As previously stated, when the search at issue here took place,
15
the act was not fully implemented; no marijuana treatment
centers were operating; and therefore, pursuant to the act's
express provisions, see id. at §§ 11, 13, every person who was
certified as a qualifying patient or the patient's personal
caregiver was authorized to cultivate a sufficient quantity of
marijuana to produce a sixty-day supply -- presumptively ten
ounces.
In these circumstances, as the motion judge suggested, our
cases involving searches for firearms that may be legally
possessed with a license but are illegal in the absence of one
provide an appropriate analytic framework. See Commonwealth v.
Toole, 389 Mass. 159, 163 (1983).11 Accord Commonwealth v.
Nowells, 390 Mass. 621, 627 (1983) (search warrant affidavit did
not establish probable cause for search of defendant's apartment
for illegal firearms where informants only indicated they had
seen guns there: "The ownership or possession of a handgun [or
11
In Toole, we considered a warrantless search of a vehicle
in which police suspected a gun was located: "[I]t has not
[been] shown that, when the search was conducted, the police
reasonably believed that there was a connection between the
vehicle and any criminal activity of the defendant, an essential
element to a finding of probable cause. . . . The empty holster
and ammunition found on the defendant certainly created probable
cause to believe that there was a gun in the cab. But carrying
a .45 caliber revolver is not necessarily a crime. A possible
crime was carrying a gun without a license to carry firearms,
G. L. c. 269, § 10 (a). However, the police did not learn that
the defendant had no firearm identification card until after the
search. They apparently never asked the defendant whether he
had a license to carry a firearm" (citation omitted).
Commonwealth v. Toole, 389 Mass. 159, 163 (1983).
16
a rifle] is not a crime and standing alone creates no probable
cause"). See also Commonwealth v. Couture, 407 Mass. 178, 181,
cert. denied, 498 U.S. 951 (1990); Commonwealth v. Stevens, 361
Mass. 868 (1972). As these cases indicate, although firearms
cannot legally be carried without a license to carry, see G. L.
c. 269, § 10 (a), in the absence of any evidence beyond the
"unadorned fact," Couture, supra, that the defendant was
carrying a gun, there was no probable cause to suspect a crime
was being committed.12 Cf. Commonwealth v. Marra, 12 Mass. App.
Ct. 956, 956-957 (1981) (defendant convicted of storing dynamite
12
Commonwealth v. Gouse, 461 Mass. 787 (2012), a case on
which the Commonwealth relies, is inapposite. In Gouse, the
defendant attacked the victim, his former girl friend, on the
street and left the scene; the investigating police were told by
bystanders as well as the defendant's father that he might be
armed; the police also had information that he had been released
recently from prison, and had been observed armed with a weapon
and dealing "crack" cocaine. Id. at 788, 790-791. On the same
day as the attack of the victim, the defendant was stopped by
the police while driving in a vehicle, removed from the vehicle,
and arrested, and the vehicle was impounded. Id. at 791. The
police thereafter, during a warrantless search of the vehicle,
found a gun in a bag that had been placed in the trunk of the
vehicle. Id. at 791-792. Before trial, the defendant
unsuccessfully moved to suppress evidence of the gun, but not on
the ground that probable cause did not exist to believe he was
not licensed to carry the weapon. See id. at 792-794. (Indeed,
such an argument would have been highly problematic, given that
the defendant at the time, in the court's words, was "a fleeing
felon." See id. at 794. A felon, by definition, may not be
licensed to carry a firearm. See G. L. c. 140, § 131 [d] [i].)
The defendant in Gouse did raise a challenge related to the
license issue, but the challenge concerned the allocation of the
burden of proof between the defendant and the Commonwealth at
trial concerning the existence of a license. See Gouse, supra
at 799-808.
17
without license; conviction reversed where search warrant
authorizing search of defendant's trailer for dynamite was not
based on probable cause: "The observation of a box containing
[dynamite] blasting caps, without more, to indicate that their
storage was unlicensed, does not provide probable cause for
entry into the [defendant's] trailer" where no circumstances set
out in affidavit indicated blasting caps were, or were
reasonably likely to be, unlicensed).
The Commonwealth again misses the mark in seeking to
distinguish these cases and arguing that the existence of a
registration card or written certification, like the existence
of a license, constitutes an affirmative defense that the
defendant himself is obliged to raise in the first instance --
at trial. A license does constitute an affirmative defense at
trial to be raised by the defendant. See G. L. c. 278, § 7.13
See also Commonwealth v. Gouse, 461 Mass. 787, 804-808 (2012);
Couture, 407 Mass. at 181-182; Commonwealth v. Jones, 372 Mass.
403, 405-406 (1977). But this case is not about defenses at
trial; the issue is probable cause to conduct an investigatory
search. At the trial of a case in which the existence or
nonexistence of a license defines whether the charged conduct
was legal or instead a crime, as Couture explains, the defendant
13
General Laws c. 278, § 7, provides: "A defendant in a
criminal prosecution, relying for his justification upon a
license . . . shall prove the same; and until so proved, the
presumption shall be that he is not so authorized."
18
"has every opportunity to respond" by producing the license
authorizing his conduct, and in the absence of the defendant's
doing so, it is not unfair for the jury to presume in accordance
with c. 278, § 7, that the defendant did not have a license.
Couture, supra at 182. Accord Gouse, supra at 806. At the time
of a search, however, such a defendant is in a very different
position: the police arrive, armed with (among other things) a
warrant authorizing the search; the defendant has no right to
object or respond, and indeed may not even be present. Cf.
Couture, supra at 182-183 (contrasting position of defendant at
trial with defendant's position when confronted by police
stopping defendant's truck, removing him from it at gunpoint,
and conducting warrantless search of truck to locate pistol
police suspected would be present). Cf. also Commonwealth v.
Landry, 438 Mass. 206, 211 (2002) (charge of unlawful possession
of hypodermic needle; contrasting defendant's burden to raise
affirmative defense of license at trial with question whether
probable cause existed for unlawful possession at time of
arrest).14
14
The Commonwealth cites five decisions from other States'
courts as ostensibly persuasive authority that a medical
marijuana license is exclusively an affirmative defense, rather
than a legalizing mechanism for program participants. See
Niehaus vs. State, Nos. A-8385, 4798 (Alaska Ct. App. Dec. 10,
2003); People v. Sexton, 296 P.3d 157 (Colo. App. 2012); State
vs. Meharg, No. DC-06-16 (Mont. 21st Jud. Dist. Ct. May 26,
2006); State v. Senna, 194 Vt. 283 (2013); State v. Fry, 168
Wash. 2d 1, 13 (2010). We do not think these cases offer useful
19
The firearms and other license cases just discussed govern
the result here. Beginning with the initial statement of
purpose, the act's provisions make it abundantly clear that its
intent is to protect the lawful operation of the medical
marijuana program established by the legislation from all
aspects of criminal prosecution and punishment, including search
and seizure of property as part of a criminal investigation.
See St. 2012, c. 369, §§ 1, 3-6. The act's medical marijuana
program is structured as a licensing or registration system, and
expressly contemplates the lawful possession, cultivation, and
distribution of marijuana for medical purposes by a number of
different individuals (and certain nonprofit entities), as long
as they are registered to do so. In light of the statutory and
regulatory framework created by the act, a search warrant
affidavit setting out facts that simply establish probable cause
to believe the owner is growing marijuana on the property in
question, without more, is insufficient to establish probable
cause to believe that the suspected cultivation is a crime.
Missing are facts indicating that the person owning or in
guidance here. The courts were considering substantially
different medical marijuana laws, and also very different
factual contexts.
20
control of the property is not or probably not registered to
cultivate the marijuana at issue.15
Detective Kent's affidavit filed in support of the search
warrant in this case did not contain any information at all
addressing whether the defendant was or was not registered as a
qualifying patient or personal caregiver to grow the marijuana
the police reasonably suspected was growing on the property.16
Nor, as the motion judge observed, did it contain other facts or
qualified opinions that might supply an alternate basis to
establish the necessary probable cause to believe the
cultivation was unlawful. See note 15, supra. As such, the
affidavit failed to establish probable cause for the search.17
15
This is not to say that such an affidavit always must
contain facts directly establishing that the person whose
property the police seek to search for evidence of unlawful
marijuana cultivation is or is probably not registered to do so;
reasonable inferences may be drawn that a suspected marijuana
cultivation operation is unlawful from other facts. For
example, except for registered medical marijuana treatment
centers, it remains unlawful to cultivate marijuana for sale.
Facts indicating that a confidential informant recently
purchased marijuana from the owner of the property where the
cultivation operation is suspected to be taking place would
likely supply the requisite probable cause to search that
property for evidence of unlawful cultivation, as would
information that police recently had observed marijuana plants
growing on the property and 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.
16
From start to finish, the affidavit reads as though the
act did not exist.
17
In arguing against this conclusion, the Commonwealth
relies heavily on Commonwealth v. Palmer, 464 Mass. 773, 775-778
21
We disagree with the Commonwealth that the result we reach
imposes an impossible burden on police to search for elusive and
difficult-to-locate information about whether a person suspected
of growing marijuana is registered to do so. Although not
available in 2013 when the search here was conducted, we assume
that with the introduction of the electronic registration
system, see note 10, supra, there is or soon will be available
to law enforcement officers an accessible list of "the persons
issued medical marijuana registration cards" as provided in § 15
of the act.18 Moreover, as we have suggested (see note 15,
supra), information independent of registration status may also
(2013). The reliance is misplaced. In Palmer, we considered
what impact, if any, the decriminalization of possession of one
ounce or less of marijuana, a ballot measure approved by the
voters in 2008, had on G. L. c. 94C, § 32C (a), which defines
the offense of cultivation of marijuana. See Palmer, supra at
775. We concluded that the decriminalization measure did not
affect the cultivation statute, and that cultivation of
marijuana of one ounce or less remained a crime. Id. at 774,
777, 779. But the events giving rise to the criminal charges at
issue in Palmer occurred in 2010, see id. at 774, no issue
concerning the medical marijuana act, passed in 2012, was raised
in Palmer, and the court did not consider the relationship of
the medical marijuana act to § 32C (a) in any respect.
18
Section 15 of the act states:
"The department shall maintain a confidential list of the
persons issued medical marijuana registration cards.
Individual names and other identifying information on the
list shall be exempt from [G. L. c. 66, § 10, the Public
Records Law], and not subject to disclosure, except to
employees of the department . . . and to Massachusetts law
enforcement officials when verifying a card holder's
registration" (emphasis added).
22
be presented to establish probable cause concerning the
suspected unlawful cultivation of marijuana.
Conclusion. The order allowing the defendant's motion to
suppress is affirmed.
So ordered.