Ruling won’t alter
city police policy
STEVE LeBLANC
Associated Press
BOSTON (AP) — The state’s highest court has ruled that a person can still be criminally charged with attempting to distribute marijuana even when the amount of the drug discovered is less than an ounce.
But in Westfield police have, since the ballot initiative which decriminalized simple possession of small amounts of marijuana was approved by voters, continued to charge suspects found with sales paraphernalia, no matter how much marijuana was seized.
For example, an eighth grader found about a week ago at South Middle School with three bags of pot concealed in his shoe was charged with possession of marijuana with intent to distribute.
Capt. Michael McCabe, operational commander of the Westfield police, said Tuesday “you’ve never had to have an ounce” of marijuana to be charged with distribution by city police.
Westfield police have, since the ballot initiative passed, continued to charge suspects found to be in possession of paraphernalia such as scales, a supply of plastic bags or a marijuana grinder with distribution of marijuana. Those found with multiple packages of the weed have also been charged with distribution, no matter what the total amount was found to be.
“It’s (the ruling) not going to have any appreciable effect on us” McCabe said.
But the court left open the question of whether those criminal charges can also be leveled against people sharing a marijuana cigarette.
The court’s decision was intended to help clarify a 2008 voter-approved ballot question that decriminalized possession of small amounts of pot. Someone caught with less than an ounce of marijuana now faces a $100 fine instead of jail time.
In two rulings issued Monday, the Massachusetts Supreme Judicial Court said the 2008 law doesn’t shield those charged with possession with intent to distribute marijuana.
The first case occurred in 2010, when a woman called the Great Barrington police to report that several people, including her daughter and a man later identified by police as Shawn Keefner, were smoking marijuana in her front yard.
An officer searched Keefner and found three individually wrapped plastic bags of marijuana, each weighing about 2 grams, a net weight under 1 ounce, police said. Officers also found $100 in cash and a cellphone with a message that had been sent about 20 minutes earlier from someone looking to buy $20 worth of marijuana, they said.
Keefner was arrested and appealed.
The court, in its ruling, concluded that the 2008 law “did not repeal the offense of possession of marijuana with intent to distribute.”
Supreme Judicial Court Chief Justice Roderick Ireland, who authored Monday’s decision, pointed to the fact that the vote on the ballot question specifically amended one part of the state’s drug laws while leaving untouched other parts of the law.
“By creating specific exemptions in the simple possession statute, but not in the possession with intent to distribute statute, we conclude that the voters intended only to amend the simple possession statute and intended to exclude from the act’s reach the separate and distinct crime of possession … with intent to distribute,” he wrote.
Keefner’s lawyer, David Skeels, said he conceded that the 2008 law didn’t apply to those who were attempting to sell or distribute less than an ounce of marijuana. But he argued that the law intended to shield from criminal charges people who were merely sharing a marijuana cigarette.
Skeels said the high court judges ultimately decided to leave that debate for another day.
“They left open the question of whether passing around a marijuana cigarette is a crime assuming it’s less than an ounce,” Skeels said, pointing to a footnote to the ruling.
In that footnote, the justices said that “a cursory reading of this opinion might suggest that … the Commonwealth may criminally charge each person who passed the marijuana cigarette to another with distribution of marijuana or possession with intent to distribute, even though such individuals could not be charged criminally with possession of marijuana, because the amount of marijuana each possessed was one ounce or less.”
The justices conceded that such an interpretation could mean that the 2008 law, meant to ease marijuana penalties, might have the “ironic consequence” of allowing the state to charge people who share marijuana cigarettes with the more serious crime of possession with intent to distribute, with a maximum sentence of two years in jail.
But the justice also said that they deliberately decided to “leave for another day” a final decision on that question.
In a separate part of the ruling, the justices concluded that the police had conducted an unlawful search of Keefner and granted his request to suppress the evidence collected during the search.
The court reiterated its ruling on the question of whether a person could be charged with possession with intent to distribute less than an ounce of marijuana in a second case, involving a man arrested in Natick in 2009.
Police said they discovered rolling papers, $530 in cash and 14 individually wrapped plastic baggies containing marijuana in the man’s backpack.
Since all the marijuana weighed less than an ounce, the man argued that the crime with which he was charged “is no longer a criminal offense.”
The court disagreed.
Carl E. Hartdegen contributed to this report.
