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SJC rules distributing small amounts of marijuana is a crime

But court does not define distribution

The state’s highest court ruled yesterday that suspects can be charged with intent to distribute marijuana even when caught trying to hand over less than an ounce of the drug, despite decriminalization of simple possession of small amounts.

The Supreme Judicial Court said a 2008 referendum that made possessing less than an ounce a civil infraction rather than a criminal offense had no influence on a separate law making it a crime to possess marijuana with intent to distribute.

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“The crime of possession with intent to distribute applies to any amount of marijuana,’’ Chief Justice Roderick Ireland wrote in the court’s opinion.

The court acknowledged that its ruling leaves open the question of the actual definition of distributing marijuana. The court would not say, for instance, whether simply sharing the substance without receiving money constitutes distribution. The court said it would leave that question, posed by the defendant, “for another day.’’

The court stated its opinion was based on the case at hand, and that voters in the referendum decided solely on decriminalization of possessing an ounce or less of the marijuana. Justices said the change in that law should not imply a change in the distribution law as well.

“The crimes of simple possession of marijuana and possession of marijuana with intent to distribute are listed separately . . . and are distinct,’’ Ireland wrote. “Voters did not make any changes . . . concerning the crime of possession of marijuana with intent to distribute. Such an omission carries significance.’’

Berkshire District Attorney David F. Capeless, whose office prosecuted the case, said the court has made clear it is a crime to deal marijuana, regardless of the amount.

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“I hope it sends a message that the court, and the public, are still very serious about the idea of drug dealing and that it’s not something that anyone wants to tolerate,’’ he said, adding that authorities are seeing an increase in street-level marijuana dealing and use since the referendum was passed.

The case centered on the arrest in Great Barrington on May 23, 2010, of Shawn M. Keefner. Keefner and several friends were at the home of one of the friends, whose mother reported to police the group was smoking marijuana on the front porch.

Police recognized Keefner from a previous arrest for possessing marijuana, and searched him. They found three bags of marijuana weighing a total of six grams, as well as a cellphone and $98 in cash.

A search of the cellphone showed that Keefner had received a text message from someone looking to buy marijuana about 20 minutes before police arrived. He was charged with intent to distribute marijuana.

A District Court judge in the Berkshires ruled that the case should be dismissed because the amount of marijuana was less than an ounce. Prosecutors appealed.

The high court reversed the lower court’s decision. However, while ruling that distributing the drug constitutes a crime, the court decided that Keefner had been improperly searched. As a result, the drugs, cellphone, and money were suppressed from the case, a ruling that doomed the case against Keefner.

Capeless said it appears he will not be able to move forward with the case. But, he said, the ruling was pivotal because it addressed the larger question of whether distribution of small amounts of marijuana is still criminal, saying other, similar cases linger in the courts.

Advocates for legal use of marijuana said yesterday’s ruling was a victory in that it affirmed that police had no right to search Keefner for an amount of marijuana not considered criminal.

Steven Epstein, a lawyer and spokesman for the Massachusetts Cannabis Reform Coalition, said advocates recognize the distinction between possessing and distributing marijuana.

“The ballot question did not legalize the distribution of marijuana,’’ he said.

But David Skeels, a court-appointed lawyer for Keefner, said he had hoped the court would strike down the concept that sharing marijuana constitutes distribution. “We had argued that it’s no longer a crime for people to pass marijuana cigarettes along at a party,’’ he said.

Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter @MiltonValencia.

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