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SJC issues rulings to clarify marijuana law

The state’s highest court Friday stepped into the gray legal area created in 2008 when voters decriminalized the possession of one ounce of marijuana, releasing four rulings aimed at clarifying where police and the public can draw the line between a crime and a civil offense.

In three of the rulings, the Supreme Judicial Court concluded that prosecutions linked to the public consumption of small amounts of marijuana cannot stand because the defendants came to the attention of police due to civil infractions — which are punishable by fines — and not by crimes punished by imprisonment.

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In the fourth ruling, the SJC decided that a Western Massachusetts man who had outfitted his closet to grow marijuana could face criminal charges because cultivating cannabis is still illegal, even though Adams police found less than an ounce of marijuana when they raided his home.

Cape and Islands District Attorney Michael O’Keefe, noting that the SJC threw out two illegal gun possession cases today, said he disagreed with the court. But, he said, the responsibility lies not with the judges, but with the electorate who approved the measure. O’Keefe is president of the Massachusetts District Attorneys Association.

“The public seems to have spoken on this. They seem to be saying that it’s OK to have this encouragement to dope smoking,’’ said O’Keefe, who opposed the 2008 proposal, as did other prosecutors. “They can live with the consequences.’’

But Matthew R. Segal, legal director of the American Civil Liberties Union of Massachusetts, said the SJC only recognized a social reality and, at the same time, protected the rights of citizens to be free of intrusive searches by police.

“This just basically ensures that the conduct that is already happening all over Massachusetts, and most other states — sharing marijuana — won’t land you in jail and won’t give police the license’’ to search possessions, he said. The organization urged the SJC to reach the conclusions that it did.

At the heart of one of the rulings was the Hempfest held annually at Boston Common, where many attendees publicly smoke marijuana and often — as was the case in 2010 with defendant Kityan Jackson — share a joint with friends and acquaintances. Jackson was spotted by police sharing a joint, which led police to search his backpack without a warrant, where they found 10 small bags of marijuana weighing 23.5 grams, or less than an ounce. Jackson was prosecuted for possession of marijuana with intent to distribute. But the SJC said that charge must be thrown out because Jackson was targeted by police after they spotted him committing a civil infraction, sharing a joint, not a crime.

“We now decide that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution,’’ Justice Fernande R.V. Duffly wrote for the unanimous court.

The SJC also threw out illegal gun possession charges lodged against Daniel Clinton and Alyson Tayetto after Boston police stopped the car Tayetto was driving in Dorchester with one headlight out in 2009 and discovered that both smelled like they had been smoking marijuana and that Tayetto possessed a small amount of marijuana. Duffly also authored this unanimous ruling, which concluded that the gun found in the glove box of the car was discovered only after police made an unauthorized search of the vehicle based on Tayetto’s admission that she possessed a small amount of marijuana.

“Absent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband,’’ Duffly wrote.

The SJC also rebuffed Suffolk District Attorney Daniel F. Conley’s office on another key issue raised during the appeal. Prosecutors wanted the SJC to make it clear that police can search a car to make sure its operator doesn’t drive under the influence of marijuana, which remains a criminal offense akin to drunken driving.

The SJC said it would not use its power to grant police that “community caretaker’’ authority, in part because none of the evidence against Tayetto suggested she was incapable of driving and also because prosecutors had not raised the issue in the lower courts.

The SJC also threw out a gun case against Antonio L. Pacheco, who was in a car smoking marijuana with friends when a state trooper stopped them for violating the evening curfew at Heritage State Park in Lynn. The trooper found a small bag of marijuana inside the cab of the car, and then opened the trunk, where he found a gun in a backpack.

Pacheco allegedly admitted the weapon was his, but the SJC said those statements must be thrown out, too, because they came after he was stopped for using marijuana.

But the court also found decriminalization has its limits. Justices ruled that Kenneth J. Palmer Jr. could still be prosecuted for cultivating the marijuana Adams police found growing in a closet in his home in 2010 — even though the seized marijuana weighed less than an ounce.

While only an ounce was recovered by police, officers also found he had outfitted the closet with lights, a thermometer, and empty plastic bags.

Justice Margot Botsford wrote that “the word ‘cultivate’ refers to the process of growing a plant or crop, not the purpose for which the plant or crop is grown. Accordingly, we hold that the cultivation of one ounce or less of marijuana, regardless of its intended use, is a criminal offense.’’

John R. Ellement can be reached at ellement@globe. com.
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