Legal pot leaves ‘complex web’ for cops, safety secretary says

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STATE HOUSE – On the eve of marijuana legalization in Massachusetts, Secretary of Public Safety and Security Daniel Bennett on Wednesday sent an eight-page letter to law enforcement leaders around the state to help guide them as a number of once-criminal acts become perfectly legal.

The first part of the state’s new marijuana law kicks in Thursday, when it will become legal for adults at least 21 years old to possess up to 10 ounces of marijuana in their primary residence, possess up to one ounce outside their residence, use marijuana in their residence, grow up to six marijuana plants in their primary residence and gift up to one ounce of marijuana to another adult at least 21 years old.

“Over the course of the coming year, the phasing in of other aspects of the law will create a complex web of different rules for licensed and unlicensed sellers; for juveniles, young adults, and older adults; for those who sell drugs for profit, and for those who give drugs away,” Bennett wrote in the letter. “These changes in the law will require your officers to reassess how they evaluate the presence of reasonable suspicion and probable cause, and, as a result, how they proceed in evaluating potentially criminal conduct where marijuana is at issue.”

Bennett also noted that the Justice Department under President Barack Obama has taken a position that marijuana distribution conducted under a state regulatory system should be a “relatively lower priority for federal enforcement efforts.” Alluding to President-elect Donald Trump’s administration, Bennett wrote, “At this time, it is not yet clear whether the incoming administration will maintain that position, or whether federal enforcement agencies will take a more aggressive stance toward state legalization initiatives.”

In November, more than 1.7 million Massachusetts voters — or about 54 percent — approved marijuana legalization, making Massachusetts the first state on the East Coast to end the century-long prohibition on marijuana use. Buying, using, growing and selling marijuana remains illegal under federal law.

The letter, Bennett wrote, is “not intended to direct how your department elects to prioritize its enforcement efforts, but merely to provide some guidance about what conduct is now legal, and what is illegal under state law.”

Attorney General Maura Healey on Wednesday also sent a letter of guidance to police officials, urging them to read Bennett’s letter and to keep abreast of potential changes in the law as approved by voters.

“That guidance may change in the coming months, as the Legislature has made clear that it is actively considering a variety of revisions to the marijuana legalization law and may delay the opening of marijuana retail stores in Massachusetts,” Healey wrote. “Over the next few months, our office will continue to monitor this rapidly evolving area and will serve as a resource both for our partners in law enforcement and for local cities and towns seeking information about the status and implementation of the law.”

Because adult possession of up to one ounce of marijuana will be legal under state law as of Thursday, it will no longer be appropriate for a police officer to stop, question or frisk a person “based merely on a reasonable belief that a person possesses a small quantity of marijuana,” or confiscate an ounce or less of the plant as had previously been the lawful procedure, Bennett wrote.

For people younger than 21 but at least 18 years old, possession of up to an ounce of marijuana will remain decriminalized and subject to a $100 civil citation. Possession by anyone under 18 will remain subject to a $100 civil citation and the juvenile will still be required to complete a drug awareness program.

Possession of more than one ounce but not more than two ounces of marijuana by an adult at least 21 years old will be a “civil violation subject to a penalty of not more than $100, and by forfeiture of the excess amount of marijuana possessed,” Bennett wrote. Possession of more than one ounce by anyone younger than 21 will remain illegal, and possession of more than two ounces of marijuana by anyone outside their primary residence will remain subject to existing criminal penalties.

Despite legalization, possession of any amount of marijuana with the intent to sell it remains a crime, as does the public consumption of the substance.

Legalization “does not have any effect on the longstanding prohibition against operating a motor vehicle under the influence of marijuana,” Bennett wrote. “This remains illegal.”

Though there is not yet an equivalent to the breathalyzer to test for marijuana impairment in drivers, police officers in Massachusetts will be permitted to collect evidence of recent marijuana use — “such as a partially-burned ‘roach’ in a vehicle ashtray,” Bennett wrote — for use in criminal operating under the influence prosecution.

“Though the new law makes the consumption of marijuana broadly legal for individuals over 21, evidence of recent marijuana consumption will remain admissible in OUI prosecutions, much as evidence that a defendant was seen drinking alcohol in a bar shortly before his motor vehicle stop is admissible in an OUI-Liquor prosecution,” the secretary wrote.

The new law also prohibits having an open container of marijuana in a vehicle “on a public way” regardless of whether the vehicle is moving at the time, so police officers will be allowed to stop drivers who they believe are smoking marijuana in their car. Violators will be subject to a $500 civil penalty.

“Any police officer who observes a driver or passenger smoking marijuana in a motor vehicle may lawfully effectuate a motor vehicle stop or initiate a threshold inquiry in order to identify a party and issue a citation,” Bennett advised the departments. “Marijuana that is in a sealed container, or which is secured in a vehicle’s trunk or locked glove compartment, is not subject to such a civil penalty.”

Starting Thursday, adults will be able to grow up to six marijuana plants in their primary residence, with a cap of 12 total plants in any one home. According to Bennett’s letter, a person who grows more than six plants but not more than 12 will be subject to a $100 fine. A person who cultivates more than 12 plants, though, will be subject to criminal prosecution.

Though selling marijuana will remain illegal, gifting less than one ounce of marijuana to another adult at least 21 years old will become legal on Thursday.

“Attempts to evade this safe harbor with delayed or disguised payments, contemporaneous reciprocal ‘gifts’ of money or items of value, or other sham transactions, will remain a criminal act,” Bennett wrote in his letter.

The secretary, himself a former prosecutor and attorney in private practice, noted that while many marijuana-related activities will be legal in Massachusetts, they remain illegal under federal law. He encouraged Massachusetts police departments to continue to work with agencies at the federal level and in other states to combat drug trafficking.

“State and local law enforcement officers should keep in mind that their primary obligation is to enforce the laws of the Commonwealth … but we also have an obligation to be good neighbors,” Bennett wrote. “To the extent that actors within Massachusetts are engaged in efforts to illegally traffic controlled substances outside our borders and into neighboring states, we should remain vigilant in helping our federal partners, and our brother and sister agencies in other states, to carry out their duties as well. This is no doubt an area that will require new policies as warranted by developments on the ground.”

–Written by Colin A. Young