In Commonwealth v. Canning,the Supreme Judicial Court of Massachusetts affirmed the allowance of the defendant’s motion to suppress marijuana plants and related evidence seized by the police from his property pursuant to a warrant, because the affidavit in support of the warrant application failed to establish probable cause that the defendant was not authorized to possess or cultivate the marijuana for medical purposes. The police had been investigating the defendant’s apparent cultivation of marijuana after the passage of “the Commonwealth’s new medical marijuana law, which the voters approved  in November, 2012.” The new law exempts from criminal prosecution any patient “who has been diagnosed by a licensed physician as having a debilitating medical condition” (or such patient’s personal caregiver) and who, based on the physician’s written certification, has been authorized to possess or cultivate marijuana for medical purposes. In this case, the affidavit in support of the search warrant application included information (1) that the police had conducted surveillance of the defendant’s property, during which they observed a hose protruding from a window, heard the sound of fans, and detected the odor of fresh marijuana; (2) that the defendant had been seen purchasing a large amount of indoor gardening equipment; and (3) that, according to utility bills, the defendant’s property was consuming much more electricity than were the neighboring properties. Addressing the new law “for the first time,” the SJC “agreed with the motion judge that the police affidavit … demonstrated probable cause that the defendant was cultivating marijuana…, but that, in light of the new law, the affidavit failed to establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime.” The Court explained that “[i]n these circumstances, … 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…. As those cases indicate, although firearms cannot legally be carried without a license to carry, … in the absence of any evidence beyond the ‘unadorned fact,’, that the defendant was carrying a gun, there was no probable cause to suspect a crime was being committed.” In the Court’s view, the firearm license cases and other, analogous license cases “govern the result here…. A search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana …, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime.”

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