BURNT MARIJUANA ODOR LEADS TO SEIZURE OF GUN. WAS IT CONSTITUTIONAL?

by | Sep 24, 2014 | Constitutional Rights, Drugs, Search & Seizure |

On September 22, 2014, Boston Police arrested Ra’Quan Baker-Parham for unlawful possession of a firearm.  According to a post on the BPDNEWS website, officers observed a group of 5 people sitting in a circle on the grass of the Boston Common.  The officers smelled a “strong odor” of burnt marijuana.  Officers approached the group and allege the defendant attempted to conceal “an item” under his right leg.  Police pat-frisked the defendant and a loaded gun was seized from the defendant’s left breast pocket.

Based on the allegations in the BPDNEWS post, an experienced Massachusetts Criminal Defense Lawyer will have a lot to work with in defending this case.  Since the decriminalization of less than one ounce of marijuana in 2009, Massachusetts’s courts have been clear in establishing that the smell of burnt marijuana alone does not provide probable cause of criminal activity.  While the smell of burnt marijuana may have justified the officer’s inquiry, it does not provide a reason to pat-frisk or search the defendant.  However, the constitutional inquiry does not end here.

The police allege they observe the defendant attempt to conceal “an item” under his right leg.  A motion to suppress the gun in this case will likely hinge on this alleged attempt to conceal “an item.”  The prosecutor will argue the officer’s had a fear for their safety and therefore, the pat-frisk was justified.  A top Boston, MA Firearm Defense Attorney will argue the defendant’s actions did not rise to the level where police reasonably believed him to be armed and dangerous.  Therefore, the search was unconstitutional.

The stakes are high for the defendant in this case.  A conviction for Illegal possession of a firearm in Massachusetts carries mandatory minimum jail or state prison sentences.

MASSACHUSETTS FIREARM DEFENSE LAWYER

Boston, MA Criminal Defense Attorney Jeff Miller has successfully represented clients charged with unlawful possession of firearms.  CLICK HERE to read about some of the firearm cases that Attorney Miller has handled.  If you have been charged with unlawful possession of a loaded firearm in Massachusetts or any other firearm offense, contact Jeff Miller at 617-482-5799 to schedule a confidential appointment.