Supreme Judicial Court (February 13, 2012)

The passage of G.L. c. 94C, §32L, the marijuana decriminalization statute, did not repeal the offense of possession of marijuana with intent to distribute, in violation of G.L. c. 94C, § 32C (a), where the amount of marijuana possessed is one ounce or less.  Furthermore, while the sale of any amount of marijuana remains a criminal offense under G.L. c. 94C, § 32L, the act does not limit prosecution under G.L. c. 94C, § 32C (a), exclusively to situations where distribution involves a sale.

The defendant was charged with possession of a class D substance with intent to distribute, as a subsequent offense, G.L. c. 94C, §32C (a) and (b).  The total weight of marijuana found on the defendant was six grams, which is less than one quarter of one ounce.  The defendant moved to suppress the evidence seized by the officer for lack of probable cause and then moved to dismiss the complaint, arguing that the possession of less than one ounce of marijuana, with intent to distribute, is not a crime in light of the enactment of G.L. c. 94C, § 32L, which decriminalized possession of one ounce or less of marijuana.  The District Court judge agreed with the defendant, allowing both the defendant’s motion to suppress and the motion to dismiss, determining that, the arresting officer lacked probable cause to search the defendant and “32L punishes those who sell one ounce or less of marijuana, but does not punish those who distribute it unless the distribution involves the exchange of money or other consideration.”  A single justice of the Supreme Judicial Court granted the Commonwealth leave to file an interlocutory appeal from a District Court judge’s order in the Appeals Court.  The case was transferred to the full Court.

The Court addressed what, if any, effect the passage of G.L. c. 94C, § 32L, the marijuana decriminalization statute, has on the offense of possession of marijuana with intent to distribute under G.L. c. 94C, §32C (a).  Applying principles of statutory construction, the Court concluded that the voters (Ballot Question 2, 2008) intended only to amend the simple possession statute and excluded the separate and distinct crime of possession of any amount of a controlled substance with intent to distribute.  The passage of G.L. c. 94C, § 32L did not repeal the offense of possession of marijuana with intent to distribute, in violation of G.L. c. 94C, §32C (a), where the amount of marijuana is one ounce or less.

In addition, the defendant argued that under G.L. c. 94C, § 32L, there is no penalty for distribution of marijuana if no sale is involved and the amount of marijuana is one ounce or less. 

The third paragraph of G.L. c. 94C, § 32L reads:  

"Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marihuana or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marihuana or tetrahydrocannabinol, or selling, manufacturing or trafficking in marihuana or tetrahydrocannabinol"

The District Court judge found that by using the term "selling," which he found not to be synonymous with the term "distribute," the voters impliedly repealed the possession with intent to distribute statute, G.L. c. 94C, § 32C (a), unless the act of "distribution" involves the transfer of over one ounce of marijuana for money or other consideration, i.e., a sale.

Disagreeing with the lower court, the SJC found that the exemptions listed in G.L. c. 94C, §32L “cannot be construed as exhaustive,” and insisted that the statute be looked at in its entirety.  The next sentence of § 32L states that "[n]othing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol."   The defendant’s argument is inconsistent with the intent expressed by the Legislature that controlled substances are not to be obtained "on the street," but rather should be procured "pursuant to a valid prescription or order, from a practitioner while acting in the course of his professional practice." G.L. c. 94C, § 34.  See Commonwealth v. Cruz, 459 Mass. 459, 473 (2011).  G.L. c. 94C, §32L does not limit prosecution under G.L. c. 94C, § 32C (a), exclusively to situations where distribution involves a sale.

Upon review of the lower court’s decision on the motion to suppress, which found that the arresting officer lacked probable cause to search the defendant, the Court affirmed the order allowing the defendant’s motion to suppress.  However, the Court reversed the order allowing the defendant’s motion to dismiss.

Note:  The Court did not address how far reaching G.L. c. 94C, §32L is on the distribution statute.  “We leave for another day, however, the extent of all acts that are proscribed by the term, “distribute” under § 32C (a) in view of the enactment of G.L. c. 94C, §32L.