Mark A. Koch

Attorney at Law
1245 Hancock St. Suite 31 quincy, MA 02169 (774)216-9244

Koch Attorney at Law Blog

Not So Fast: Driving with Marijuana in Your Car is Still a Bad Idea
July 11, 2014

Two recent rulings by the Massachusetts Supreme Judicial Court have focused on what police officers can do after smelling unburnt/fresh marijuana coming from a car.  The rulings by Massachusetts' highest State Court essentially eliminate a police officer's claim of smelling unburnt/fresh marijuana as justifiable probable cause for a warantless search of the car.  However before smokers across the State exhale and decide to start driving around with their own personal stash of marijuana, they need to realize that even a small amount of marijuana can be used by police and prosecutors to build a criminal case against them.

Facts of the Cases:
In Overmyer, a driver was involved in a car accident and, after being questioned, turned a "fat bag" of marijuana over to police.  The police still claimed to smell more marijuana in the car, and  "intimated" that a K9 would be on its way.  The driver then admitted having more marijuana in the car and a search was conducted. Comm v. Overmyer, SJC-11481 (2014).  

In Craan, a driver was stopped at a sobriety check point where the officer claimed to smell a "strong odor of unburnt marijuana" coming from the car. Comm v. Craan, SJC-11436 (2014).  The driver admitted to having smoked weed previously and provided the State trooper with a small bag of marijuana.  The trooper then searched the car and found additional marijuana, ecstasy pills, and some rounds of ammo.  

The Rulings:
In each case the SJC rebuked the government's arguments in favor of allowing such searches relying on the smell of unburnt marijuana.  In the 2011 case Cruz, the SJC had already ruled that the smell of burnt marijuana did not amount to probable cause to search a vehicle. Comm v. Cruz, 459 Mass 459, (2011).  In Craan, the court upheld a motion to suppress any evidence obtained by the search of the vehicle.  However in Overmyer, the court sent the case back to district court to determine how fat the "fat bag" was.  If the lower court decides that the "fat bag" (which was turned over to police before the search) was over an ounce of marijuana then the officers would've had probable cause to arrest the driver for criminal possession of more than an ounce of marijuana.

What to Keep in Mind:
A recent article announcing the decisions started by saying "Drive around with marijuana in your car? You're in luck!"  This article is misleading at best and a great example of why you shouldn't rely on legal advice from the internet.  Both rulings were certainly a win for each defendant but this doesn't mean you should plan on driving around with your own personal "fat bag" of marijuana.  Obviously possessing more than an ounce of marijuana is still a criminal offense, but even possessing less than an ounce (while driving) could lead to criminal charges.

The bottom line is that you have a lessened expectation of privacy in an automobile and there are a few ways which law enforcement will potentially be able to circumvent the limits imposed by the SJC.  Operating Under the Influence of marijuana remains a dangerous and illegal activity.  If a police officer decides to place a driver under arrest for OUI (based on allegedly crossing over the lines while driving, coupled a claim of slow speech and glassy red eyes) then the officer can search the car incident to the arrest.  That "fat bag" in your car, as well as any other indicia of using drugs, could be used as evidence against you in court.  The implications of possessing marijuana while driving might change for those with medical marijuana prescriptions but remember that prescription or not, driving while under the influence of drugs is a criminal offense.  Don't help the police build a case against you, never drive stoned and leave the bag (whether skinny or fat) at home.

Written by,

Mark A. Koch, Esq.


Heroin Overdoses in MA: Knowing the Law Can Help Save Lives
February 28, 2014

As reported by the State Police, in the past four months 185 people have died of heroin overdoses in Massachusetts.  As shocking as the number of deaths may seem this statistic doesn't include fatal overdoses in the three largest cities in Massachusetts (Worcester, Springfield, and Boston) which handle their death investigations separate from the State Police.  There have been many recent media reports concerning heroin related deaths in Massachusetts, but very few seem to point out areas of law that have been carved out to help stem this epidemic.  While law enforcement and community leaders are working to prevent these deaths there are ways that everyday citizens can become a part of the solution. 

In 2012, the Massachusetts legislature passed two laws which aimed to reduce heroin related overdose deaths.  The first of such laws has widely been referred to as a "Good Samaritan Law" as it protects those who try to help someone experiencing an overdose.  Under the law a person who seeks medical assistance for someone experiencing a drug-related overdose can not be charged with drug possession or being in the presence of heroin.  While it is important to note that this protection does not apply to charges of drug trafficking or possession with intent to distribute, the law was implemented to encourage drug users and friends of drug users to seek medical help without fearing the consequences of arrest and prosecution.  Most people will never find themselves in this situation, but it is in the community's best interest for everyone to know their rights.  When someone is witnessing an overdose the last thing you want to be on their mind is whether or not they could get in trouble for calling the police or bringing the person suffering from an overdose to a hospital.

​Another step that legislators took towards getting the heroin overdose problem under control concerns Naloxone.  Naloxone is the generic name for a drug which has been shown to reverse the effects of an overdose, bringing the person suffering from a potentially deadly overdose back to life.  Under current Massachusetts law it is legal for a person to obtain a naloxone prescription, possess naloxone, and administer naloxone to someone who appears to be experiencing an opiate related death.  Family members, friends, and other people in a position to assist a person at risk of experiencing an overdose can get access to this life saving drug at various locations throughout the state.  For a list of meetings for family members dealing with a family member suffering from addiction click here.

Educating our youth on the dangers of drug use has always been a priority, but clearly programs like DARE haven't stopped the use of drugs or the accidental overdose deaths.  We must also educate our youth and our communities in general about important areas of the law which are in place for our protection and to protect those who might otherwise die of an overdose.

Written by,
Mark A. Koch, Esq.


6 Takeaways from the MA SJC Ruling on Warrantless Cell Phone Tracking:

Februrary 18, 2014

Yesterday, the Massachusetts Supreme Judicial Court issued a ruling concerning the requirements for authorities to obtain historical cell phone data.  Below I have outlined six points with the hopes of shedding some light on this complex and quickly developing area of law.  The full decision can be found here.

1.) The Basics
In August of 2004, a woman left her workplace and was never seen alive again.  Her body was found in the Charles River the next month.  The police began investigating her former boyfriend as a possible suspect.  Pursuant to the investigation, an assistant district attorney applied for a court order to obtain two weeks of phone records including Cell Site Location Information.  The issue before the SJC centered on whether a warrant should be required for government authorities to obtain the cell phone records of members of the public.  Put differently, this case raised the question of whether, under the Massachusetts Declaration of Rights, we as private cell phone users have a reasonable expectation of privacy in the location information maintained by third party cell phone providers.  

2.) What is “Cell Site Location Information” and How did the SJC Rule?

Cell Site Location Information (“CSLI”) can be broken down into two broad categories: Registration CSLI and Telephone Call CSLI.  Registration CSLI provides the location of the cell phone and is created every seven seconds by a cell phone that is powered on.  Registration CSLI represents an increasingly effective way of historically tracking the location of a cell phone user.  In comparison, Telephone Call CSLI provides the approximate location of the cell phone and is only updated with each outgoing and incoming call.  

The phone records at issue involved Telephone Call CSLI.  The SJC’s majority opinion analogized Telephone Call CSLI to GPS tracing and ruled that a warrant is required in accessing this information (at least when two weeks of tracking is involved).  In opposition, the dissenting opinion argued that Telephone Call CSLI is similar to call log information which can be obtained without a warrant.

3.) Court Order  --> Reasonable Suspicion; Warrant  --> Probable Cause

Under both current state and federal law, there is a way for law enforcement authorities to obtain CSLI from cell phone network providers without a warrant.  In order to get a court order the government must demonstrate specific and articulable facts showing reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation.  The standard for obtaining a warrant requires a showing of probable cause "that a particularly described offense has been, is being, or is about to be committed, and that [the CSLI being sought] will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense." Commonwealth v. Connolly, 454 Mass. 808, 825 (2009).  In plain English: the standard for the court order is less than probable cause.  

4.) Why Rule on an Issue When You Don’t Have To?

Rather than finding its authority in the 4th Amendment of the Federal Constitution, the SJC based its ruling solely on Article 14 of the Massachusetts Declaration of Rights.  The justices held that the request for CSLI constituted a search under Article 14 because the defendant had a reasonable expectation of privacy in the CSLI.  The majority opinion mentions the 4th Amendment sixteen times but avoids issuing a ruling with any federal constitutional implications:

“Although the Supreme Court has not considered the issue whether the government's obtaining CSLI from a cellular service provider constitutes a search in the constitutional sense, a number of lower Federal courts have done so. Applying the third-party doctrine articulated in Miller and Smith, a majority of these courts has ruled that an individual has no reasonable expectation of privacy in the CSLI because it is a third-party business record, and therefore the warrant requirement of the Fourth Amendment does not apply. Some Federal courts, however, have come to the opposite conclusion.  We have no need to wade into these Fourth Amendment waters and focus instead on the third-party doctrine in relation to art. 14.” Commonwealth v. Augustine, SJC 11482 (2014).

5.) Two weeks is Too Long, but Warrantless Acquisition of CSLI Could Be Appropriate for a Shorter Amount of Time.

Not only did the court sidestep an analysis under the 4th Amendment, but they also did not answer key questions: At what point do authorities need to obtain a warrant in order to access CSLI?  For how long of a time period can historical CSLI be requested - through a court order and under a reasonable suspicion standard - before our individual expectation of privacy becomes violated?

“GPS data and historical CSLI are linked at a fundamental level: they both implicate the same constitutionally protected interest--a person's reasonable expectation of privacy--in the same manner--by tracking the person's movements.  Given this intrinsic link, it is likely that the duration of the period for which historical CSLI is sought will be a relevant consideration in the reasonable expectation of privacy calculus-- that there is some period of time for which the Commonwealth may obtain a person's historical CSLI by meeting the standard for a § 2703(d) order alone, because the duration is too brief to implicate the person's reasonable privacy interest. But there is no need to consider at this juncture what the boundaries of such a time period might be in this case because, for all the reasons previously rehearsed concerning the extent and character of cellular telephone use, the two weeks covered by the § 2703(d) order at issue exceeds it: even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant's movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant's expectation of privacy safeguarded by art. 14.” (Emphasis added). Augustine

6.) We Still Need Answers, and We’re Going to Have to Wait.  

This year the Supreme Court will be deciding on whether police have authority to search the cell phone of an individual who has been placed under arrest.  This should provide some context on the Supreme Court’s interpretation of what constitutes a reasonable expectation of privacy concerning cell phone data; however, issues regarding the authority of police and prosecutors to obtain CSLI without a warrant will still be left unaddressed.  Although questions remain, it appears that best practice for MA law enforcement would be to obtain a warrant in every situation where CSLI is requested.  Jake Wark, a spokesman for the Suffolk County District Attorney’s office was quoted in the Boston Globe that “prosecutors routinely obtain a search warrant to get cell phone data, and that no other case would likely be affected by the state court’s ruling.” As this ruling is integrated throughout the law enforcement policies of MA, the people of the Commonwealth will wait to hear what further protections and/or restrictions await cell phone data collection and privacy.

Written by,

Mark A. Koch, Esq.