Commonwealth v. Canning

• Decision Date: 27 April 2015
• Docket Number: SJC–11773.
• Parties: COMMONWEALTH v. Josiah H. CANNING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

471 Mass. 341

28 N.E.3d 1156

COMMONWEALTH

v.Josiah H. CANNING.

SJC–11773.

Supreme Judicial Court of Massachusetts, Barnstable.

Submitted Jan. 8, 2015.

Decided April 27, 2015.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

Richard F. Comenzo, Stoughton, for the defendant.

The following submitted briefs for amici curiae: John M. Collins for Massachusetts Chiefs of Police Association, Inc.

Paul R. Rudof, Committee for Public Counsel Services, for Daniel J. Chao & another.

Steven S. Epstein, Georgetown, & Marvin Cable, Northampton, for National Organization for the Reform of Marijuana Law.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

BOTSFORD, J.

We consider here for the first time the Commonwealth's new medical marijuana law, “An Act for the humanitarian medical use of marijuana,” St. 2012, c. 369(act), which the voters approved in November, 2012.¹ The central question presented is whether, with the act in effect, police may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana by establishing probable cause that cultivation is taking place or are required to establish probable cause to believe that the individual was not registered, or licensed, to do so. In accord with cases relating to other types of license regimes, we conclude that, if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance. In this case, a judge in the District Court allowed the defendant's motion to suppress evidence seized by police during a search of the defendant's property conducted pursuant to a warrant in May of 2013, after the act went into effect. We agree with the motion judge that the affidavit filed in support of the search warrant application demonstrated probable cause that the defendant was cultivating marijuana at the property, but that, in light of the act, the affidavit failed to establish probable cause to believe that the defendant was not authorized to do so and therefore was committing a crime. We affirm the order allowing the motion to suppress.²

Background. On May 30, 2013, a three-count complaint issued from the Orleans Division of the District Court Department charging the defendant, Josiah H. Canning, with possession with the intent to distribute marijuana, G.L. c. 94C, § 32C (a ) ; distribution of marijuana, G.L. c. 94C, § 32C (a ) ; and conspiracy to

violate the drug laws, G.L. c. 94C, § 40.³ The complaint's issuance followed a search of the defendant's property in Brewster conducted May 30, 2013, pursuant to a search warrant issued on May 29. The affidavit submitted by Detective Christopher Kent of the Yarmouth police department in support of the warrant application recited the following facts.

During the week of May 19, 2013, Kent met with a confidential informant, who told Kent that the owner of certain property in Brewster (property)—whom Kent later determined from town records to be the defendant—and another male were involved in an indoor “marijuana grow” operation located at the property.⁴ On May 21, Kent and another detective observed the property from a nearby driveway, and noticed that windows of the addition to the house on the property were obscured by dark material, saw an aluminum flexible hose protruding out of one of the windows, and also observed a pickup truck registered to the defendant in front of the house. On May 24 and 28, Kent and one or more additional police officers returned to observe the property; on both occasions, they smelled a strong odor of “freshly cultivated” marijuana emanating from the house, noticed the aluminum hose coming out of the window of the addition, heard the sound of fans, and, using night vision goggles, saw light emanating from another window. Also on May 28, Kent was provided information from a police officer in another town that that officer previously had observed the defendant and another man purchasing “a large amount of indoor [marijuana] grow materials” from a “hydroponic shop” in Foxborough and then loading the materials into an automobile registered to the defendant. On May 29, Kent obtained utility bills relating to electrical service for the property and neighboring homes on Main Street in Brewster. These records revealed that for the previous six months, the average kilowatt usage for three neighboring homes was 542.3 kilowatt hours (kWh), 23.3 kWh, and 246.6 kWh, respectively; the average kilowatt usage for the defendant's property for the same time period was 3,116.5 kWh. Based on his training and experience, Kent was aware that because marijuana growing operations require different types of electrical equipment, e.g., “high intensity

discharge lamps, fluorescent lights, fans, reflectors, irrigation and ventilation equipment such as aluminum flexible hose” to be operating consistently, high usage of electricity—a “noticeable increase in kilowatt usage”—is to be expected.

When the police executed the search warrant that, based on the affidavit, a judge in the District Court had issued, the defendant was present. Seized during the search, among other items, were seventy marijuana plants, eleven fluorescent industrial lights, an aluminum flexible hose, a digital scale, approximately 1.2 pounds of marijuana, and $2,697. The defendant was placed under arrest.

The defendant filed a motion to suppress the seized evidence, and also to suppress statements he made at the time of the search and his arrest. A different District Court judge allowed the motion in a written memorandum of decision. The judge concluded that the search warrant affidavit “establishe[d] probable cause that marijuana was being cultivated indoors at the defendant[']s home,” but concluded in substance that in light of the act, the affidavit failed to establish probable cause that the cultivation was for more than a sixty-day supply of marijuana or that the defendant was not authorized to grow that amount—and therefore that the cultivation was illegal. The Commonwealth filed a timely application for leave to file an interlocutory appeal of the judge's suppression order and motion to stay further proceedings in the case. See Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). A single justice of this court allowed the application and reported the case to the Appeals Court. Thereafter, we allowed the Commonwealth's motion for direct appellate review.

Discussion. 1. Overview of the act. The voters approved the act as a ballot measure in 2012, and the act went into effect on January 1, 2013. St. 2012, c. 369. Section 1 of the act sets out a statement of purpose:

“The citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana, as defined herein” (emphasis added).

The term “medical use of marijuana” is defined in the act as follows:

“ ‘Medical use of marijuana’ shall mean the acquisition, cultivation, possession, processing (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfer, transportation, sale, distribution, dispensing, or administration of marijuana, for the benefit of qualifying patients in the treatment of debilitating medical conditions, or the symptoms thereof” (emphasis added).

St. 2012, c. 369, § 2(I). The substantive provisions of the act that follow the definitional section first set out the parameters of protection from State prosecution and penalties that the act respectively gives to physicians and health care professionals, qualifying patients and their personal caregivers, and licensed dispensary agents. See id. at §§ 3–5.⁵ See also id. § 6(A) (“The lawful possession, cultivation, transfer, transport, distribution, or manufacture of medical marijuana as authorized by this law shall not result in the forfeiture or seizure of any property”). These provisions are followed by a section specifying “limitations” of the act, including the following: “Nothing in [the act] supersedes Massachusetts law prohibiting the possession, cultivation, transport, distribution, or sale of marijuana for nonmedical purposes.” Id. at § 7(E). Thereafter, the act establishes a medical marijuana registration or licensing regime that is to be set up and administered by the Department of Public Health (department), and that covers nonprofit medical marijuana treatment centers, medical marijuana center dispensary agents, and qualifying patients and personal caregivers. See id. at §§ 9–12. Under the act, it is clear that the principal source of medical marijuana is intended to be the nonprofit medical marijuana treatment centers, or dispensaries,

that are to be registered by the department. See id. at §§ 2(H), 9(B), (C). To that end, the act directed that during the first year the act was in effect, the department “shall” have registered up to thirty-five of these centers, with at least one in every county, and further states that “[i]n the event the [d]epartment determines in a future year that the number of treatment centers is insufficient to meet patient needs, the [d]epartment shall have the power to increase or modify the number of registered treatment centers. See id. at § 9(C).

Of particular relevance here are the act's provisions relating to qualifying patients and personal caregivers as well as to hardship cultivation registrations. A “qualifying patient” is defined as “a person who has been diagnosed by a licensed physician as having a debilitating medical condition.” St. 2012, c. 369, § 2(K). The act requires a qualifying patient as well as a personal caregiver⁶ to obtain from the department a ...