Massachusetts Court of Appeals Warns Vigilance When Charging Possession with Intent to Distribute Marijuana

The Massachusetts Court of Appeals recently reaffirmed in Commonwealth v. Stampley, 88 Mass. App. Ct. 1118 (2015) that the possession of even several baggies of marijuana without additional evidence of distribution is not sufficient to convict a defendant of possession with intent to distribute. As background, in 2008 Massachusetts voters passed a ballot decriminalizing the possession of small amounts of marijuana. The law went into effect in 2009. Before 2009, possession of any amount of marijuana was a criminal offense with offenders facing up to 6 months in jail. It should be noted that possessing more than one ounce of marijuana is still a crime, as well as distribution (dealing) of any amount and possessing any amount with the intent to distribute it.

In Commonwealth v. Stampley, a police officer approached two teenagers who were smoking a blunt. The two teens became nervous and fidgety and gave the officer false names. 17 individual, quarter-sized plastic baggies of marijuana were retrieved from the teens. The defendant had nothing else in his possession to indicate that he was involved in the drug trade.

The court in Stampley relied on two previous cases where the Supreme Judicial Court (Massachusetts’s highest court) held that where there is no evidence of the amount of marijuana or evidence that the amount is under an ounce, and there is no other indicia of distribution (such as scales, a pager, cell phones, large amounts of cash) an inference of intent to distribute cannot be supported. Furthermore, a person’s “nervous demeanor” around a police office in this situation is not evidence of distribution but a natural reaction. Therefore no probable cause to issue a criminal complaint existed, meaning the defendants should have never even been charged let alone convicted of the offense. This is because the people of Massachusetts decided that possession of less than an ounce of marijuana is not a crime.

Returning to Stampley, the court’s opinion found it important to quote the prosecution’s narcotics expert’s ludicrous and ultimately faulty comparison of marijuana to ham. Yes, ham. Explaining why only a dealer would have multiple baggies of marijuana in his possession (as compared to simply a marijuana user who would only have one single baggie), this is what the narcotics “expert” said: “If you’re going to make — if you’re going to eat a ham sandwich, you go to the store. You order a ham sandwich, and they give you enough that’s on a ham sandwich. You don’t go to the store and buy, like, a pound of ham to have a ham sandwich if you don’t eat ham all the time, if that makes sense.”

The court wisely shot down the ham comparison and in fact used it against the prosecution, explaining “[I]t is not at all unusual to buy a pound of ham and consume it over several days.” The court concluded that judicial vigilance is especially important in these types of cases where the amount of marijuana is under one-ounce. The court does not want the government charging people with possession of marijuana with intent to distribute as a way of trying to get around the new decriminalization of marijuana law.

In just the past few months, the government has charged several of our clients with possession of marijuana with intent to distribute. We filed motions to dismiss based on Stampley, and the judges on each case dismissed the charges for lack of probable cause. If you were charged with possession, distribution, or possession with intent to distribute any controlled substance, call our office immediately for a free consultation. 617-830-2188.

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