Court Rules on 'Intent to Distribute' Question

April 04, 2012

The Massachusetts Supreme Judicial Court recently ruled that an individual can be criminally charged with attempting to distribute marijuana even when the person is caught having less than an ounce. Voters approved an initiative to decriminalize the possession of small amounts of marijuana. (Violators now face a $100 fine, as opposed to a misdemeanor). However, the court sought to clarify the law's application to people who sell drugs.

According to a report by the Daily Hampshire Gazette, the case originated from an incident in 2010, when a woman called police to report that several people, including her daughter and a man later identified as Shawn Keefner, were smoking marijuana in her front yard.

When they arrived on the scene, the police searched Keefner and found three individually wrapped plastic bags of marijuana, each weighing about 2 grams, but collectively under 1 ounce. Officers also reported that Keefner had $100 in cash and a cellphone with a message that had been sent about 20 minutes earlier from someone looking to buy $20 worth of marijuana.

Keefner was arrested and charged with possession with intent to distribute marijuana, a felony punishable by 1 year in jail and a $500 fine. He appealed his conviction, arguing that the change in the possession law precluded him from being charged with a felony offense, and that he should be subject to the $100 civil penalty.

Writing for the court, Chief Justice Roderick Ireland explained that the voter initiative only amended the simple possession statute, not the possession with intent to distribute statute. He went on to conclude that voters only intended to change how small amounts of marijuana were punished, not the separate crime of possessing drugs with the intent to distribute.

Because of this, the court concluded that he could be charged. However, the court found that the police had conducted an unlawful search and granted Keefner's motion to suppress the evidence collected during the search.

The court did not rule on whether distribution charges could be leveled against friends sharing a marijuana cigarette, even though it conceded that a literal interpretation of the statute could allow each person who passes a cigarette along to be charged with a felony, even though the amount of marijuana involved would only merit a $100 fine.

Article provided by LoConto, Burke & Madaio, P.C.
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