The Massachusetts Supreme Judicial Court (SJC) held in Commonwealth v. Keefner that even though simple possession of marijuana has been decriminalized in Massachusetts, possession of any amount, with the intent to distribute it, remains a crime.
The state's decriminalization of marijuana law was approved by voters in a November 2008 referendum. The law changed the status of the possession of one ounce or less of marijuana from a criminal offense to a civil offense, with a penalty of $100 and forfeiture of the marijuana. If the offender is under eighteen years of age, the youthful offender will have to pay the fine, which may be increased to $1,000, and attend a drug abuse counseling course that must be completed with one year of the offense.
The SJC held that voters intended the decriminalization of marijuana law to exclude from the law's reach "the separate and distinct crime of possession (of any amount of a controlled substance) with intent to distribute." The SJC declined to define the extent of all acts that fall under "distribute" but did explain that prosecution is not limited solely to situations involving a sale of marijuana.
The SJC also held that police officers are not permitted to conduct warrantless, non-consensual searches on individuals they have probable cause to believe possesses marijuana in order to prove the civil offense has occurred.
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