NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11773

COMMONWEALTH vs. JOSIAH H. CANNING.

Barnstable. January 8, 2015. - April 27, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Marijuana. Medicine. Controlled Substances. Search and 

Seizure, Warrant, Affidavit, Probable cause. Probable 

Cause. Practice, Criminal, Warrant, Affidavit, Motion to 

suppress. License.

Complaint received and sworn to in the Orleans Division of 

the District Court Department on May 30, 2013. 

A pretrial motion to suppress evidence was heard by Brian 

R. Merrick, J. 

An application for leave to prosecute an interlocutory 

appeal was allowed by Gants, J., in the Supreme Judicial Court 

for the county of Suffolk, and the case was reported by him to 

the Appeals Court. The Supreme Judicial Court granted an 

application for direct appellate review. 

Elizabeth A. Sweeney, Assistant District Attorney, for the 

Commonwealth.

Richard F. Comenzo for the defendant.

The following submitted briefs for amici curiae:

John M. Collins for Massachusetts Chiefs of Police 

Association, Inc.
2

Paul R. Rudof, Committee for Public Counsel Services, for 

Daniel J. Chao & another.

Steven S. Epstein & Marvin Cable for National Organization 

for the Reform of Marijuana Law.

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 

 

1 The measure was placed before the voters at the Statewide 

election held November 6, 2012, pursuant to art. 48, The 

Initiative, Part V, § 1, amended by art. 81, § 2, of the

Amendments of the Massachusetts Constitution. 
3

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 

 

2 We acknowledge the amicus briefs submitted by Daniel J. 

Chao and Shawn P. Kelly and by the National Organization for the 

Reform of Marijuana Laws, in support of the defendant; and the 

Massachusetts Chiefs of Police Association, Inc., in support of 

the Commonwealth. 

3 For reasons that have not been explained, the defendant 

was not charged with unlawful cultivation of marijuana. There 

does not appear to be any evidence of distribution in this case. 
4

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 

 

4 The property consists of a house with a small addition to 

the rear (connected by a breezeway), a barn in the front yard, 

and a large barn in the back yard. 
5

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.
6

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 
7

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 

 

5 Pertinent to this case is § 4 of St. 2012, c. 369 (act): 

"Protection From State Prosecution and Penalties for 

Qualifying Patients and Personal Caregivers 

"Any person meeting the requirements under this law shall 

not be penalized under Massachusetts law in any manner, or 

denied any right or privilege, for such actions. 

"A qualifying patient or a personal caregiver shall not be 

subject to arrest or prosecution, or civil penalty, for the 

medical use of marijuana provided he or she: 

"(a) Possesses no more marijuana than is necessary for the 

patient's personal medical use, not exceeding the amount 

necessary for a sixty-day supply; and 
8

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 

 

"(b) Presents his or her registration card to any law 

enforcement official who questions the patient or caregiver 

regarding use of marijuana." 
9

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 "registration card," which is a personal 

identification card issued by the department that serves both to 

"verify that a physician has provided a written certification to 

the qualifying patient," and to "identify for the [d]epartment 

and law enforcement those individuals who are exempt from 

Massachusetts criminal and civil penalties for conduct pursuant 

to the medical use of marijuana." Id. at § 2 (L). See id. at 

§ 12 (describing application requirements for medical marijuana 

registration card for qualifying patients and personal 

caregivers). A qualifying patient or his or her personal 

caregiver is permitted to possess up to a sixty-day supply of 

 

6 A "personal caregiver" is defined to mean "a person who is 

at least twenty-one (21) years old who has agreed to assist with 

a qualifying patient's medical use of marijuana." St. 2012, 

c. 369, § 2 (J). 
10

marijuana necessary for the patient's personal medical use. See

id. at § 4 (A). In addition, a qualifying patient whose access 

to a licensed medical marijuana treatment center is limited by 

finances or an inability to travel to a licensed center may 

obtain a "hardship cultivation registration" that allows the 

patient or the patient's personal caregiver to cultivate a 

sufficient number of marijuana plants to produce and maintain a 

sixty-day supply of marijuana. Id. at § 11. The act tasks the 

department with defining "the quantity of marijuana that could 

reasonably be presumed to be a sixty-day supply for qualifying 

patients." Id. at § 8.7 

The act provides that the department was to issue 

regulations to govern implementation of all the registration 

provisions in the act. St. 2012, c. 369, § 13. These 

regulations were to be published within 120 days of the act's 

effective date, May 1, 2013. The act also provides, however, 

that "[u]ntil the approval of final regulations, written 

certification by a physician shall have constituted a 

 

7 Under the medical marijuana regulations of the Department 

of Public Health (department), discussed in the next paragraph 

of the text, the presumptive sixty-day supply of medical 

marijuana is defined as ten ounces. See 105 Code Mass. Regs. 

§ 725.004 (2013). The sixty-day supply may be greater than ten 

ounces for an individual qualifying patient upon the patient's 

certifying physician providing written certification and 

documentation that a greater supply is necessary. See 105 Code 

Mass. Regs. § 725.010(I) (2013). The regulation does not 

identify the number of marijuana plants that may be necessary to 

grow ten ounces of marijuana. 
11

registration card for a qualifying patient." Id. See id. at

§ 2 (N) (definition of "written certification"). Additionally, 

until final regulations were in place, "the written 

recommendation of a qualifying patient's physician shall have 

constituted a limited [i.e., hardship] cultivation 

registration." Id. at § 11.8 

The department issued its final medical marijuana 

regulations on May 8, 2013. 105 Code Mass. Regs. § 725.000 

(2013). But of significance to the present case, § 725.015 of 

these regulations, which defines the registration requirements 

for a qualifying patient, provides that if a qualifying patient 

received an initial written certification signed by a physician 

before the department was accepting registration applications, 

 

8 It appears that the act uses the terms "certification" and 

"recommendation" interchangeably. Reading together the quoted 

provisions of St. 2012, c. 369, §§ 13 and 11, relating to what 

respectively constitutes a qualifying patient's registration 

card and a hardship cultivation registration pending approval of 

the department's regulations, we understand them to be referring 

to the same document, namely, the "written certification" 

defined in St. 2012, c. 369, § 2 (N), that is signed by a 

licensed physician and certifies the qualifying patient for use 

of medical marijuana. A memorandum appearing on the 

department's Web site concerning implementation of the act 

confirms this understanding. See "Guidance for Law Enforcement 

Regarding the Medical Use of Marijuana," Department of Public 

Health, Bureau of Health Care Safety and Quality, Medical Use of 

Marijuana Program, at 2 (Updated Apr. 15, 2015) ("Until [the 

department] begins to process hardship cultivation applications, 

patients or their caregivers may conduct limited cultivation at 

their primary residence, but may only grow a sufficient amount 

for their sixty day supply as certified by the patient’s 

physician"). 
12

"the initial certification will remain valid until the 

application for the registration card is approved or denied by 

the [d]epartment."

9 The same holds true for limited cultivation 

registrations: a qualifying patient who received written 

certification from a physician is entitled to continue to use 

that written certification as a hardship cultivation 

registration "until the application for the hardship cultivation 

registration card is approved or denied by the [d]epartment." 

105 Code Mass. Regs. § 725.035(L) (2013). The parties do not 

dispute that at the time of the search of the property, the 

department was not yet approving or denying any applications for 

registration, and there were no registered medical marijuana 

treatment centers in operation.10 Thus, a qualified physician's 

 

9 There is a separate provision governing the registration 

requirements for personal caregivers, 725 Code Mass. Regs. 

§ 725.020 (2013), and it also provides that "the initial 

certification will remain valid until the application for the 

registration card is approved or denied by the [d]epartment."

Id. at § 725.020(C). 

10 According to its public announcements, the department has 

determined that the registration process should be electronic. 

See Program Update -- October 8, 2014, Information for Patients 

and Caregivers, Massachusetts Department of Public Health, 

http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/ 

medical-marijuana/patients-and-caregivers.html [http://perma.cc/

7GS7-ADNU]. The department's goal of having the electronic 

registration system ready by January, 2014, see 105 Code Mass. 

Regs. §§ 725.015(C), 725.020(C), 725.035(L) (setting initial 

registration deadline at January 1, 2014), went unrealized. On 

October 8, 2014, the department announced that, effective 

February 1, 2015, "paper certifications" by physicians would no 

longer be valid proxies for proper registration and, as of that 

date, every qualifying patient would be required to obtain an 
13

written recommendation, undocumented in any database, sufficed 

as both a medical marijuana registration card and a limited 

medical marijuana cultivation registration. 

2. Search warrant and application. "Our inquiry as to the 

sufficiency of the search warrant application always begins and 

ends with the four corners of the affidavit. . . . The 

magistrate considers a question of law: whether the facts 

presented in the affidavit and the reasonable inferences 

therefrom constitute probable cause. . . . [W]e determine 

whether, based on the affidavit in its entirety, the magistrate 

had a substantial basis to conclude that a crime had been 

committed, . . . and that the items described in the warrant 

were related to the criminal activity and probably in the place 

to be searched" (quotations and citations omitted). 

Commonwealth v. O'Day, 440 Mass. 296, 297-298 (2003). See 

Commonwealth v. Donahue, 430 Mass. 710, 711-712 (2000).

The Commonwealth contends that Kent's affidavit established 

probable cause for the search because, as the motion judge 

concluded, the affidavit provided probable cause to believe that 

the defendant was engaged in cultivating marijuana at the 

property, and in the Commonwealth's view all-or-any cultivation 

 

electronic certification from his or her physician and to be 

formally and electronically registered with the department. See 

Program Update -- October 8, 2014, Information for Patients and 

Caregivers, supra.
14

of marijuana remains illegal even under the act. To the extent 

that the act permits a limited class of properly licensed or 

registered persons to grow marijuana, the argument continues, 

the existence of a license or registration is an affirmative 

defense for a defendant charged with unlawful cultivation to 

raise at trial -– the Commonwealth is not obligated to disprove 

such a status in order to conduct a search at the outset of an 

investigation. 

We disagree. Although as a general matter, marijuana 

cultivation is a crime, see G. L. c. 94C, § 32C (a);

Commonwealth v. Palmer, 464 Mass. 773, 777 (2013), and the act 

specifies generally that it remains so, see St. 2012, c. 369, 

§ 7 (E), the Commonwealth is incorrect that the act has not 

effected any change in the statutory and regulatory landscape 

relevant to establishing probable cause for a search targeting 

such cultivation. What § 7 (E) states is that nothing in the 

act "supersedes Massachusetts law prohibiting the . . . 

cultivation . . . of marijuana for nonmedical purposes"

(emphasis added). Under the act, cultivation of marijuana is 

expressly permitted if a person or entity is properly registered 

to do so, and the cultivation does not exceed the amount 

necessary to yield a sixty-day supply of medical marijuana. See 

St. 2012, c. 369, §§ 9 (B), (D), 11. See also id. at §§ 4-6. 

As previously stated, when the search at issue here took place,
15

the act was not fully implemented; no marijuana treatment 

centers were operating; and therefore, pursuant to the act's 

express provisions, see id. at §§ 11, 13, every person who was 

certified as a qualifying patient or the patient's personal 

caregiver was authorized to cultivate a sufficient quantity of 

marijuana to produce a sixty-day supply -- presumptively ten 

ounces.

In these circumstances, as the motion judge suggested, our 

cases involving searches for firearms that may be legally 

possessed with a license but are illegal in the absence of one 

provide an appropriate analytic framework. See Commonwealth v. 

Toole, 389 Mass. 159, 163 (1983).

11 Accord Commonwealth v. 

Nowells, 390 Mass. 621, 627 (1983) (search warrant affidavit did 

not establish probable cause for search of defendant's apartment 

for illegal firearms where informants only indicated they had 

seen guns there: "The ownership or possession of a handgun [or 

 

11 In Toole, we considered a warrantless search of a vehicle 

in which police suspected a gun was located: "[I]t has not 

[been] shown that, when the search was conducted, the police 

reasonably believed that there was a connection between the 

vehicle and any criminal activity of the defendant, an essential 

element to a finding of probable cause. . . . The empty holster 

and ammunition found on the defendant certainly created probable 

cause to believe that there was a gun in the cab. But carrying 

a .45 caliber revolver is not necessarily a crime. A possible 

crime was carrying a gun without a license to carry firearms, 

G. L. c. 269, § 10 (a). However, the police did not learn that 

the defendant had no firearm identification card until after the 

search. They apparently never asked the defendant whether he 

had a license to carry a firearm" (citation omitted). 

Commonwealth v. Toole, 389 Mass. 159, 163 (1983). 
16

a rifle] is not a crime and standing alone creates no probable 

cause"). See also Commonwealth v. Couture, 407 Mass. 178, 181, 

cert. denied, 498 U.S. 951 (1990); Commonwealth v. Stevens, 361 

Mass. 868 (1972). As these cases indicate, although firearms 

cannot legally be carried without a license to carry, see G. L. 

c. 269, § 10 (a), in the absence of any evidence beyond the 

"unadorned fact," Couture, supra, that the defendant was 

carrying a gun, there was no probable cause to suspect a crime 

was being committed.12 Cf. Commonwealth v. Marra, 12 Mass. App. 

Ct. 956, 956-957 (1981) (defendant convicted of storing dynamite 

 

12 Commonwealth v. Gouse, 461 Mass. 787 (2012), a case on 

which the Commonwealth relies, is inapposite. In Gouse, the 

defendant attacked the victim, his former girl friend, on the 

street and left the scene; the investigating police were told by 

bystanders as well as the defendant's father that he might be 

armed; the police also had information that he had been released 

recently from prison, and had been observed armed with a weapon 

and dealing "crack" cocaine. Id. at 788, 790-791. On the same 

day as the attack of the victim, the defendant was stopped by 

the police while driving in a vehicle, removed from the vehicle,

and arrested, and the vehicle was impounded. Id. at 791. The 

police thereafter, during a warrantless search of the vehicle, 

found a gun in a bag that had been placed in the trunk of the 

vehicle. Id. at 791-792. Before trial, the defendant 

unsuccessfully moved to suppress evidence of the gun, but not on 

the ground that probable cause did not exist to believe he was 

not licensed to carry the weapon. See id. at 792-794. (Indeed, 

such an argument would have been highly problematic, given that 

the defendant at the time, in the court's words, was "a fleeing 

felon." See id. at 794. A felon, by definition, may not be 

licensed to carry a firearm. See G. L. c. 140, § 131 [d] [i].)

The defendant in Gouse did raise a challenge related to the 

license issue, but the challenge concerned the allocation of the 

burden of proof between the defendant and the Commonwealth at 

trial concerning the existence of a license. See Gouse, supra

at 799-808.
17

without license; conviction reversed where search warrant 

authorizing search of defendant's trailer for dynamite was not 

based on probable cause: "The observation of a box containing 

[dynamite] blasting caps, without more, to indicate that their 

storage was unlicensed, does not provide probable cause for 

entry into the [defendant's] trailer" where no circumstances set 

out in affidavit indicated blasting caps were, or were 

reasonably likely to be, unlicensed). 

The Commonwealth again misses the mark in seeking to 

distinguish these cases and arguing that the existence of a 

registration card or written certification, like the existence 

of a license, constitutes an affirmative defense that the 

defendant himself is obliged to raise in the first instance --

at trial. A license does constitute an affirmative defense at 

trial to be raised by the defendant. See G. L. c. 278, § 7.

13 

See also Commonwealth v. Gouse, 461 Mass. 787, 804-808 (2012); 

Couture, 407 Mass. at 181-182; Commonwealth v. Jones, 372 Mass. 

403, 405-406 (1977). But this case is not about defenses at 

trial; the issue is probable cause to conduct an investigatory 

search. At the trial of a case in which the existence or 

nonexistence of a license defines whether the charged conduct 

was legal or instead a crime, as Couture explains, the defendant 

 

13 General Laws c. 278, § 7, provides: "A defendant in a 

criminal prosecution, relying for his justification upon a 

license . . . shall prove the same; and until so proved, the 

presumption shall be that he is not so authorized." 
18

"has every opportunity to respond" by producing the license 

authorizing his conduct, and in the absence of the defendant's 

doing so, it is not unfair for the jury to presume in accordance 

with c. 278, § 7, that the defendant did not have a license. 

Couture, supra at 182. Accord Gouse, supra at 806. At the time 

of a search, however, such a defendant is in a very different 

position: the police arrive, armed with (among other things) a 

warrant authorizing the search; the defendant has no right to 

object or respond, and indeed may not even be present. Cf.

Couture, supra at 182-183 (contrasting position of defendant at 

trial with defendant's position when confronted by police 

stopping defendant's truck, removing him from it at gunpoint, 

and conducting warrantless search of truck to locate pistol 

police suspected would be present). Cf. also Commonwealth v. 

Landry, 438 Mass. 206, 211 (2002) (charge of unlawful possession 

of hypodermic needle; contrasting defendant's burden to raise 

affirmative defense of license at trial with question whether 

probable cause existed for unlawful possession at time of 

arrest).14 

 

14 The Commonwealth cites five decisions from other States'

courts as ostensibly persuasive authority that a medical 

marijuana license is exclusively an affirmative defense, rather 

than a legalizing mechanism for program participants. See

Niehaus vs. State, Nos. A-8385, 4798 (Alaska Ct. App. Dec. 10, 

2003); People v. Sexton, 296 P.3d 157 (Colo. App. 2012); State 

vs. Meharg, No. DC-06-16 (Mont. 21st Jud. Dist. Ct. May 26, 

2006); State v. Senna, 194 Vt. 283 (2013); State v. Fry, 168 

Wash. 2d 1, 13 (2010). We do not think these cases offer useful 
19

The firearms and other license cases just discussed govern 

the result here. Beginning with the initial statement of 

purpose, the act's provisions make it abundantly clear that its

intent is to protect the lawful operation of the medical 

marijuana program established by the legislation from all 

aspects of criminal prosecution and punishment, including search 

and seizure of property as part of a criminal investigation. 

See St. 2012, c. 369, §§ 1, 3-6. The act's medical marijuana 

program is structured as a licensing or registration system, and 

expressly contemplates the lawful possession, cultivation, and 

distribution of marijuana for medical purposes by a number of 

different individuals (and certain nonprofit entities), as long 

as they are registered to do so. In light of the statutory and 

regulatory framework created by the act, a search warrant 

affidavit setting out facts that simply establish probable cause 

to believe the owner is growing marijuana on the property in 

question, without more, is insufficient to establish probable 

cause to believe that the suspected cultivation is a crime. 

Missing are facts indicating that the person owning or in 

 

guidance here. The courts were considering substantially 

different medical marijuana laws, and also very different 

factual contexts.
20

control of the property is not or probably not registered to 

cultivate the marijuana at issue.

15 

Detective Kent's affidavit filed in support of the search 

warrant in this case did not contain any information at all 

addressing whether the defendant was or was not registered as a 

qualifying patient or personal caregiver to grow the marijuana 

the police reasonably suspected was growing on the property.

16 

Nor, as the motion judge observed, did it contain other facts or 

qualified opinions that might supply an alternate basis to 

establish the necessary probable cause to believe the 

cultivation was unlawful. See note 15, supra. As such, the 

affidavit failed to establish probable cause for the search.17

 

15 This is not to say that such an affidavit always must 

contain facts directly establishing that the person whose 

property the police seek to search for evidence of unlawful 

marijuana cultivation is or is probably not registered to do so; 

reasonable inferences may be drawn that a suspected marijuana 

cultivation operation is unlawful from other facts. For 

example, except for registered medical marijuana treatment 

centers, it remains unlawful to cultivate marijuana for sale. 

Facts indicating that a confidential informant recently 

purchased marijuana from the owner of the property where the 

cultivation operation is suspected to be taking place would 

likely supply the requisite probable cause to search that 

property for evidence of unlawful cultivation, as would 

information that police recently had observed marijuana plants 

growing on the property and that, in the opinion of a properly 

qualified affiant, the number of plants exceeded the quantity 

necessary to grow a sixty-day supply of ten ounces. 

16 From start to finish, the affidavit reads as though the 

act did not exist. 

17 In arguing against this conclusion, the Commonwealth 

relies heavily on Commonwealth v. Palmer, 464 Mass. 773, 775-778 
21

We disagree with the Commonwealth that the result we reach 

imposes an impossible burden on police to search for elusive and 

difficult-to-locate information about whether a person suspected 

of growing marijuana is registered to do so. Although not 

available in 2013 when the search here was conducted, we assume 

that with the introduction of the electronic registration 

system, see note 10, supra, there is or soon will be available 

to law enforcement officers an accessible list of "the persons 

issued medical marijuana registration cards" as provided in § 15 

of the act.18 Moreover, as we have suggested (see note 15, 

supra), information independent of registration status may also 

 

(2013). The reliance is misplaced. In Palmer, we considered 

what impact, if any, the decriminalization of possession of one 

ounce or less of marijuana, a ballot measure approved by the 

voters in 2008, had on G. L. c. 94C, § 32C (a), which defines 

the offense of cultivation of marijuana. See Palmer, supra at 

775. We concluded that the decriminalization measure did not 

affect the cultivation statute, and that cultivation of 

marijuana of one ounce or less remained a crime. Id. at 774, 

777, 779. But the events giving rise to the criminal charges at 

issue in Palmer occurred in 2010, see id. at 774, no issue 

concerning the medical marijuana act, passed in 2012, was raised

in Palmer, and the court did not consider the relationship of 

the medical marijuana act to § 32C (a) in any respect. 

18 Section 15 of the act states: 

"The department shall maintain a confidential list of the 

persons issued medical marijuana registration cards. 

Individual names and other identifying information on the 

list shall be exempt from [G. L. c. 66, § 10, the Public 

Records Law], and not subject to disclosure, except to 

employees of the department . . . and to Massachusetts law 

enforcement officials when verifying a card holder's 

registration" (emphasis added). 
22

be presented to establish probable cause concerning the 

suspected unlawful cultivation of marijuana. 

Conclusion. The order allowing the defendant's motion to 

suppress is affirmed. 

So ordered.