Commonwealth v. Palmer (Lawyers Weekly No. 10-057-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11225 COMMONWEALTH vs. KENNETH J. PALMER, JR. Berkshire. December 6, 2012. ‑ April 5, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Arrest. Constitutional Law, Search and seizure, Arrest. Search and Seizure, Arrest, Search incident to lawful arrest, Warrant. Statute, Construction. Complaint received and sworn to in the Northern Berkshire Division of the District Court Department on September 28, 2010. A motion to dismiss was heard by Paul M. Vrabel, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John Bossé, Assistant District Attorney, for the Commonwealth. David M. Skeels, Committee for Public Counsel Services, for the defendant. BOTSFORD, J. In this case we consider again what impact, if any, G. L. c. 94C, § 32L (§ 32L), which decriminalizes possession of one ounce or less of marijuana, has on the provisions of G. L. c. 94C, § 32C (a) (§ 32C [a]). See Commonwealth v. Keefner, 461 Mass. 507 (2012) (Keefner). The defendant was charged with cultivation of marijuana in violation of § 32C (a), and committing that violation in a school zone, G. L. c. 94C, § 32J, after police found several marijuana plants that collectively weighed less than one ounce growing in a closet in his home. A judge in the District Court granted the defendant’s motion to dismiss, concluding that under § 32L, a person who cultivates marijuana plants that weigh one ounce or less may not be charged with cultivation in violation of § 32C (a). The Commonwealth appealed pursuant to G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996), and we transferred the case to this court on our own motion. The Commonwealth argues that the case is controlled by this court’s decision in Keefner, supra, and that § 32L decriminalized simple possession, but not cultivation, of one ounce or less of marijuana. We agree with the Commonwealth and reverse the order allowing the defendant’s motion to dismiss. Background. The undisputed facts as recounted by the motion judge are the following. On September 28, 2010, officers of the Adams police department consensually entered the defendant’s residence and arrested him on active warrants. While searching for the defendant in his home, the officers observed in […]