## Facts

- Police saw Kiiyan Jackson on a park bench with two others, smoking and passing a marijuana cigarette among the group.
- Officers approached, seized the partially consumed cigarette, and conducted a warrantless search of Jackson’s person and backpack.
- The search uncovered marijuana totaling less than one ounce and additional small bags of marijuana.
- Police arrested Jackson and charged him with possession with intent to distribute and related distribution-based offenses, treating the observed passing of the cigarette as felony drug distribution.
- Jackson moved to suppress the seized marijuana, arguing the arrest lacked probable cause because social sharing of a small amount of marijuana was not “distribution” after Massachusetts decriminalized possession of one ounce or less.
- The trial court denied suppression, concluding the sharing constituted distribution and the search was valid as incident to arrest.

## Issues

1. Whether the social sharing of a marijuana cigarette among joint users, without evidence of commercial dealing or intermediary trafficking conduct, constitutes “distribution” or “delivery” under Massachusetts controlled substances law.
2. If the conduct amounts only to possession of one ounce or less (a civil infraction), whether police lacked probable cause for a criminal arrest, rendering a warrantless search of the person and backpack invalid as a search incident to arrest under the Fourth Amendment and art. 14.

## Decision

- The Supreme Judicial Court reversed the denial of the motion to suppress and remanded.
- The court held that social sharing of a marijuana cigarette among joint users is not “distribution” or “delivery” in this context.
- Because the observed conduct indicated, at most, possession of one ounce or less (a civil infraction), police lacked probable cause to arrest Jackson for a criminal offense.
- Without a lawful custodial arrest, the warrantless search of Jackson’s person and backpack could not be justified as a search incident to arrest.
- The marijuana found in the search was ordered suppressed.

## Legal Principles

- “Distribution” and “delivery” require more than noncommercial joint use; passing a marijuana cigarette among joint users may be treated as shared possession rather than a transfer constituting distribution.
- After Massachusetts decriminalized possession of one ounce or less of marijuana, observation of low-level social use and sharing of such an amount does not, without more, establish probable cause of a criminal offense.
- A search incident to arrest is valid only if it follows a lawful custodial arrest supported by probable cause of a criminal violation.
- Evidence obtained from a warrantless search incident to an unlawful arrest is subject to suppression under the exclusionary rule.

## Conclusion

The court ruled that noncommercial social sharing of a marijuana cigarette among joint users is not drug distribution, and that where the facts show only decriminalized possession of one ounce or less, police lack probable cause for a criminal arrest and may not conduct a warrantless search incident to arrest; the resulting evidence must be suppressed.


Commonwealth v. Jackson, 985 N.E.2d 853 (Mass. 2013)