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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.
