Commonwealth v. Canning, 471 Mass. 341

Background

In May 2013 police executed a warrant at Josiah Canning’s Brewster property and seized ~70 marijuana plants, lights, hose, scale, ~1.2 lb. marijuana and cash; Canning was arrested and charged with distribution-related offenses.
The warrant was supported by an affidavit from Detective Kent describing a confidential informant’s tip, observations of obscured windows, exhaust hose and fans, the smell of marijuana, night-vision observations of interior light, prior purchase of grow equipment, and unusually high electrical usage at the property.
The search occurred after Massachusetts’ 2012 Medical Use of Marijuana Act (St. 2012, c. 369) took effect (Jan. 1, 2013), which permits registered qualifying patients and caregivers to possess and, with hardship cultivation registration, to cultivate up to a sixty‑day supply.
At the time of the search the Department of Public Health had not completed electronic registration; written physician certifications nonetheless served as temporary registration/hardship cultivation authorization.
The motion judge suppressed the evidence, holding the affidavit showed probable cause of cultivation but failed to show probable cause that cultivation was unlawful (i.e., that Canning was not authorized/registered). The SJC affirmed.

Issues

Issue	Commonwealth's Argument	Canning's Argument	Held
Whether probable cause to search for marijuana cultivation requires evidence the grower is not registered under the medical‑marijuana act	A showing of cultivation suffices; registration is an affirmative defense to be raised at trial	Warrant affidavits must include facts supporting probable cause that suspected cultivation is unlawful (i.e., the person is not registered)	The affidavit must supply probable cause that the person is not authorized; cultivation alone is insufficient to justify a warrant
Whether analogies to licensed‑possession cases (firearms, explosives) control probable‑cause analysis here	Act did not change warrant standard; police need not disprove registration before searching	License/registration status affects legality of conduct and must be considered pre‑search; analogous license cases require showing illegal status	License/registration framework is analogous; courts require evidence that conduct is unlicensed/unregistered before issuing a search warrant
Whether reasonable inferences or alternate facts can substitute for direct registration info	Police burden to establish non‑registration is onerous and often impractical	Registration can be shown either directly or by other facts (e.g., quantity inconsistent with medical use, sales activity)	Direct registry checks or alternate facts (e.g., evidence of distribution or quantity exceeding a medical supply) may supply probable cause; but none were present here
Whether the warrant affidavit here was sufficient	The affidavit established cultivation and thus probable cause for search	Affidavit did not address registration or other indicia that cultivation was unlawful	Affidavit failed: it established cultivation but not probable cause that cultivation was illegal (no info on registration/non‑authorization)

Key Cases Cited

Commonwealth v. O'Day, 440 Mass. 296 (describing four‑corners rule for affidavit probable cause review)
Commonwealth v. Toole, 389 Mass. 159 (warrantless vehicle search insufficient where license status unknown)
Commonwealth v. Couture, 407 Mass. 178 (distinguishing trial burden to prove license from probable‑cause requirement at time of search)
Commonwealth v. Palmer, 464 Mass. 773 (discussing effect of decriminalization on cultivation statutes)
Commonwealth v. Gouse, 461 Mass. 787 (contextual analysis where defendant’s circumstances bore on possession/license issues)
Commonwealth v. Donahue, 430 Mass. 710 (probable cause and nexus analysis for warrants)
Commonwealth v. Nowells, 390 Mass. 621 (license possession analogies)
Commonwealth v. Landry, 438 Mass. 206 (contrast between raising license defenses at trial and probable cause at arrest/search)