51 N.E.3d 484
Mass. App. Ct.2016Background
- State troopers stopped a rented white minivan for erratic lane change and speeding; driver Andrew Locke produced an Arizona license and a Rhode Island rental agreement naming another person.
- Trooper Driscoll smelled unburned marijuana when speaking with the driver; officers observed multiple air fresheners and noted the driver appeared nervous; passenger Tanik Kerr was silent and lacked ID.
- Backup and a canine unit arrived; a drug dog alerted at the rear lift gate; officers opened the van and detected a strong marijuana odor and found seven bundles (later confirmed 159 pounds) under a tarp in the cargo area.
- Troopers ordered both occupants out, conducted pat-frisks, detained them in cruisers, then searched and seized the marijuana; defendants moved to suppress and the judge allowed suppression.
- Commonwealth appealed, arguing the odor plus other facts gave reasonable suspicion/probable cause; the Appeals Court affirmed suppression under recent SJC precedents holding odor alone insufficient to establish a criminal amount.
Issues
| Issue | Commonwealth's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether officers had reasonable suspicion to order occupants out and frisk them | Odor of marijuana, air fresheners, nervousness, and questionable rental agreement justified exit orders and frisks | Odor and nervousness alone (with rental facts) insufficient for exit orders or frisks | No reasonable suspicion; exit orders and frisks were not justified |
| Whether officers had probable cause to search the vehicle under the automobile exception | Strong/very strong odor of unburned marijuana plus other facts supported probable cause that a criminal amount (>1 oz) was present | Smell (even if strong) cannot reliably indicate quantity; thus no probable cause based on odor and surrounding facts | No probable cause; odor alone (even strong) cannot establish criminal quantity |
| Whether canine alert established probable cause to search for a criminal amount | Dog alerted to narcotics at rear, supporting search | No evidence dog could discern quantity; dog detection only shows presence, not weight | Canine alert did not establish probable cause as to quantity |
| Whether the post-stop detention and inventory/search (including tow) cured defects | Suggested arrest for unauthorized use or towing would have led to inventory search and discovery | Facts to support lawful arrest/tow were not developed; detention was prolonged without proper basis | Prolonged detention and subsequent search were invalid; suppression affirmed |
Key Cases Cited
- Commonwealth v. Cruz, 459 Mass. 459 (SJC) (odor of marijuana, nervouness, and related factors do not alone justify search)
- Commonwealth v. Overmyer, 469 Mass. 16 (SJC) (strength of odor is subjective; smell alone cannot reliably establish presence of criminal quantity)
- Commonwealth v. Craan, 469 Mass. 24 (SJC) (odor of marijuana insufficient to provide probable cause to search vehicle)
- Commonwealth v. Rodriguez, 472 Mass. 767 (SJC) (strong smell of unburnt marijuana no longer provides probable cause that criminal amount is present)
- Commonwealth v. Torres, 433 Mass. 669 (SJC) (traffic violation justifies initial stop)
- Commonwealth v. Garden, 451 Mass. 43 (SJC) (traffic stop must last no longer than reasonably necessary to effectuate purpose)
- Commonwealth v. Lawson, 79 Mass. App. Ct. 322 (Mass. App. Ct.) (appellate review of application of constitutional principles to facts)