128 N.E.3d 593
Mass.2019Background
- Police observed two cars parked near a windowless, cinder-block 11,000 sq. ft. warehouse in a rural area after hours; one vehicle's registered owner had long-standing marijuana convictions.
- Exterior signs suggested modification for indoor cultivation: plywood-blocked vents, newly mortared PVC exhaust pipes, multiple surveillance cameras, and broken padlock with pry marks; empty solvent bottles found in an attached building.
- Officers (including a narcotics-trained detective) detected an overwhelming odor of unburnt marijuana coming from the building and saw lights/movement inside.
- Records checks showed no medical or hardship cultivation registration for the leaseholder or the vehicle owner; the warehouse was not a residence and thus not covered by home-cultivation allowances.
- Police obtained a warrant; execution recovered cultivation equipment, currency, and at least fifty pounds of marijuana. Defendant moved to suppress, arguing odor alone could not establish probable cause for illegal cultivation. Parties reported a question under Mass. R. Crim. P. 34; the Supreme Judicial Court reviewed de novo and upheld probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether affidavit established probable cause to search warehouse for illegal marijuana cultivation | Odor of unburnt marijuana from a large, windowless warehouse plus corroborating facts supported probable cause to find illegal cultivation | Odor alone cannot distinguish legal from illegal amounts; in a large, nonresidential building smell is an unreliable predictor of criminal quantity | Probable cause existed based on totality of circumstances: odor plus physical modifications, lack of licenses, surveillance, signs of break-in, vehicles and occupants' histories |
Key Cases Cited
- Commonwealth v. Overmyer, 469 Mass. 16 (Mass. 2014) (odor of unburnt marijuana, alone, insufficient to predict criminal quantity)
- Commonwealth v. Canning, 471 Mass. 341 (Mass. 2015) (odor plus other indicia can support probable cause to infer cultivation)
- Commonwealth v. Rodriguez, 472 Mass. 767 (Mass. 2015) (odor of marijuana does not justify stops/searches absent more)
- Commonwealth v. Cruz, 459 Mass. 459 (Mass. 2011) (decriminalization of small-amount possession changed investigatory analysis)
- Commonwealth v. Garden, 451 Mass. 43 (Mass. 2008) (historical recognition that distinctive marijuana odor formerly supported probable cause)