COMMONWEALTH VS. BENJAMIN CRUZ.
Supreme Judicial Court of Massachusetts
April 19, 2011
459 Mass. 459 (2011)
Suffolk. December 9, 2010. - April 19, 2011. Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.1
A Boston Municipal Court judge did not err in allowing a criminal defendant‘s pretrial motion to suppress evidence found by police on the defendant, a passenger in a stopped automobile, as well as an admission made by the defendant to the police, where, although the officers had properly detained the vehicle to issue a traffic citation and, upon detecting the odor of burnt marijuana, permissibly asked the driver whether he had been smoking marijuana, there was no basis on which the police could order the defendant out of the vehicle without at least some other additional fact beyond the mere odor of burnt marijuana, given that the odor of burnt marijuana alone can no longer provide police officers with reasonable suspicion that criminal activity is underway or with probable cause to believe that a criminal amount of contraband is present, in light of the enactment of
COMPLAINT received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on June 25, 2009.
A pretrial motion to suppress evidence was heard by Mary Ann Driscoll, J.
An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.
Scott Michelman, of California (Jay Rorty, of California, & John Reinstein with him) for the defendant.
Michael D. Cutler & Steven S. Epstein, for National Organization for the Reform of Marijuana Laws, amicus curiae, submitted a brief.
Paul R. Rudof & Ryan M. Schiff, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
IRELAND, J. After a single justice of this court allowed the Commonwealth‘s application for an interlocutory appeal, we granted the defendant‘s application for direct appellate review in order to decide an issue of first impression concerning the impact, if any,
Prior to trial, the defendant filed a motion to suppress the crack cocaine, as well as an admission he made to the officer. After an evidentiary hearing, a judge in the West Roxbury Division of the Boston Municipal Court Department allowed the defendant‘s motion. The Commonwealth petitioned a single justice of this court arguing that the motion judge erred, as a matter of law, in granting the defendant‘s motion. Because we discern no permissible basis on which the police could order the defendant out of the automobile without at least some other additional fact beyond the mere odor of burnt marijuana to bolster a reasonable suspicion of actual criminal activity, we affirm the
1. Facts. We summarize the facts as found by the judge, supplemented by uncontroverted facts from the record of the hearing.2 Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On June 24, 2009, Officers Christopher Morgan and Richard Diaz were in the Hyde Square neighborhood of the Jamaica Plain section of Boston.3 Patrolling in plain clothes and an unmarked Ford Crown Victoria automobile,4 the officers drove down Sunnyside Street at approximately 5 P.M., and saw a vehicle parked in front of a fire hydrant. The vehicle‘s windows were rolled down and it was light outside. Inside, the officers could see a driver and the defendant, who was sitting in the front passenger seat. As the officers drove down the street, Officer Diaz saw the driver light a small, inexpensive cigar that is commonly known to mask the odor of marijuana smoke.
Both officers recognized the defendant as a neighborhood resident who lived on Sunnyside Street. Officer Morgan testified that he had previously seen the defendant smoking a marijuana “blunt,” but the defendant was not known to either officer as a dangerous person, involved in any gang-related activity or violence. Neither officer was aware that either the driver or the defendant had ever been arrested. In fact, Officer Diaz had spoken to the defendant, a nineteen year old man, on several previous occasions about remaining out of trouble. Diaz had suggested ways for the defendant to exempt himself from the “crowd” and encouraged him to do more than “hanging out.”
Pulling up next to the car, Officer Morgan asked the driver to explain why he was parked in front of the fire hydrant, a civil motor vehicle violation. See Traffic Rules and Regulations of the City of Boston art. 4, § 1(6) (2003). The driver replied that he was waiting for his uncle, who lived in a house on Sunnyside Street. While the officers were stopped next to the car,
Officer Morgan noticed that the driver was “very nervous, had trouble breathing” and “it almost looked like he was panicking.” When asked whether he had been smoking marijuana, the driver replied that he had smoked “earlier in the day.” Morgan asked the driver if there was anything inside the car that the officers “should know about.” The driver responded, “No.” Meanwhile, Officer Diaz saw that the defendant appeared “nervous” and made little eye contact with Diaz, choosing to look straight ahead or down. Neither officer saw any contraband or weapons within plain view in the car. There was no evidence that either the driver or the defendant made any furtive gestures or threatening movements.6
The officers neither cited the driver for parking in front of a fire hydrant nor asked for his license and registration. Neither officer conducted any field sobriety tests to determine whether the driver was presently under the influence of marijuana. Instead, the officers called for backup, and four additional officers arrived on the scene in two marked cruisers. Once backup arrived, and based on “the odor of marijuana and just the way they were acting,” both the driver and the passenger were ordered out of the car by Officers Morgan and Diaz.7 As the defendant
The judge concluded that the police permissibly approached the car because it was parked in front of a fire hydrant, a civil traffic violation. She found, however, that the officers should not have ordered the defendant out of the car. The officers could not have reasonably feared for their safety considering that the stop occurred during daylight, the defendant made no furtive or threatening movements, and the defendant was not known to the officers from previous arrests or a reputation for violence.
Further, the judge concluded that the officers could not have ordered the defendant out of the car based on the odor of burnt marijuana alone. She explained that, since the passage of
Finally, the judge found that although
2. Discussion. The Commonwealth argues that despite the decriminalization of possessing one ounce or less of marijuana, the odor of burnt marijuana may still provide the police with probable cause or, at least, reasonable suspicion that a crime is occurring, which justifies the exit order to the defendant. The Commonwealth further contends that once the defendant was validly ordered to get out of the car, the officer could properly ask whether he had any contraband on his person without the need for Miranda warnings.
a. Initiation of the stop. It is uncontested that the officers validly “stopped” the car for parking in front of a fire hydrant, a civil traffic violation. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (officer may validly stop a vehicle committing a traffic violation);
Thus, the officers’ presence at the side of the car was appropriate. Detaining a vehicle to issue a traffic citation, however, must “last no longer than reasonably necessary to effectuate the purpose of the stop.” See Commonwealth v. Garden, 451 Mass. 43, 46 (2008), quoting Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643 (2001). Once the officers approached the car, they were required to complete the parking citation process and, barring other reasons to detain the occupants, leave them free
Because the stop did not end with a written citation and an instruction to the driver to move his vehicle away from the hydrant, further investigation by the officers required additional suspicious conduct. See Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth v. King, supra at 243 (“In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on ‘specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer‘s experience’ “). Once in the process of making a valid stop for a traffic violation, officers are not required to “ignore what [they] see[], smell[] or hear[].” Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996). When Officer Morgan approached the driver‘s side window and detected the odor of burnt marijuana, asking the driver whether he had been smoking marijuana was permissible because the officers could potentially have issued the driver a civil citation pursuant to
b. The exit order. Not all routine traffic stops justify ordering the driver, much less the passenger, out of a stopped vehicle.10 There are three scenarios in which an exit order issued to a passenger in a validly stopped vehicle is justified. First, an exit order is justified if “a reasonably prudent man in the policeman‘s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999), quoting Commonwealth v. Santana, 420 Mass. 205, 212-213 (1995). Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. See
We need not address whether the exit order was justified on the basis of officer safety because the Commonwealth does not contest the motion judge‘s finding that it was not justified on this basis.12 We turn, therefore, to the second permissible basis for issuing the exit order: whether the officers had reasonable suspicion to believe that the defendant was engaged in criminal activity. See Commonwealth v. Silva, 366 Mass. 402, 405 (1974) (to justify further investigative detention of passenger when no safety concerns at issue police must reasonably suspect that passenger himself has committed, was committing, or was about to commit a crime). See also Commonwealth v. Torres, supra at 157 (as passenger in stopped vehicle, defendant could reasonably expect to remain free from investigative fray unless his own behavior aroused suspicion of criminal conduct).
The Commonwealth argues that the stop‘s location, a high crime neighborhood; the defendant‘s nervous demeanor; and the occupants’ sharing of a cigar are facts that bolster the suspicion of criminal activity first aroused by the odor of burnt marijuana. We disagree.
The stop‘s location, although potentially relevant to an objective assessment of officer safety, cannot justify reasonable suspicion to believe a person is involved in criminal activity. See Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125 (2005), quoting Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001) (traffic stop taking place in high crime area must be “considered with some caution because many honest, law-abiding citizens live and work in high crime areas“). Further,
The Commonwealth‘s contention that, because the occupants were sharing a small cigar, known to the officers to mask the odor of marijuana smoke, they were also sharing a marijuana cigarette, lacks merit. The Commonwealth‘s assertion of such sharing is based on Diaz‘s noticing the driver light the cigar as the officers drove down the street and Morgan‘s noting the defendant smoking the cigar once the officers had stopped. The judge made no finding whether she credited the inference that the occupants shared the cigar. Further, there was no evidence that the occupants shared marijuana. The driver‘s admission to smoking “earlier in the day” does not require, as the Commonwealth argues, the inference that the defendant smoked as well. Even if we assume the occupants shared the cigar, it does not necessarily follow that because the occupants shared one legal item, they shared another illegal substance. We will not infer the defendant‘s participation solely from the driver‘s admission concerning his own conduct at some point earlier in the day. See Commonwealth v. Wren, 391 Mass. 705, 707 (1984) (suspicion must be based on reasonable inferences; “hunch will not suffice“).13
We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.16
Here, there could be no suspicion of a criminal offense.17
sufficient to order the driver out of the car. See Commonwealth v. Eckert, 431 Mass. 591, 599, 600 (2000) (vacating order suppressing results of field sobriety tests and remanding case because “if the judge disbelieved the trooper‘s testimony about [whether the engine was running and the defendant had slurred speech], then the facts would not warrant a reasonable suspicion that the defendant was engaged in conduct that was either illegal or a threat to public safety, and the results of the field sobriety tests would properly be suppressed as the fruits of an illegal search or seizure“). Further, the judge found that “there was no probable cause to believe” that the offense of operating under the influence had been committed. Although we agree with the dissent that, in different circumstances, the officers could have ordered the driver out of the car based on a reasonable suspicion that the crime of operating while under the influence had been committed, this does not address the propriety of the officers ordering the defendant out of the vehicle.
Not only has the penalty scheme for possession of one ounce or less of marijuana changed, as the Commonwealth concedes, but the status of this conduct changed as well. By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes. See
Our conclusion that the status of the offense has changed is supported by the statute‘s requirement that offenders under
Given our conclusion that
We do not agree with the defendant‘s assertion that our hold-
This brings us to the third scenario in which the officers could have validly ordered the defendant out of the car - pragmatic reasons. In this case, the Commonwealth argues that the officers had probable cause to search the vehicle, and the exit order was a permissible step to take in order to facilitate the search.26 Generally, a warrant is required to conduct a search; several well-recognized exceptions exist. See Commonwealth v. Anderson, 406 Mass. 343, 346 (1989). Under the automobile exception, a warrantless search of an automobile is permitted when police have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent
this case would have been to issue the defendant, or at the very least the driver, who admitted to smoking marijuana “earlier in the day,” a citation under
In contrast, therefore, to the requirement that criminality be suspected to effectuate an exit order under the reasonable suspicion standard, a warrantless search of an automobile may be based on probable cause that contraband is present. See Commonwealth v. Cast, supra. We have held that the odor of burnt marijuana is sufficient to believe that there is contraband in the car. See Commonwealth v. Garden, 451 Mass. 43, 47 (2008). See also Commonwealth v. Hason, 387 Mass. 169, 174 (1982), and cases cited (“Probable cause requires more than mere suspicion but something less than evidence sufficient to warrant a conviction“). As the Commonwealth appears to argue, it follows then, that if the police have probable cause to believe that contraband, i.e., any amount of marijuana, exists in the car, the police may then validly conduct a warrantless search (and order any passengers out of the car to facilitate that search).
At least one court has adopted this reasoning. In State v. Smalley, 233 Or. App. 263, 265, 270-271 (2010), the Court of Appeals of Oregon determined that, despite the decriminalization of marijuana in small amounts for personal use, when an officer has probable cause, based on the odor of burnt marijuana, to believe that a validly stopped automobile contains any quantity of marijuana, a warrantless search is justified based on the likely presence of contraband. See id.28 See also State v. Kurokawa-Lasciak, 237 Or. App. 492, 499 (2010) (“probable cause to believe a mobile vehicle contained less than an ounce of marijuana justifies a warrantless automobile search because even that noncriminal amount is ‘contraband’ “).
“Search warrants were . . . confined to cases of public prosecutions, instituted and pursued for the suppression of crime or the detection and punishment of criminals. . . . The principles upon which the legality of such warrants could be defended, and the use and purpose to which, by the common law, they were restricted, were well known to the framers of our constitution. . . . Having this knowledge, it cannot be doubted that by the adoption of the 14th article of the Declaration of Rights it was intended strictly and carefully to limit, restrain and regulate the granting and issuing of warrants of that character to the general class of cases, in and to the furtherance of the objects of which they had before been recognized and allowed as
justifiable and lawful processes, and certainly not so to vary, extend and enlarge the purposes for and occasions on which they might be used . . . .” (Emphasis added.)
Robinson v. Richardson, 13 Gray 454, 456-457 (1859).
Here, no facts were articulated to support probable cause to believe that a criminal amount of contraband was present in the car. We conclude, therefore, that in this set of circumstances a magistrate would not, and could not, issue a search warrant.31 See Whiteley v. Warden, supra (“standards applicable to the factual basis supporting the officer‘s probable-cause assessment at the time of the challenged . . . search are at least as stringent as the standards applied with respect to the magistrate‘s assessment“). Because the standard for obtaining a search warrant to search the car could not be met, we conclude that it was unreasonable for the police to order the defendant out of the car in order to facilitate a warrantless search of the car for criminal contraband under the automobile exception.32
Our conclusion is in accord with our oft-repeated principle of proportionality. See, e.g., Commonwealth v. Moses, 408 Mass. 136, 141 (1990), quoting Commonwealth v. Borges, 395 Mass. 788, 794 (1985) (“The degree of intrusiveness that is permitted is that which is ‘proportional to the degree of suspicion that prompted the intrusion’ “). In these circumstances, without probable cause that a crime is being committed, we cannot
3. Conclusion. Because the exit order issued to the defendant cannot be justified on any of the three permissible bases outlined above, the defendant‘s incriminating response to Officer Diaz‘s query whether he had “anything on his person,” and the subsequent seizure of the crack cocaine itself must be suppressed. See Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978) (all evidence traceable to statement made before defendant illegally ordered out of car must be suppressed). See also Commonwealth v. Loughlin, 385 Mass. 60, 63 (1982) (evidence obtained as result of unconstitutional police conduct must be excluded from use at trial under “fruit of the poisonous tree” doctrine).
Accordingly, the allowance of the defendant‘s motion to suppress is affirmed.
So ordered.
COWIN, J. (dissenting). The police officers in this case properly approached, for a parking violation, a vehicle in which the defendant was a passenger. On reaching the vehicle, both officers smelled the odor of burnt marijuana. The vehicle was in a high crime area, and the driver and the defendant appeared nervous. The officers ordered the defendant out of the vehicle and he complied. When questioned, the defendant confessed that he had “crack” cocaine on his person.
Until now, our case law has been clear that the odor of burnt marijuana in a vehicle provides probable cause for a warrantless search. See Commonwealth v. Garden, 451 Mass. 43, 47-48 (2008). Today, the court holds the same evidence, even in
Consistent with
Even though possession of a small amount of marijuana is now no longer criminal, it may serve as the basis for a reasonable suspicion that activities involving marijuana, that are indeed criminal, are underway. The essence of reasonable suspicion is that it justifies an inquiry that may result in establishing that no offense has occurred, or that one may have occurred, but there is insufficient evidence to proceed to probable cause. An inquiry that does not produce evidence that supports going further does not retroactively render unreasonable a suspicion that was reasonable at the time.
Our case law is clear that “the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby.” Commonwealth v. Garden, supra at 48, and cases cited. The advent of decriminalization certainly has had no effect on the distinctiveness of marijuana‘s odor.1 Nor has
Notes
In this case, the officers’ detection of the odor of marijuana provided a basis for a reasonable suspicion that the individuals in the vehicle might be involved in the commission of a crime. Because that suspicion was reasonable, the officers did not violate the defendant‘s rights by inquiring further and by requiring him to exit the vehicle. Accordingly, I dissent.
an odor of burnt marijuana may indicate an offense committed at a somewhat earlier time, reasonable suspicion that a crime has been, or is being, committed is present.“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marijuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marijuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions [subject to other conditions imposed].
“Except as specifically provided in ‘An Act Establishing A Sensible State marijuana Policy,’ neither the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may impose any form of penalty, sanction or disqualification on an offender for possessing an ounce or less of marijuana. By way of illustration rather than limitation, possession of one ounce or less of marijuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent. Information concerning the offense of possession of one ounce or less of marijuana shall not be deemed ‘criminal offender record information,’ ‘evaluative information,’ or ‘intelligence information’ as those terms are defined in [
“As used herein, ‘possession of one ounce or less of marijuana’ includes possession of one ounce or less of marijuana or tetrahydrocannabinol and having cannabinoids or cannabinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body. Nothing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marijuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marijuana or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marijuana or tetrahydrocannabinol, or selling, manufacturing or trafficking in marijuana or tetrahydrocannabinol. Nothing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marijuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marijuana or tetrahydrocannabinol.”
The dissent‘s position, post at 478-479, that, despite the new law, the odor of burnt marijuana may still serve as the basis for reasonable suspicion that criminal activity involving marijuana is underway would circumvent the purpose of the decriminalization law. It is true, as the dissent states, that decriminalization has no effect on the distinctiveness of marijuana‘s odor; but the new law does affect the reasonableness of the officer‘s actions with respect to that odor. It is no longer reasonable for the smell of burnt marijuana alone to lead an officer to suspect that criminal activity is afoot, even if the odor is present in a so-called “high crime” neighborhood. Because the issue is not before us we leave to another day whether the appropriate police action in
“A person seeking a search warrant shall appear personally before a court or justice authorized to issue search warrants in criminal cases and shall give an affidavit in substantially the form hereinafter prescribed. Such affidavit shall contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant. The person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable. Upon the return of said warrant, the affidavit shall be attached to it and shall be filed therewith, and it shall not be a public document until the warrant is returned.” (Emphasis added.)