451 Mass. 43 | Mass. | 2008
Lead Opinion
The defendant was charged in the Boston Municipal Court Department with carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a); possession of a firearm without a firearm identification card, in violation of G. L. c. 269,
1. Background. We recite the facts as they appear in the judge’s memorandum of decision allowing the defendant’s motion to suppress.
The driver’s window of the Honda was open as Officer Cooley approached, and he could see that the driver was a man. The defendant was in the driver’s seat. Officer Cooley approached and spoke to the defendant and as he did so, he saw that Wells was in the front passenger seat. He also noticed the smell of burnt marijuana. According to the judge’s findings, “Cooley did not smell the burned marijuana from within the motor vehicle but only smelled the marijuana coming from the clothes of the occupants of the motor vehicle.” Officer Cooley asked the defendant to get out of the car. The officer feared for his safety — not because of the defendant but because of Wells. Another officer apparently directed Wells to get out of the car also.
The officers conducted patfrisks of both the defendant and Wells; no marijuana, other drugs, or other contraband was found on either man. The officers asked the two passengers in the back seat, both juveniles, to get out of the car.
Officer Cooley asked the defendant if he could look into the trunk; the defendant said no. Nevertheless, Officer Cooley unlocked the trunk, where he discovered three pistols, one of which was protruding from a backpack, as well as two plastic bags of a green leafy substance found in another backpack. All four were placed under arrest and transported to a police station.
Once at the station the defendant was advised of his Miranda rights and signed a Miranda form, and then told Officer Tarantino that the “45” belonged to him.
2. Discussion, a. The stop. “A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are commit
The defendant argues that any justification for the stop evaporated the moment Officer Cooley, in approaching the Honda, observed that the driver of the Honda was a man, and therefore could not be the female owner with the suspended license. We agree that at that moment Officer Cooley no longer had reasonable suspicion that a crime was being committed. An “investigative detention must be temporary and last no longer than reasonably necessary to effectuate the purpose of the stop.” Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643 (2001). See Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006). Nevertheless, because the Honda was already legitimately stopped, it was no violation of the defendant’s rights under art. 14 of the Massachusetts Declaration of rights or the Fourth Amendment to the United States Constitution for Officer Cooley to continue walking the remaining distance from the police cruiser to the Honda, even after learning the gender of the driver. At the very least, the officer properly could have taken the opportunity to explain the reason for the stop before allowing the defendant to continue on his way.
“In dealing with probable cause,. . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Commonwealth v. Cast, 407 Mass. 891, 895 (1990), quoting Draper v. United States, 358 U.S. 307, 313 (1959). The particular fact relied on by the police officers in this case was the odor of burnt marijuana coming from the clothes of the passengers in the Honda. We agree that the officers could have reasonably inferred from this fact that evidence of marijuana was likely to be found in the car.
The defendant argues that the Commonwealth provided no
c. Scope. Although we conclude that the odor of marijuana
A search of the passenger compartment of the vehicle was within the permissible scope of the search because any contraband hidden on the passengers’ person easily could have been transferred to a location in the passenger compartment when they were ordered to get out. See Commonwealth v. Cast, 407 Mass. at 902-903 (officers had probable cause to search those places in car where contraband might have been placed while car was out of sight). Cf. Commonwealth v. Moses, 408 Mass. 136, 144 (1990) (officers who observed defendant duck beneath dashboard after his vehicle was stopped could conduct interior search of automobile “confined in scope” to discover any weapon that could have been concealed beneath dashboard). Moreover, the permissible scope of the search in this case extended not only to the passenger compartment of the vehicle, but also to its occupants, particularly in light of the fact, found by the judge, that the smell of marijuana was coming from their clothing. See Commonwealth v. Washington, 449 Mass. 476, 486-487 (2007) (permitting search of passengers after traffic stop based on exigency and probable cause to believe evidence of crime was present; no arrest necessary to justify search); Commonwealth v. Correia, 66 Mass. App. Ct. at 177 (odor of burnt marijuana emanating from vehicle gave probable cause to search vehicle’s occupants as well as vehicle for evidence of marijuana use and
The search of the Honda’s trunk in this case exceeded the permissible scope of the search because Officer Cooley could not reasonably have believed that the source of the smell of burnt marijuana would be found in the trunk. Reasonableness is the “ ‘touchstone’ of art. 14 . . . and the Fourth Amendment.” Commonwealth v. Roland R., 448 Mass. 278, 281 (2007). Accordingly, a valid search is limited to “any area, place, or container reasonably capable of containing the object of the search.” Commonwealth v. Signorine, 404 Mass. 400, 405 (1989).
The Commonwealth cites Commonwealth v. Cast, 407 Mass. at 906, in which we held, quoting United States v. Ross, 456 U.S. at 825, that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” The Commonwealth argues that according to this rule, a search of the trunk is permitted whenever officers have probable cause to believe there is contraband in a car. The Commonwealth’s reading is too broad. In Commonwealth v. Cast, supra, law enforcement officers conducting surveillance observed the defendant place a suitcase they thought contained two kilograms of cocaine in the trunk of his rented car in Connecticut. When the officers stopped the defendant hours later as he was driving in the Commonwealth, they conducted a warrantless search of the entire vehicle, in addition to the trunk. The court rejected the defendant’s argument that the officers only had probable cause to search the suitcase, and that for such a search they were required to obtain a warrant rather than rely on the automobile exception to the warrant requirement. Id. at
There is no question that in many cases involving searches of automobiles, probable cause to search extends to every area within the vehicle, including the trunk. The facts of this case, however, require a different conclusion, because the odor detected by the officers was not the odor of raw marijuana, which might reasonably suggest the defendant was engaged in selling or transporting the drug, but rather the odor of burnt marijuana, suggesting that the defendant, or others in the car, had been smoking marijuana in the not too distant past. Simply from detecting the odor of burnt marijuana on the clothes of the car’s occupants — most of whom he had seen enter the car a very short time before — the officer could not reasonably have inferred that burning, recently burned, or even raw marijuana would be found in the trunk.
The court in United States v. Wald, 216 F.3d 1222, 1226 (10th Cir. 2000), provided a reasoned explanation for this conclusion: “This rule is premised on the common-sense proposition that the smell of burnt marijuana is indicative of drug usage, rather than drug trafficking, and because it is unreasonable to believe people smoke marijuana in the trunks of cars, the mere smell of burnt marijuana does not create the fair probability that the trunk contains marijuana.” Accord United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993). See State v. Far-
Contrary to the dissent’s suggestion, this rule does not require distinguishing between users and dealers of drugs. Rather, it requires distinguishing between contraband that might reasonably be found in a trunk and contraband that would not reasonably be found in a trunk. Had the officers discovered contraband during the search of the passenger compartment or its passengers, even a small amount suggesting personal use, the permissible scope of the search might have extended not only to the passenger compartment of the automobile but also to its trunk. This is because “[i]t is widely accepted that the discovery of some controlled substances gives probable cause to search for additional controlled substances in the vicinity.” Commonwealth v. Skea, 18 Mass. App. Ct. at 690 n.8. See Commonwealth v. Moses, 408 Mass. 136, 144-145 (1990) (discovery of cocaine and loaded handgun during protective search of passengers and passenger compartment supplied probable cause to search entire vehicle, including trunk). But see Commonwealth v. Pena, 69 Mass. App. Ct. 713, 717-718 (2007) (small bag of marijuana found during patfrisk of one passenger did not supply probable cause to search entire car including area under rear seat, because there was no connection between car and passenger’s drugs).
d. Statements. “It is the Commonwealth’s burden to establish that the evidence it has obtained and intends to use is sufficiently attenuated from the underlying illegality so as to be purged from its taint.” Commonwealth v. Damiano, 444 Mass. 444, 454 (2005). The Commonwealth has not suggested any factors that would have attenuated the taint of the illegal search, and argues only that the search of the trunk was valid. Furthermore, it is plain that the defendant’s statement to the police followed directly from his arrest that itself resulted directly
3. Conclusion. Because the search of the trunk was beyond the scope constitutionally permitted by probable cause on the particular facts found by the motion judge in this case, the evidence found in the trunk must be suppressed. Similarly, the statements made at the police station must be suppressed as tainted fruit of that impermissible search.
Judgment affirmed.
The hearing on the defendant’s motion to suppress was tape recorded, but apparently the recording was inaudible, and thus could not be transcribed. Accordingly, the parties have agreed to rely on the motion judge’s findings of fact.
The record does not reveal whether the two back seat passengers were pat frisked.
The Commonwealth does not attempt to justify the stop based on the confidential informant’s tip about Wells’s involvement in the earlier shooting. The motion judge noted several reasons why the informant’s tip might not have been sufficiently reliable to support the stop, including: the absence of any precise information other than Wells’s presence in the area with a group of men in a white car, when it was not uncommon for Wells to be in the area with a group of men; the delay between the alleged shooting and the tip, and the subsequent delay between the tip and the officers’ observation of Wells; the officers’ observation of Wells in a black car, not a white one; and the absence of any report to police confirming the shooting.
The defendant has not challenged Officer Cooley’s order that he get out of the car, or the patfrisk that the officer conducted of his person.
In his findings, the motion judge emphasized that Officer Cooley smelled marijuana coming from the clothing of the Honda’s occupants, rather than from the inside of the automobile. For purposes of determining whether there is probable cause to search the passenger compartment of a car, this seems to be a distinction without a difference, given the confined area represented by the passenger compartment of most automobiles. See Commonwealth v. Correia, 66 Mass. App. Ct. 174,177 (2006) (detection of “pretty heavy” marijuana odor inside passenger compartment of automobile provided probable cause to search both the compartment and the occupants traveling in it).
See, e.g., Commonwealth v. Henley, 63 Mass. App. Ct. 1, 6 (2005) (odor of marijuana emanating from trunk of rented vehicle stopped in breakdown lane at 2 a.m., with no authorized operator present, provided probable cause to arrest driver); Commonwealth v. Kitchings, 40 Mass. App. Ct. 591, 595-596 (1996) (van that “reeked” of freshly burned marijuana, together with absence of registration plate or authorized driver for rented van, and large amount of cash on one occupant, gave probable cause to search van); Commonwealth v. Valentine, 18 Mass. App. Ct. 965, 966 (1984) (odor of marijuana on driver’s clothes, together with seeds, brown vegetable material, and small envelope in plain view, gave probable cause to believe contraband in car).
This result is also in accord with the majority of courts that have considered the issue. See United States v. Staula, 80 F3d 596, 602 (1st Cir.), cert. denied, 519 U.S. 857 (1996) (“case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area”); State v. MacDonald, 253 Kan. 320, 325 (1993) (police officer had probable cause to search car based on marijuana odor inside it; court observed, “A majority of courts have found that marijuana odor detected by an experienced law enforcement officer can provide sufficient probable cause to support a warrantless search”); People v. Kazmierczak, 461 Mich. 411, 426-427 (2000) (adopting “majority view” that “the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle”); State v. Moore, 90 Ohio St. 3d 47, 48, 50 (2000), cert. denied, 532 U.S. 908 (2001) (adopting “what appears to be the majority view,” that “smell of marijuana, as detected by a person who is qualified to recognize the odor ... is sufficient to establish probable cause”). See generally 2 W.R. LaFave, Search and Seizure § 3.6(b), at 310-311 (4th ed. 2004) (“generally accepted” that probable cause can be found when one qualified to recognize
Courts in other jurisdictions have reached the same conclusion. See, e.g., State v. Harrison, 111 Ariz. 508, 509 (1975) (credibility of officer’s testimony about smelling marijuana is factual question left to jury); People v. Kazmierczak, 461 Mich, at 421-422 (deferring to trial court’s determination of credibility of officer’s testimony about smelling marijuana); State v. Fuente, 871 S.W.2d 438, 441-442 (Mo. 1994) (deferring to trial court’s finding that trooper smelled marijuana on approaching vehicle); 2 W.R. LaFave, Search and Seizure, supra at § 3.6(b), at 313, quoting United States v. Ludwig, 508 F.2d 140, 142 (10th Cir. 1974) (“At least one court has held that ‘inherent in the officer’s statement that he smelled marihuana is the claim that he is familiar with that substance’s odor,’ but this seems to mean no more than that such a general statement will suffice if not challenged but that the defendant is free to cross-examine the officer as to his qualifications”).
The defendant asks us to infer that, in order to detect the odor of marijuana on the clothes of the occupants of the car, Officer Cooley must have first
This conclusion is supported by the judge’s finding that at the time the officer searched the passenger compartment of the Honda, the rear back seat was locked in place, and provided no access to the trunk. In light of this fact, it would not have been reasonable for the officer to believe that the Honda’s occupants could have hidden marijuana in the trunk as they were driving, or that they were carrying on their clothes a smell of marijuana coming from the trunk.
But see State v. Betz, 815 So. 2d 627, 633-634 (Fla. 2002) (smell of burned marijuana, combined with other suspicious factors, gave probable cause to search entire car, including trunk); Wilson v. State, 174 Md. App. Ct. 434, 454-456 (2007), cert, denied, 76 U.S.L.W. 3439 (Feb. 19, 2008) (smell of burned marijuana alone provides probable cause to search entire car, including trunk).
Dissenting Opinion
(dissenting, with whom Greaney and Spina, JJ., join). I agree with the reasoning of the court except for its holding that the trunk of the automobile was beyond the permissible scope of the search. In my view, the odor of burnt marijuana, without more, provides probable cause to search any area of the vehicle that naught reasonably contain marijuana, including the trunk. As the court acknowledges, there is a split of authority on the issue. In my view, we should follow what I believe is the more persuasive reasoning of those cases that permit such a search in these circumstances.
As a general rule, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, police officers must have a warrant based on probable cause in order to conduct a search for contraband. Commonwealth v. Cast, 407 Mass. 891, 901 (1990). Searches conducted without prior judicial approval are per se unreasonable, subject to “a few specifically established and well-delineated exceptions.” Id., quoting Commonwealth v. Anderson, 406 Mass. 343, 346 (1989). One of those exceptions, under both the Fourth Amendment and art. 14 warrant requirements, is the so-called “automobile exception,” when police have probable cause to believe that contraband is present somewhere in an automobile that has been lawfully stopped on a public way, and exigent circumstances (that is, the mobility of the automobile) make obtaining a warrant impracticable. Commonwealth v. Cast, supra. We have consistently held that the exigency created by the
The question before us, then, is whether an odor of marijuana emanating from the passenger compartment of an automobile, while providing probable cause for a search of the passenger compartment, also provides probable cause for a search of the vehicle’s trunk.
In such circumstances, I see no principled reason why the trunk should be excluded from the search. Police officers searching an apartment pursuant to a warrant may open closets and drawers in that apartment; likewise, police conducting a search pursuant to the automobile exception may open a trunk or glove compartment, if they have probable cause to believe contraband may be found there. See United States v. Ross, 456 U.S. 798, 821 (1982) (“When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between . . . glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand”). The purpose of an automobile trunk
At least one of the Circuit Courts of the United States Court of Appeals (the Fifth Circuit) and one State appellate court (Maryland) have reached the same result. See, e.g., United States v. McSween, 53 F.3d 684, 687 (5th Cir.), cert. denied, 516 U.S. 874 (1995) (rejecting argument search must be confined to area where odor was detected); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (odor of burnt marijuana, without more, would justify search of entire vehicle); Wilson v. State, 174 Md. App. Ct. 434, 454-456 (2007), cert. denied, 76 U.S.L.W. 3439 (Feb. 19, 2008).
The court’s decision today, however, follows the reasoning of cases that limit the scope of a search based on an indication that a person is a “casual user” of marijuana rather than a dealer. See, e.g., Wimberly v. Superior Court, 16 Cal. 3d 557, 572 (1976); State v. Schmadeka, 136 Idaho 595, 599-600 (Ct. App. 2001). See also United States v. Wald, 216 F.3d 1222, 1226 (10th Cir. 2000) (odor of burnt methamphetamine; same reasoning).
This reasoning departs from reality in several respects. First, it relies on the unfounded assumption that dealers do not use, and users do not deal. Second, it presupposes that someone who has recently been smoking marijuana, whether user or dealer, would not also be transporting or storing it in an automobile trunk. That assumption is also questionable; one who smokes marijuana openly in a car (or, for that matter, covertly before entering a car) might very well also store it in the trunk. See Wilson v. State, supra at 455. Third, that “it is unreasonable to believe people smoke marijuana in the trunks of cars,” ante at 52, quoting United States v. Wald, supra, is true but irrelevant. The crime is possession of marijuana, and what determines the scope of the search is not where the marijuana might have been smoked but where more of it might be secreted. Contrast Commonwealth v. White, 374 Mass. 132, 141-142 (1977), aff'd, 439 U.S. 280 (1978) (where police had probable cause only to believe defendant was driving while intoxicated, no probable cause to search vehicle). More important, the distinction between using and dealing is one without difference. Either is an offense and provides probable cause to believe a crime has been committed.
The court’s holding places an undue burden on police officers by asking them to ignore common sense and to make a judgment that is unnecessary at this stage of the inquiry. Where officers have sufficient reason to believe a person is in possession of a controlled substance, whether that person is a dealer or “merely” a user is irrelevant to the issue of probable cause. An officer should not be required to make fine distinctions as to the likelihood that a suspect was carrying contraband only in the passenger compartment as opposed to having it stored in other parts of the car. “It is not unreasonable for an officer to believe that the odor of burnt marijuana indicates current possession of un-
To allow a search of the trunk in these circumstances is not, as the court suggests, to hold that “where automobiles are concerned, the general rule that officers limit their search to those locations where the objects of the search might reasonably be found is somehow suspended.” Ante at 52. It is merely to allow officers to use their training, experience, and common sense in determining where contraband might reasonably be found in an automobile. See Commonwealth v. Cast, 407 Mass. 891, 895 (1990) (probable cause determinations deal with “the factual and practical considerations of everyday life”).
This is not a case where the police had probable cause to believe that contraband was contained only in one place and not in any other. “The location-specific principle that ‘probable cause must be tailored to specific compartments and containers within an automobile’ . . . does not apply when officers have only probable cause to believe that contraband is located somewhere within the vehicle, rather than in a specific compartment or container within the vehicle.” Wilson v. State, supra at 454, quoting United States v. Carter, 300 F.3d 415, 422 (4th Cir.), cert. denied sub nom. McRae v. United States, 537 U.S. 1065 (2002), and cert. denied, 537 U.S. 1187 (2003). Here, the officers had probable cause to believe that contraband would be found somewhere in the vehicle, and they should have been permitted to search for it in any part of the vehicle where it might be found. For these reasons, I respectfully dissent.
I agree with the court that the precise source of the odor (whether it came from the passenger compartment itself or the clothing of the occupants) does not affect the analysis in this case.
In addition, dictum in an Iowa case suggests that that State would also permit a search of the trunk based solely on the odor of marijuana. See State v. Longo, 608 N.W.2d 471, 473-474 (Iowa 2000) (while in case at bar other suspicious circumstances were present, court has “substantial doubts as to validity of [the defendant’s] theory that the smell of burnt marijuana only gives rise to a lawful search of the passenger portion of the vehicle and not the trunk”).
The status of Wimberly v. Superior Court, 16 Cal. 3d 557 (1976), is uncertain. Although it has not been expressly repudiated by the Supreme Court of California, several decisions of the Court of Appeal in that State have treated it as abrogated by the United States Supreme Court’s decision in United States v. Ross, 456 U.S. 798, 825 (1982), holding that probable cause to search a vehicle extends to any area where contraband might reasonably be found. See People v. Hunter, 133 Cal. App. 4th 371, 379-380 (2005) (“we do not think [the holding of Wimberly has] continued vitality”); People v. Dey,