COMMONWEALTH vs. ELIVETTE RODRIGUEZ.
SJC-11807
Supreme Judicial Court of Massachusetts
September 22, 2015
472 Mass. 767 (2015)
Bristol. March 5, 2015. - September 22, 2015. Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
A District Court judge erred in denying the criminal defendant‘s pretrial motion to suppress evidence of controlled substances that a police officer discovered after having stopped the defendant‘s motor vehicle following the detection of an odor of burnt marijuana coming from it while it was moving, where the stop was unreasonable under
COMPLAINT received and sworn to in the New Bedford Division of the District Court Department on April 27, 2012.
A pretrial motion to suppress evidence was heard by Joseph I. Macy, J.
An application for leave to prosecute an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
John L. Calcagni, III, for the defendant.
Corey T. Mastin, Assistant District Attorney, for the Commonwealth.
BOTSFORD, J. This case, in which the defendant appeals from the denial of her motion to suppress, centers on a motor vehicle stop based on a police officer‘s detection of an odor of burnt marijuana coming from the vehicle. It requires us to evaluate further the impact of
1. Background. To provide context, we summarize the evidence presented at the hearing on the defendant‘s motion to suppress.1 On the evening of April 26, 2012, Detective Daniel Amaral of the New Bedford police department was driving an unmarked police cruiser assisting a narcotics surveillance team of police officers when he came upon a motor vehicle that he had stopped once before. During the earlier stop, Amaral had arrested the woman who normally drove that vehicle for heroin possession. He knew that the surveillance team was interested in the vehicle because of its connection to the earlier drug-related arrest. Accordingly, he followed the vehicle and thereafter received instruction from the surveillance team to pull it over.2
As Amaral followed the vehicle, he detected an odor of burnt marijuana coming from it.3 Based on the odor, and without having seen the driver of the vehicle commit any traffic violations, Amaral pulled the vehicle over and approached the driver‘s side. The driver, a male, held in his right hand what Amaral recognized as a marijuana cigar. Amaral asked the driver whether the cigar was what was causing the odor, and the driver responded that it was. Amaral then confiscated the cigar and asked for the driver‘s
On November 30, 2012, the defendant moved to suppress evidence of the pills. The motion judge held an evidentiary hearing on May 3, 2013; the only issue addressed was the propriety of the motor vehicle stop. Following the hearing, the judge concluded that the odor of burnt marijuana, coupled with other “suspicious activity implicating but not rising to drug activity” involving the vehicle, justified the stop. A single justice of this court granted the defendant‘s request for leave to pursue an interlocutory appeal of the order denying the motion to suppress, and directed the appeal to be heard in the Appeals Court. See
2. Discussion. “When reviewing a motion to suppress evidence, we adopt the motion judge‘s subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge‘s application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). See Commonwealth v. Craan, 469 Mass. 24, 26 (2014).
In 2008, as a result of an initiative petition adopted by the voters, possession of one ounce or less of marijuana changed from being a criminal to a civil offense in the Commonwealth. See
Because both the Commonwealth and the defendant premise much of their arguments on the statutes that establish procedures for issuing citations for traffic violations and for civil marijuana infractions, we begin our analysis with a review of those statutes. General Laws
Focusing first on our traffic violation statutes, we agree with the position of both the Commonwealth and the defendant that because many of these laws pertain specifically to moving vehicles, and
Like
A police stop of a moving automobile constitutes a seizure, and therefore, any such stop, whatever its purpose, must comply with the
In undertaking that analysis here, the first task is to determine whether we are dealing with an issue of probable cause or reasonable suspicion. In Commonwealth v. Garden, 451 Mass. 43 (2008), we stated that the “odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby.” Id. at 48. See Commonwealth v. Lawrence L., 439 Mass. 817, 823 (2003) (“odors alone may be sufficient to satisfy the probable cause requirement of the Fourth Amendment“). However, that decision preceded the decriminalization of possession of one ounce or less of marijuana. See Garden, supra at 43. Since then, we have “reconsider[ed] our jurisprudence in light of the change to our laws.” See Cruz, 459 Mass. at 464 & n.8. In particular, our analysis of the meaning that can be derived from the odor of marijuana alone has evolved, such that, as indicated previously, we no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present, see Overmyer, 469 Mass. at 23; nor is such a determination of probable cause appropriate based on the smell of burnt marijuana combined with the presence of two small bags totaling less than one ounce. See Daniel, 464 Mass. at 747, 751-752. Although we
With this principle in mind, Garden‘s conclusion that the odor of marijuana alone creates probable cause to believe that the drug is still present is insufficiently nuanced, because it fails to account for the significant possibility that the odor of burnt marijuana may be present on a person or in a vehicle, but the drug itself is not. As we noted in Garden itself, where the occupants of a vehicle wore clothes that smelled like marijuana but a patfrisk of these persons produced no drugs, the odor of burnt marijuana in this context may have “suggest[ed] that the defendant, or others in the car, had been smoking marijuana in the not too distant past.” Id. at 52. We add here another possibility: that the individuals who smelled like marijuana could have been at a social gathering where others smoked marijuana. See Daniel, 464 Mass. at 747, 756 (interior of vehicle smelled of burnt marijuana; driver attributed this smell to being at party where others smoked). These examples illustrate the point that although the occupants of a vehicle, or the vehicle‘s interior, might smell like burnt marijuana, that does not necessarily mean that an occupant of the vehicle currently possesses any amount of marijuana. Therefore, upon further consideration of these possibilities, and keeping in mind that probable cause determinations turn on “probabilities,” including “factual and practical considerations of everyday life,” see Commonwealth v. Cast, 407 Mass. 891, 895 (1990) (citation omitted), we conclude that in a case such as the present one, where the only factor leading an officer to conclude that an individual possesses marijuana is the smell of burnt marijuana, this factor supports a reasonable suspicion that that individual is committing the civil offense of possession of a small quantity of marijuana, but not probable cause to believe that he or she is committing the offense. Therefore, the question in this case is whether the
“[T]he ‘ultimate touchstone of both the
Regardless of the reason for it, a police stop of a moving vehicle can be “humiliating, frightening, and embarrassing” for the vehicle‘s occupants, and can raise the possibility of arrest and incarceration for a crime unrelated to the original reason for the stop, as the present case illustrates. See Woods, Decriminalization, Police Authority, and Routine Traffic Stops, 62 U.C.L.A. L. Rev. 672, 713 (2015). Cf. Prouse, 440 U.S. at 657 (random vehicle stops to check documents “generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority[,] ... interfere with freedom of movement, are inconvenient, ... consume time ... [and] may create substantial anxiety“). However, in the automobile law context, allowing police to make these stops serves a significant governmental interest. As discussed previously, many of our traffic violation statutes regulate moving cars and relate directly to the promotion of public safety; even those laws that have to do with maintaining a vehicle‘s equipment in accordance with certain standards may also be safety-related. See id. at 658 (recognizing States’ “vital interest” in vehicle inspection and registration requirements, which ensure that all vehicles are “fit for safe operation“). Permitting stops based on reasonable suspicion or probable cause that these laws may have been violated gives police the ability to immediately address potential safety hazards on the road. Thus,
No similar governmental interest supports allowing police to stop a vehicle based on reasonable suspicion that someone in the vehicle possesses an ounce or less of marijuana in violation of
Although marijuana possession remains illegal, the present case is not one in which a police officer actually observed an infraction - such as a person walking through a park smoking what appeared to be a marijuana cigar or cigarette - and stopped the offender for the purpose of issuing a citation and confiscating the offending item. Rather, here, an officer smelled burnt marijuana, nothing more, and stopped a vehicle to investigate further whether a citation was appropriate. (It was only after the stop had been made that Amaral observed the driver‘s marijuana cigar.) Because stops based on reasonable suspicion of a possible civil marijuana infraction do not promote highway safety and run contrary to the purposes of
3. Conclusion. The order denying the defendant‘s motion to suppress is reversed. The case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
CORDY, J. (dissenting, with whom Spina, J., joins). “An Act establishing a sensible State marijuana policy,” codified at
The novel issue presented here is whether reasonable suspicion of a civil marijuana violation occurring in a motor vehicle is
It is undisputed that a motor vehicle stop conducted by a police officer constitutes a seizure for purposes of both the
The court, however, concludes that a detailed balancing inquiry is required when a motor vehicle stop is conducted in the absence of probable cause. The cases on which the court relies in support
Likewise, the central issue addressed by the Supreme Court in Whren v. United States, 517 U.S. 806, 810 (1996), was not the quantum of proof necessary to effectuate a motor vehicle stop for a traffic violation, but whether the (allegedly racial) subjective motivation of the police officer conducting the motor vehicle stop was relevant to the stop‘s reasonableness. The Court declined to engage in a detailed balancing inquiry to determine the stop‘s reasonableness, concluding that such balancing is not necessary when a motor vehicle stop is conducted with individualized suspicion, id. at 817-819, in that case, probable cause to believe a civil motor vehicle infraction had occurred. Id. at 819. Here, there is also individualized suspicion, albeit at least reasonable suspicion.2
Finally, the court relies on Commonwealth v. Rodriguez, 430 Mass. 577, 580-581 (2000), to support its balancing inquiry. The Rodriguez case, however, addressed the constitutionality of a police roadblock set up for the purpose of interdicting illegal drugs. Id. at 585-586. This court noted that except for a few narrowly defined public safety intrusions, a police officer must possess at least reasonable suspicion to justify a motor vehicle stop. Id. at 580, quoting United States v. Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). Again, a motor vehicle stop conducted as part
In my view, no detailed balancing of interests is necessary where this court has already recognized that reasonable suspicion of a civil motor vehicle infraction is sufficient to justify an investigatory stop for purposes of confirming or dispelling that suspicion. See Washington, 459 Mass. at 39 & n.14. “[T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test” (footnotes omitted). Prouse, 440 U.S. at 654. That standard is met here and standing alone should be sufficient to justify an investigatory stop for the purpose of confirming a civil violation of the marijuana laws and issuing a citation just as reasonable suspicion of a civil traffic violation justifies such a stop. See, e.g., People v. Brown, 62 Cal. App. 4th 493, 496-497 (1998) (officer may stop individual suspected of violating California vehicle code in order to issue citation); State v. Brown, 694 A.2d 453, 453 (Me. 1997) (“In order to support a brief investigatory stop of a motor vehicle, ... a police officer must have an articulable suspicion that criminal conduct or a civil violation has occurred, is occurring, or is about to occur...“); State v. Colstad, 260 Wis. 2d 406, 414-415 (2003), cert. denied, 540 U.S. 877 (2003) (reasonable suspicion that driver violated traffic ordinance justified investigatory stop). The stop is investigative in nature, and its purpose is merely to confirm or dispel the officer‘s suspicion that a civil marijuana violation has occurred.3
The court goes on to opine that because a civil marijuana violation generally has no bearing on traffic and automobile safety, a motor vehicle stop to enforce that law is different from
Finally, the court concludes not only that probable cause is necessary, but also that probable cause can be established only if the police officer actually sees the illegal use of marijuana. To my knowledge, we have not in the past concluded that probable cause can only be established in this manner. See, e.g., Washington, 459 Mass. at 40 (although officer did not actually see defendant riding in motor vehicle without seat belt, officer had probable cause sufficient to issue citation where defendant was not wearing seat belt very shortly after traffic stop).
For these reasons, I respectfully dissent.