Supreme Judicial Court, February 16, 2012
A lawful stop of a motor vehicle, the odor of burnt marijuana, and the recovery of marijuana from the driver together provide an officer with probable cause to believe the defendant is engaged in criminal activity sufficient to justify an exit order and search of the automobile.
The defendants were traveling in a sports utility vehicle with a headlight out. As the vehicle reached an intersection, the driver turned in front of a police cruiser without using the directional signal. The police officer pulled the driver over for moving violations. As the officer approached the vehicle, he noticed that the passenger was reaching over, rocking back and forth with his head down, and his hands were not visible. When the officer reached the passenger side window he noticed the odor of freshly burnt marijuana. After brief questioning, the driver handed the officer two small bags of marijuana. The officer ordered the driver and passenger out of the vehicle, pat frisked them for safety, and performed a search of the vehicle during which he found a loaded firearm in the glove box. The driver and the passenger were charged with multiple firearm offenses.
The defendants moved to suppress the firearm arguing that the officer lacked probable cause to search the vehicle for marijuana based on G.L. c. 94C, §§ 32L-32N, the decriminalization of an ounce of marijuana or less. The judge agreed and allowed the motion to suppress.
A single justice of the Supreme Court allowed the Commonwealth’s application for an interlocutory appeal and reported the case to the full bench.
The Court began its analysis with Commonwealth v. Cruz, 459 Mass. 459 (2011), which held that given the changed “status of possessing one ounce or less of marijuana from a crime to a civil infraction, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.” Id. at 472. “To order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal." However, the Court pointed out that “the criminality afoot in this case does not depend solely on the amount of marijuana present in the vehicle.”
In this case, the driver of the vehicle was operating erratically, the passenger’s actions indicated that he was hiding contraband, the officer noted an odor of freshly burnt marijuana, which could explain the driver’s erratic operation, and the driver produced additional marijuana. These facts, viewed objectively, provided the officer with probable cause to believe that the driver was using marijuana while operating her motor vehicle negligently, putting the lives and safety of the public at risk. “Officers are not required to ignore what they see, smell, or hear.” Commonwealth v. Bartlett, 41 Mass. App. Ct. 468 (1996). Despite the fact that the officer did not cite or arrest the driver for operating under the influence of marijuana or operating a motor vehicle negligently, the search is not invalidated. The police are not required to make an arrest every time they have probable cause to believe someone has committed a crime. Commonwealth v. Johnson 461 Mass. 44 (2011). Instead, "[t]he issue of paramount importance is whether the police, prior to the commencement of a warrantless search, had probable cause to believe that they would find ... 'evidence pertaining to a crime' in the vehicle." Id. at 49, quoting from Commonwealth v. Antobenedetto, 366 Mass. 51, 55 (1974). In this case, the Court found that the officer did have probable cause to believe that he would find evidence of criminal activity in the vehicle, namely additional marijuana and evidence of recent usage.
The Court also found that in light of the facts of this case, it was not unreasonable for the officer to order the passenger out of the vehicle, frisk him, and extend the frisk to a search of the glove box. Therefore, the Court reversed the lower court’s decision to allow the motion to suppress.