Supreme Judicial Court (April 19, 2011)

In light of the 2008 statutory amendments that decriminalized possession of less than one ounce of marijuana, the odor of burnt marijuana, standing alone, no longer provides probable cause or reasonable suspicion of criminal activity to justify an exit order from an automobile.

On June 24, 2009 around 5 P.M., the defendant was a front-seat passenger in an automobile parked with its windows down in front of a fire hydrant in the Hyde Square neighborhood of Jamaica Plain in Boston. Two plainclothes Boston police officers watched as the "driver" lit a small cigar commonly used to mask the smell of marijuana. As they approached the car, the officers could smell a "faint odor" of burnt marijuana. After observing that the driver and the defendant were nervous, the police ordered both men out of the car. When asked by the police officer whether he had "anything on his person," the defendant replied that he had "a little rock for myself."

The police seized approximately four grams of crack cocaine from the defendant, and charged him with one count of possession of a class B controlled substance, G.L. c. 94C, § 34; possession of a class B controlled substance with intent to distribute, G.L. c. 94C, § 32A; and committing a controlled substance violation in a school zone, G.L. c. 94C, § 32J.

Prior to trial in the district court, the defendant moved to suppress the crack cocaine. The judge allowed his motion, finding that the police had no basis to order him out of the car. The Commonwealth petitioned a single justice for an interlocutory appeal, and the defendant filed an application for direct appellate review. The Court granted the defendant's application to decide an issue of first impression: what impact, if any, does the decriminalization of the possession of less than one ounce of marijuana have on search and seizure case law.

Massachusetts legal precedent is clear that the distinctive smell of marijuana alone provides probable cause to believe that criminal activity is underway. However, the enactment of a 2008 voter ballot initiative changed the status of the possession of one ounce or less of marijuana from a criminal offense to a civil infraction. See G.L. c. 94C, §§ 32L-32N.

In this case the validity of the "stop" was uncontested; parking in front of a hydrant is a civil traffic violation. It is the validity of the exit order that is at issue. The Commonwealth argued that, despite decriminalization, the odor of burnt marijuana still provides the police with probable cause or, at minimum, reasonable suspicion to believe that a crime is occurring, which justifies the exit order to the defendant.

An exit order to a passenger in a validly stopped vehicle is proper when:

1) "[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 was in danger." Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999); or
2) There is reasonable suspicion that the defendant was engaged in criminal activity separate from any offense of the driver; or
3) There are "pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement."

Here, the Court found that the exit order could not be justified by any of the three circumstances outlined above. The Court focused on whether the officers had reasonable suspicion to believe that the defendant was engaged in criminal activity. The Commonwealth argued that the following facts bolstered the suspicion of criminal activity initiated by the smell of burnt marijuana: 1) the stop's location in a high crime area; 2) the defendant's nervousness; 3) the cigar smoking.

The Court disagreed, noting that the facts "must demonstrate a suspicion that the defendant possessed more than one ounce of marijuana, because possession of one ounce or less of marijuana is not a crim. 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." The Court also disagreed with the Commonwealth's argument that the officers had probable cause to search the vehicle. "It is unreasonable for the police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality."

Finding that the exit order could not be justified, the Court affirmed the allowance of the defendant's motion to suppress the crack cocaine.