Com. v. Correia, 05-P-235.

• Decision Date: 21 April 2006
• Docket Number: No. 05-P-235.,05-P-235.
• Citation: 845 N.E.2d 1210,66 Mass. App. Ct. 174
• Parties: COMMONWEALTH v. Ildo CORREIA.
• Court: Appeals Court of Massachusetts

845 N.E.2d 1210

66 Mass. App. Ct. 174

COMMONWEALTH v. Ildo CORREIA.

No. 05-P-235.

Appeals Court of Massachusetts, Plymouth.

Argued January 12, 2006.

Decided April 21, 2006.

Jane Larmon White, Committee for Public Counsel Services, Boston, for the defendant.

Therese M. Wright, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, COHEN, & GRAHAM, JJ.

COHEN, J.

Charged with drug offenses,¹ the defendant filed a motion to suppress evidence found by the police in the course of the motor vehicle stop that led to his arrest. A judge of the District Court denied the motion, and the defendant petitioned for leave to file an interlocutory appeal. A single justice of the Supreme Judicial Court allowed the petition and reported the matter to this court. See Mass. R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996); G.L. c. 278, § 28E. The question presented is whether, after detecting the odor of marijuana emanating from the automobile in which the defendant was a rear seat passenger, it was lawful for the police to order the defendant out of the vehicle and, after seeing the remains of a marijuana cigarette in his vicinity, to search him for further evidence of use and possession.

1. The suppression hearing. The only witness at the suppression hearing was one of the arresting officers, George Almeida of the Brockton police department. After hearing Almeida's testimony and the arguments of counsel, the judge orally issued his findings of fact and conclusions of law.

The judge found that on the day in question, Almeida and his partner, Michael Skinner, were on routine patrol.² As the officers were driving into a parking lot behind the car in which the defendant and three other individuals were riding, Almeida noticed that the car's inspection sticker had expired. The officers pulled over their cruiser, stepped out, and approached the defendant's car. Almeida stood on the driver's side, and Skinner on the passenger side.

Skinner and the driver conversed across the front seat passenger, through the passenger side window, which had been rolled down. As they spoke, Skinner made eye contact with Almeida and signaled that there was an issue of drugs in the car.³ The driver then rolled his window down a short distance, at which point Almeida could smell the odor of burnt marijuana.

Almeida, who testified that he had been specifically trained to recognize the smell of burning marijuana, described the odor coming from the car as "pretty heavy." Although the judge made no explicit findings with respect to Almeida's training or the strength of the odor, we adopt the officer's testimony as to these additional facts, since he was the only witness at the hearing on the motion to suppress, and the judge plainly credited his testimony. Commonwealth v. Kitchings, 40 Mass.App. Ct. 591, 593 n. 4, 666 N.E.2d 511 (1996).

After perceiving the odor, and while the driver was still talking to Skinner, Almeida went over to the rear door of the car, opened it and told the defendant to get out. Almeida then saw what appeared to be a roach — the remains of a marijuana cigarette — on the floor of the automobile, near the other rear seat passenger. The roach (which was admitted in evidence) was black and burnt and between one half and three quarters of an inch long.

Almeida told the defendant to put his hands behind his head so that Almeida could keep control over him. As the defendant complied, he bent at the waist and squatted slightly. Almeida became concerned and immediately reached for the defendant's waistband. Finding nothing he patted the defendant's groin area where he found a cigarette box with the top torn off. In the box were plastic baggies containing what appeared to be marijuana.

Once he placed the defendant in the back of the cruiser, Almeida went back toward the car where another passenger was being removed by an additional officer who had arrived as back-up. The officers observed a plastic baggie containing what appeared to be marijuana on the seat where this passenger had been sitting.

The judge denied the defendant's motion to suppress evidence removed from his person and the car, ruling that, because of the smell perceived by the officers, there was probable cause to search the car and its occupants, including the defendant, for marijuana or evidence of marijuana use.⁴

2. Discussion. The defendant contends that the odor of burnt marijuana from within a vehicle does not, standing alone, provide probable cause for the search of a passenger in the car. His argument has two parts. First, he claims that there must be something beyond smell — such as obvious smoke, a furtive movement, or known drug involvement by the suspect — to supply probable cause for the police to search for more marijuana in the vicinity of the odor. Second, he claims that the odor of burnt marijuana in a car containing four people does not provide particularized probable cause to arrest or search the passengers.

The defendant's first argument is contrary to well-established law. Even if other factors may have been present in some cases, we have stated without equivocation that the perception by a police officer with training and experience in narcotics detection of "a strong, fresh odor of burnt marijuana emerging from a motor vehicle provide[s] probable cause to search the vehicle." Commonwealth v. Kitchings, supra at 596 n. 8, 666 N.E.2d 511. See Commonwealth v. Lawrence L., 439 Mass. 817, 823, 792 N.E.2d 109 (2003), upholding the legality of the search of a juvenile by a school official who detected a strong marijuana odor emanating from the juvenile's person, and citing to the United States Supreme Court's decision in Johnson v....