Com. v. Garden

• Decision Date: 01 April 2008
• Docket Number: SJC-09860.
• Parties: COMMONWEALTH v. Marshawn GARDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

883 N.E.2d 905

451 Mass. 43

COMMONWEALTH v. Marshawn GARDEN.

SJC-09860.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 3, 2007.

Decided April 1, 2008.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Veronica J. White, Boston (Andrea Petersen with her) for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

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 § 10 (h); receiving stolen property, in violation of G.L. c. 266, § 60; and unlawful possession of a class D substance, in violation of G.L. c. 94C, § 34. After a hearing, a judge in that court granted the defendant's motion to suppress evidence seized from the trunk of the vehicle that the defendant was driving. The judge also suppressed statements made by the defendant after he had been arrested and given his Miranda warnings. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. The Commonwealth argues that the search was justified by probable cause because the officer detected the odor of burnt marijuana after a valid stop of the car. While we agree that in appropriate circumstances the smell of marijuana can provide probable cause to search all parts of a vehicle, in the circumstances of this case, probable cause to search did not extend to the trunk. Accordingly, we affirm.

1. Background. We recite the facts as they appear in the judge's memorandum and decision allowing the defendant's motion to suppress.¹ At 7:45 P.M. on October 6, 2005, three Boston police officers, Officers Cogavin, Cooley, and Tarantino, were in the area of Rosewood Street in the Mattapan section of Boston. One hour earlier, Officer Tarantino had received information from a confidential informant concerning shots at a house located a few blocks away, at 590 River Street, at about 6 P.M., and that an individual named "Bubs" was involved in this shooting, and could be found with three other men in a white car. Officer Tarantino passed this information on to Officer Cogavin, who in turn relayed it to Officer Cooley. Some of the officers, including Officer Cooley, knew that the name "Bubs" referred to Leroy Wells, and also knew that Wells had prior firearm arrests and arrests for crimes of violence. The three officers were in the Rosewood Street area checking for suspects connected to the reported 6 P.M. shooting. At about 7:45 P.M., Officer Cooley saw Wells and two other men enter a 2002 black Honda automobile as passengers. Officers Cooley and Cogavin followed the Honda, and determined through a check with the Registry of Motor Vehicles that the Honda was owned by a woman named Tykeia Samuels; they also learned that Samuels had a suspended license. Based on this information, and unable to observe the driver of the Honda, the officers stopped the car for a motor vehicle infraction.

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.² Officer Cooley then searched the driver's side and passenger's side front seat of the Honda, as well as the back seat. He did not find any marijuana or other contraband.

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 committing or are about to commit a crime. His suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984), and cases cited. Before the police officers stopped the Honda, they knew that its owner had a suspended license. Because they did not know at that time that the driver of the car was a man, this license information provided a reasonable suspicion to believe that the registered owner of the vehicle was driving with a suspended license.³ See Commonwealth v. Deramo, 436 Mass. 40, 44, 762 N.E.2d 815 (2002) ("the likelihood that the operator is the owner is strong enough to satisfy the reasonable suspicion standard").

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, 747 N.E.2d 1253 (2001). See Commonwealth v. Feyenord, 445 Mass. 72, 77, 833 N.E.2d 590 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1369, 164 L.Ed.2d 77 (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 b. Search of the Honda.⁴ "In general, a police search or seizure must be supported by a valid warrant.... However, it is well settled that, in certain `exigent circumstances' that make obtaining a warrant impracticable ... a search or seizure may be justified by probable cause." (Citations omitted.) Commonwealth v. Washington, 449 Mass. 476, 480, 869 N.E.2d 605 (2007). The Commonwealth bears the burden of proving "the existence of both probable cause to believe that the automobile contained contraband and of exigent circumstances to justify proceeding without a warrant." Commonwealth v. Santiago, 410 Mass. 737, 744, 575 N.E.2d 350 (1991). The exigent circumstance on which the Commonwealth relies is the inherent mobility of an automobile. According to the automobile exception to the warrant requirement, the search of the Honda was justified as long as the officers had probable cause to believe that there was contraband in the car. Commonwealth v. Motta, 424 Mass. 117, 123-124, 676 N.E.2d 795 (1997).

"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, 556 N.E.2d 69 (1990), quoting Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (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.⁵ "[T]he 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. Correia, 66 Mass.App. Ct. 174, 177, 845 N.E.2d 1210 (2006), quoting Commonwealth v. Kitchings, 40 Mass. App.Ct. 591, 596 n. 8, 666 N.E.2d 511 (1996). Although the odor of marijuana often has been considered in conjunction with other factors in establishing probable cause,⁶ we agree with the Appeals Court that the odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby. See Commonwealth v. Lawrence L., 439 Mass. 817, 823-824, 792 N.E.2d 109 (2003) (detection of strong smell of marijuana on clothes of juvenile while at school provided probable cause to search him); Commonwealth v. Correia, 66 Mass.App. Ct. at 177, 845 N.E.2d 1210. See also Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (identification of odor sufficiently distinctive to identify controlled substance by one qualified to know odor "might very well be found to be evidence of most persuasive character" to constitute probable cause).⁷

The defendant argues that the Commonwealth provided no evidence that Officer Cooley had sufficient...