Commonwealth v. Craan, SJC–11436.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LENK, J.
• Citation: 13 N.E.3d 569,469 Mass. 24
• Parties: COMMONWEALTH v. Anthony CRAAN.
• Docket Number: SJC–11436.
• Decision Date: 09 July 2014

469 Mass. 24
13 N.E.3d 569

COMMONWEALTH
v.
Anthony CRAAN.

SJC–11436.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted March 3, 2014.
Decided July 9, 2014.

13 N.E.3d 571

Zachary Hillman, Assistant District Attorney, for the Commonwealth.

Brian J. Anderson, Everett, for the defendant.

The following submitted briefs for amici curiae:

William W. Adams, Plainfield, for Ardil Innis.

Donald Bronstein, Committee for Public Counsel Services, Joshua Levy, Matthew Mazzotta, & Matthew R. Segal, for American Civil Liberties Union of Massachusetts & another.

Michael D. Cutler & Steven S. Epstein, Georgetown, for National Organization for the Reform of Marijuana Law.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

Opinion

LENK, J.

In this case, we are asked again to determine the effect of the 2008 ballot initiative decriminalizing possession of one ounce or less of marijuana (2008 initiative) on police authority to conduct warrantless searches of vehicles, this time in the context of a search effected on the basis of the odor of unburnt marijuana.¹

The defendant's vehicle was searched at a sobriety checkpoint on June 11, 2010, after a State police trooper smelled the odor of unburnt marijuana emanating

13 N.E.3d 572

from it. The search revealed both loose marijuana and plastic baggies containing marijuana residue, in addition to three “Ecstasy” pills (methylenedioxy methamphetamine) and several rounds of ammunition. The search was based on the odor of marijuana alone; the defendant exhibited no signs of impairment and, although issued a summons for criminal offenses, was permitted to drive away without being asked to submit to any field sobriety tests. Approximately two months later, however, a criminal complaint issued charging the defendant with various drug- and firearms-related offenses.

A judge of the Boston Municipal Court initially denied the defendant's motion to suppress the fruits of the search, namely, the marijuana, Ecstasy pills, and ammunition. Several months later, in light of Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899 (2011), the judge reconsidered her ruling and allowed the motion to suppress. A single justice of this court subsequently allowed the Commonwealth's application for leave to pursue an interlocutory appeal in the Appeals Court, and we transferred the case to this court on our own motion.

The Commonwealth maintains that the search was justified on three different grounds. First, it was lawful because the search was conducted incident to the defendant's arrest. Second, the

search was permissible because it was to prevent the defendant from smoking marijuana while driving. And, third, the search was lawful because it fell under the automobile exception to the warrant requirement, insofar as there was probable cause to believe that the defendant's vehicle contained evidence of a Federal crime. Considering this case in conjunction with our decision in Commonwealth v. Overmyer, 469 Mass. 16, 23, 11 N.E.3d 1054 (2014), we reject these contentions and affirm the judge's order allowing the motion to suppress.

1. Background. We summarize the facts found by the judge after an evidentiary hearing, supplemented by uncontested facts in the record. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). The only witness at that hearing was the State police trooper who conducted the search at the sobriety checkpoint. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).

In the early morning hours of June 11, 2010, State police were conducting a sobriety checkpoint² on Gallivan Boulevard in the Dorchester section of Boston.

13 N.E.3d 573

The testifying trooper was responsible for stopping every passing vehicle to determine whether the driver was operating it while under the influence of alcohol. One of the vehicles stopped was driven by the defendant. After the trooper identified himself, the defendant rolled down the driver's side window to speak with him, at which point the trooper smelled a strong odor of unburnt marijuana emanating from the vehicle.

The trooper asked the defendant to pull into the screening area, and, once there, asked the defendant whether there was any marijuana in the vehicle. The defendant responded that he and the vehicle's passenger “had just smoked some weed.” However, after the trooper explained that he smelled unburnt, rather than burnt, marijuana, the defendant opened the glove compartment to reveal a “small plastic bag” containing a substance that the trooper believed to be marijuana.³ At that point, the trooper ordered both the defendant and the passenger out of the vehicle and proceeded to pat frisk them.⁴

The trooper then performed a search of the vehicle, which uncovered, in the door on the driver's side, a device commonly used for grinding marijuana; three blue pills, later identified as Ecstasy; “some marijuana” in the center console; and, in the passenger compartment, plastic baggies which appeared to contain burnt marijuana residue. The trooper also searched the trunk, where he found rounds of .38 caliber ammunition.

At the conclusion of the search, the trooper did not arrest the vehicle's occupants, but rather issued summonses for criminal offenses and released them. A complaint subsequently issued against the defendant, charging him with illegal possession of ammunition, in violation of G.L. c. 269, § 10 (h ) (1) ; possession of a class D substance with the intent to distribute, in violation of G.L. c. 94C, § 32C (a ) ; and possession of a class B substance, in violation of G.L. c. 94C, § 34.

The judge determined that, based on his experience, the trooper was qualified to recognize the odor of marijuana.⁵ See Commonwealth v. Garden, 451 Mass. 43, 48–49, 883 N.E.2d 905 (2008). The judge went on to rule that, because the passage of the 2008 initiative did “not change the probable cause analysis,” the scent of marijuana still provided “probable cause to believe that marijuana is nearby.” Although the judge found that there was no basis to believe that more than one ounce of marijuana was present in the vehicle, she

nevertheless concluded that the warrantless search was justified under the automobile exception to the warrant requirement. The odor of unburnt marijuana provided the basis for the search; although the odor did not suggest the presence of a particular quantity of marijuana, it did indicate the presence of some marijuana, which, the judge stated, was still unlawful contraband after the 2008 initiative. Therefore, the judge initially denied the defendant's motion to suppress.

13 N.E.3d 574

The judge's initial ruling, however, predated our decision in Commonwealth v. Cruz, 459 Mass. 459, 472, 475–476, 945 N.E.2d 899 (2011), in which we held that, in view of the decriminalization of marijuana occasioned by the 2008 initiative, “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity,” nor can it give rise to probable cause to search a vehicle under the automobile exception to the warrant requirement. After the release of this court's decision in that case, the defendant moved for reconsideration of the judge's ruling on his motion to suppress. The judge allowed the motion for reconsideration and thereafter reversed her initial ruling.

2. Discussion. “Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.” Commonwealth v. Gouse, 461 Mass. 787, 792, 965 N.E.2d 774 (2012). “When a search is conducted without a warrant, the burden is on the Commonwealth to show that the search ‘falls within a narrow class of permissible exceptions' to the warrant requirement.” Commonwealth v. Perkins, 465 Mass. 600, 603, 989 N.E.2d 854 (2013), quoting Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974).

Since the enactment of the 2008 initiative decriminalizing the possession of one ounce or less of marijuana, we have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant. See Commonwealth v. Cruz, supra at 475–476, 945 N.E.2d 899. As we hold in a companion to this case, neither can such probable cause rest solely on the odor of unburnt marijuana. See Commonwealth v. Overmyer, supra at 23, 11 N.E.3d 1054. The Commonwealth, however, offers several different justifications for the presumptively unreasonable search of the defendant's vehicle, separate and apart from the odor of marijuana alone. We address each in turn.⁶

a. Search incident to arrest. The first rationale proffered by the Commonwealth is that the trooper had probable cause to arrest the defendant for operating his vehicle while under...