Commonwealth v. Cruz

• Decision Date: 19 April 2011
• Docket Number: SJC–10738.
• Citation: 459 Mass. 459,945 N.E.2d 899
• Parties: COMMONWEALTHv.Benjamin CRUZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 459

945 N.E.2d 899

COMMONWEALTH

v.Benjamin CRUZ.

SJC–10738.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Dec. 9, 2010.Decided April 19, 2011.

Helle Sachse, Assistant District Attorney (Lauren Bernath Moore, Assistant District Attorney, with her) for the Commonwealth.Scott Michelman, of California (Jay Rorty, of California, & John Reinstein, Boston, with him) for the defendant.Michael D. Cutler & Steven S. Epstein, Georgetown, for National Organization for the Reform of Marijuana Laws, amicus curiae, submitted a brief.Paul R. Rudof & Ryan M. Schiff, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹IRELAND, J.

After a single justice of this court allowed the Commonwealth's application for an interlocutory appeal, we granted the defendant's application for direct appellate review in order to decide an issue of first impression concerning the impact, if any, G.L. c. 94C, §§ 32L–32N, inserted by St.2008, c. 387, §§ 2–4, which decriminalized possession of less than one ounce of marijuana, has on certain aspects of our search and seizure jurisprudence. The defendant, Benjamin Cruz, was charged with one count of possession of a class B controlled substance with the intent to distribute, G.L. c. 94C, § 32A ( a ); possession of a class B controlled substance, G.L. c. 94C, § 34; and committing a controlled substances violation in a school zone, G.L. c. 94C, § 32J. The police seized “crack” cocaine from the defendant, a passenger in a stopped automobile, after a police officer, detecting the odor of burnt marijuana inside the vehicle, issued an order for the defendant to exit it.

Prior to trial, the defendant filed a motion to suppress the crack cocaine, as well as an admission he made to the officer. After an evidentiary hearing, a judge in the West Roxbury Division of the Boston Municipal Court Department allowed the defendant's motion. The Commonwealth petitioned a single justice of this court arguing that the motion judge erred, as a matter of law, in granting the defendant's motion. Because we discern no permissible basis on which the police could order the defendant out of the automobile without at least some other additional fact beyond the mere odor of burnt marijuana to bolster a reasonable suspicion of actual criminal activity, we affirm the judge's allowance of the motion to suppress the admission and the crack cocaine, although on slightly different reasoning.

1. Facts. We summarize the facts as found by the judge, supplemented by uncontroverted facts from the record of the hearing.² Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007). On June 24, 2009, Officers Christopher Morgan and Richard Diaz were in the Hyde Square neighborhood of the Jamaica Plain section of Boston.³ Patrolling in plain clothes and an unmarked Ford Crown Victoria automobile,⁴ the officers drove down Sunnyside Street at approximately 5 p.m., and saw a vehicle parked in front of a fire hydrant. The vehicle's windows were rolled down and it was light outside. Inside, the officers could see a driver and the defendant, who was sitting in the front passenger seat. As the officers drove down the street, Officer Diaz saw the driver light a small, inexpensive cigar that is commonly known to mask the odor of marijuana smoke.

Both officers recognized the defendant as a neighborhood resident who lived on Sunnyside Street. Officer Morgan testified that he had previously seen the defendant smoking a marijuana “blunt,” but the defendant was not known to either officer as a dangerous person, involved in any gang-related activity or violence. Neither officer was aware that either the driver or the defendant had ever been arrested. In fact, Officer Diaz had spoken to the defendant, a nineteen year old man, on several previous occasions about remaining out of trouble. Diaz had suggested ways for the defendant to exempt himself from the “crowd” and encouraged him to do more than “hanging out.”

Pulling up next to the car, Officer Morgan asked the driver to explain why he was parked in front of the fire hydrant, a civil motor vehicle violation. See Traffic Rules and Regulations of the City of Boston art. 4, § 1(6) (2003). The driver replied that he was waiting for his uncle, who lived in a house on Sunnyside Street. While the officers were stopped next to the car, Officer Morgan saw the defendant smoking a cigar. At this point, both officers got out of their unmarked cruiser and walked toward the car. Officer Morgan approached the driver's side, and Officer Diaz went to the passenger side. From the driver's side, Officer Morgan could smell a “faint odor” of burnt marijuana.⁵

Officer Morgan noticed that the driver was “very nervous, had trouble breathing” and “it almost looked like he was panicking.” When asked whether he had been smoking marijuana, the driver replied that he had smoked “earlier in the day.” Morgan asked the driver if there was anything inside the car that the officers “should know about.” The driver responded, “No.” Meanwhile, Officer Diaz saw that the defendant appeared “nervous” and made little eye contact with Diaz, choosing to look straight ahead or down. Neither officer saw any contraband or weapons within plain view in the car. There was no evidence that either the driver or the defendant made any furtive gestures or threatening movements.⁶

The officers neither cited the driver for parking in front of a fire hydrant nor asked for his license and registration. Neither officer conducted any field sobriety tests to determine if the driver was presently under the influence of marijuana. Instead, the officers called for backup, and four additional officers arrived on the scene in two marked cruisers. Once backup arrived, and based on “the odor of marijuana and just the way they were acting,” both the driver and the passenger were ordered out of the car by Officers Morgan and Diaz.⁷ As the defendant

[945 N.E.2d 904 , 459 Mass. 463]

stepped out of the car, Diaz asked him if he had “anything on his person.” In the presence of the six police officers, the defendant told Diaz he had “a little rock for myself” in his pocket. Diaz reached into the defendant's pocket and retrieved the item, which Diaz estimated to be approximately four grams of crack cocaine. No Miranda warnings were given to either the defendant or the driver before the crack cocaine was seized.

The judge concluded that the police permissibly approached the car because it was parked in front of a fire hydrant, a civil traffic violation. She found, however, that the officers should not have ordered the defendant out of the car. The officers could not have reasonably feared for their safety considering the stop occurred during daylight, the defendant made no furtive or threatening movements, and the defendant was not known to the officers from previous arrests or a reputation for violence.

Further, the judge concluded that the officers could not have ordered the defendant out of the car based on the odor of burnt marijuana alone. She explained that, since the passage of G.L. c. 94C, § 32L, decriminalizing possession of one ounce or less of marijuana, the odor of burnt marijuana “coupled with the driver's statement that he had been smoking earlier in the day” suggested that any marijuana that remained would be less than one ounce.

Finally, the judge found that although G.L. c. 94C, § 32L, has no effect on the crimes of possession with intent to distribute or operating while under the influence of marijuana, “there was no probable cause to believe that any of those offenses were being committed.” Without probable cause that the defendant or the driver was committing any criminal offense, she concluded, the police were not justified in ordering the defendant out of the car.

2. Discussion. The Commonwealth argues that despite the decriminalization of possessing one ounce or less of marijuana, the odor of burnt marijuana may still provide the police with probable cause or, at least, reasonable suspicion that a crime is occurring, which justifies the exit order to the defendant. The Commonwealth further contends that once the defendant was validly ordered to get out of the car, the officer could properly ask whether he had any contraband on his person without the need for Miranda warnings.

“When reviewing the allowance of a motion to suppress, we show substantial deference to the judge's legal conclusions ... but independently review the application of constitutional principles to the facts” (citations omitted). Commonwealth v. Torres, 433 Mass. 669, 671–672, 745 N.E.2d 945 (2001). Although we have held in the past that the odor of marijuana alone provides probable cause to believe criminal activity is underway,⁸ we now reconsider our jurisprudence in light of the change to our laws. On November 4, 2008, voters approved St.2008, c. 387, §§ 2–4, pursuant to the provisions of art. 48, The Initiative, Part V, § 1, as amended by art. 81, § 2, of the Amendments to the Massachusetts Constitution. This initiative was codified at G.L. c. 94C, §§ 32L– 32N, and entitled, “An Act establishing a sensible State marihuana policy.” This act changed the status of the possession of one ounce or less of marijuana from a criminal to a civil offense. It became effective on December 4, 2008.⁹ Our analysis must give effect to the clear intent of the people of the Commonwealth in accord with art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.

a. Initiation of the stop. It is uncontested that the officers validly “stopped” the car for parking in front of a fire hydrant, a civil traffic violation. See Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) (officer may validly stop a vehicle committing a traffic violation); G.L. c. 90C, §...