Commonwealth v. Jackson

• Decision Date: 05 April 2013
• Docket Number: SJC–11319.
• Citation: 464 Mass. 758,985 N.E.2d 853
• Parties: COMMONWEALTH v. Kiiyan JACKSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 758

985 N.E.2d 853

COMMONWEALTH

v.Kiiyan JACKSON.

SJC–11319.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 6, 2012.

Decided April 5, 2013.

Ilse Nehring for the defendant.

Zachary Hillman, Assistant District Attorney, for the Commonwealth.

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

DUFFLY, J.

After police officers observed the defendant sharing what appeared to be a marijuana cigarette with two others on a park bench, they seized the cigarette and conducted a warrantless search of the defendant's person and backpack. In the backpack, they discovered a substance resembling marijuana packaged in small plastic bags, with a total weight of less than one ounce. The defendant was arrested and charged with possession of a class D substance (marijuana) with intent to distribute, G.L. c. 94C, § 32C ( a ), and a corresponding drug violation in or near a school or park, G.L. c. 94C, § 32J.

The defendant moved to suppress the evidence obtained from the warrantless search of his person and backpack, contending that the search violated the Fourth and Fourteenth Amendments to the United States Constitution; arts. 12 and 14 of the Massachusetts Declaration of Rights; and G.L. c. 276, § 1. After an evidentiary hearing, a judge in the Boston Municipal Court denied the motion, and also denied the defendant's motion for reconsideration. A single justice of this court allowed the defendant's application for leave to file an interlocutory appeal in the Appeals Court, pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We transferred the case to this court on our own motion.

We conclude that the search was not a lawful search incident to arrest, because the officers had no basis to arrest the defendant before searching him. The officers' observation of the defendant and two others passing what appeared to be a marijuana cigarette back and forth did not provide probable cause to believe the defendant was committing a crime. Therefore, the defendant's motion to suppress should have been allowed.

1. Background. We summarize the motion judge's findings of fact, supplemented by certain undisputed facts introduced by the testimony of officers whom the motion judge implicitly found to be credible. 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 “Boston Freedom Rally,” also known as “Hempfest,” was an annual event held to promote the legalization of marijuana. Thousands of people attended the 2010 Hempfest on Boston Common on Saturday, September 18, 2010. Officers Patrick Byrne and Brian Mahoney of the Boston police department's drug control unit were assigned to patrol Hempfest in plain clothes in order to enforce the drug laws.

At approximately 1:45 p.m., Byrne and Mahoney observed three men sitting on a bench, passing a cigarette back and forth. The officers detected the smell of burnt marijuana emanating from the cigarette and approached the three men, one of whom was the defendant. Byrne and Mahoney identified themselves as police officers, and Mahoney seized the cigarette from one of the defendant's companions. Mahoney asked the men for identification in order to issue civil citations for the possession of one ounce or less of marijuana. See G.L. c. 94C, § 32L.

The defendant stood up, and Byrne observed part of a plastic bag protruding from the defendant's left pocket. Byrne pulled the bag from the defendant's pocket and examined its contents; the bag contained a substance resembling marijuana. Mahoney conducted a patfrisk of the defendant, recovering a black folding knife from the defendant's other pocket. During the patfrisk, Mahoney attempted to move a backpack at the defendant's feet. In response, the defendant told Mahoney, “Don't touch my bag.” Notwithstanding the defendant's request, Mahoney lifted the backpack and opened it. According to Mahoney, the backpack smelled like marijuana, but he was unsure how much marijuana might have been inside.

Inside the backpack, Mahoney discovered numerous plastic bags with the corners torn off, which Mahoney believed to be consistent with drug distribution. Mahoney handed the backpack to Byrne, who searched the backpack further and discovered a plastic container, which he opened. Within that container, he found a large plastic bag and approximately ten small plastic bags containing a substance resembling marijuana. The total weight of the substances seized was 23.5 grams, which is less than one ounce.¹

2. Discussion. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law.” Commonwealth v. Phifer, 463 Mass. 790, 793, 979 N.E.2d 210 (2012), quoting Commonwealth v. Anderson, 461 Mass. 616, 619, 963 N.E.2d 704, cert. denied, ––– U.S. ––––, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012). Where a search and arrest were made without a warrant, “the Commonwealth bears the burden of establishing that the actions of the police met constitutional standards.” Commonwealth v. Chown, 459 Mass. 756, 763, 948 N.E.2d 394 (2011), quoting Commonwealth v. Santaliz, 413 Mass. 238, 240, 596 N.E.2d 337 (1992).

a. Search incident to lawful arrest. A search incident to a lawful arrest is one of the few “well settled” exceptions to the general rule that warrantless searches are per se unreasonable under the Fourth Amendment and art. 14. See Commonwealth v. Phifer, supra, quoting United States v. Robinson, 414 U.S. 218, 224, 233, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The legality of the search depends on the legality of the arrest, although “the search may precede the formal arrest so long as probable cause [to arrest] exists independent of the results of the search,” and the arrest and search are “roughly contemporaneous.” Commonwealth v. Washington, 449 Mass. 476, 481, 869 N.E.2d 605 (2007). A lawful arrest requires the existence of probable cause to believe that the individual arrested is committing or has committed a criminal offense. See Commonwealth v. Chown, supra.

This case turns on whether Officers Byrne and Mahoney lawfully could have arrested the defendant after observing him share with his companions a cigarette that the officers reasonably suspected to contain marijuana. If not, their search of the defendant and his backpack cannot be justified as a search incident to a lawful arrest. The Commonwealth argues that the officers could have arrested the defendant because they had probable cause to believe that he had or was about to commit the crime of marijuana distribution, G.L. c. 94C, § 32C ( a ).² This argument requires us to resolve the issue reserved in Commonwealth v. Keefner, 461 Mass. 507, 515 & n. 4, 961 N.E.2d 1083 (2012)( Keefner ): whether the voters' adoption of “An Act establishing a sensible State marihuana policy” (2008 initiative) decriminalized the social sharing of one ounce or less of marijuana by modifying which acts constitute distribution under G.L. c. 94C, § 32C ( a ) (distribution statute). See St. 2008, c. 387; Keefner, supra. The 2008 initiative, “in the main, changed the status of the possession of one ounce or less of marijuana from a criminal offense to a civil offense.” Id. at 509, 961 N.E.2d 1083.

We interpret the 2008 initiative, codified in relevant part at G.L. c. 94C, § 32L, “as we would any other statute adopted in the normal legislative process.” Commonwealth v. Cruz, 459 Mass. 459, 471 n. 22, 945 N.E.2d 899 (2011)( Cruz ). We interpret a statute according to “all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975). See Keefner, supra at 511, 961 N.E.2d 1083. “In discerning a statute's meaning, ‘[w]e interpret the words used in a statute with regard to both their literal meaning and the purpose and history of the statute within which they appear.’ ” Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6, 785 N.E.2d 346 (2003), quoting Massachusetts Hosp. Ass'n v. Department of Med. Sec., 412 Mass. 340, 346, 588 N.E.2d 679 (1992). “Significantly, a statute must be interpreted ‘as a whole’; it is improper to confine interpretation to the single section to be construed.” Keefner, supra at 511, 961 N.E.2d 1083, quoting Wolfe v. Gormally, 440 Mass. 699, 704, 802 N.E.2d 64 (2004).

As a threshold matter, G.L. c. 94C, § 32L, third par., states that the decriminalization of small amounts of marijuana shall not “be construed to repeal or modify” the following four categories of existing laws: those concerning (1) the operation of motor vehicles “or other actions taken while under the influence of” marijuana, (2) unlawful possession of prescription forms of marijuana, (3) possession of more than one ounce of marijuana, and (4) the “selling, manufacturing or trafficking” in marijuana. We held in Keefner, supra at 514–515, 961 N.E.2d 1083, that this list “cannot be construed as exhaustive,” and that distributing one ounce or less of marijuana remains a crime. However, we explicitly left open the possibility that the 2008 initiative modified the definition of what constitutes distribution under the distribution statute, such that the social sharing of marijuana is no longer a crime. See id. at 515, 961 N.E.2d 1083.³

We begin with an examination of the distribution statute. Certain relevant terms are defined by the statute: “[d]istribute” means “to deliver other than by administering or dispensing a controlled substance”; “[d]eliver” means “to...