Commonwealth v. Locke

• Decision Date: 07 June 2016
• Docket Number: No. 15–P–552 , No. 15–P–553.,15–P–552
• Citation: 51 N.E.3d 484,89 Mass.App.Ct. 497
• Parties: COMMONWEALTH v. Andrew K. LOCKE (and a companion case).
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 497

51 N.E.3d 484

COMMONWEALTH

v.Andrew K. LOCKE (and a companion case¹ ).

No. 15–P–552

No. 15–P–553.

Appeals Court of Massachusetts, Worcester.

Argued Feb. 4, 2016.

Decided June 7, 2016.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.

Barry A. Bachrach for Andrew K. Locke.

Sean J. Gallagher for Tanik S. Kerr.

Present: CYPHER, WOLOHOJIAN, & NEYMAN, JJ.

CYPHER, J.

Complaints issued in the District Court charging the defendants, Andrew K. Locke and Tanik S. Kerr, with trafficking in fifty pounds or more of marijuana, G.L. c. 94C, § 32E(a ), and conspiracy to traffic in marijuana, G.L. c. 94C, § 40.² The Commonwealth appeals from the allowance of the defendants' motions to suppress evidence and from the denials of its motions for reconsideration, arguing that the judge committed legal error when he concluded that “the odor of marijuana does not constitute reasonable suspicion of criminal activity or probable cause to believe that more than one ounce of marijuana” was present in the defendants' vehicle. We are constrained to affirm the orders of suppression. See Commonwealth v. Cruz, 459 Mass. 459, 472, 945 N.E.2d 899 (2011) (Cruz ); Commonwealth v. Overmyer, 469 Mass. 16, 17, 11 N.E.3d 1054 (2014) (Overmyer ); Commonwealth v. Craan, 469 Mass. 24, 13 N.E.3d 569 (2014) (Craan ).

We summarize the facts found by the judge after an evidentiary hearing, at which State police Troopers Scott Driscoll and Christopher Coscia both testified, supplemented by uncontested facts in the record. Craan, supra at 26, 13 N.E.3d 569. On December 17, 2011, Trooper Driscoll saw a white minivan make an erratic lane change on Route 84 in Sturbridge, nearly causing a collision. Trooper Driscoll continued to watch the minivan and clocked it in excess of the posted speed limits as it approached the tollbooths on Route 84. After the minivan passed through the tollbooth, Trooper Driscoll stopped the minivan. He did not see any furtive movements, no one attempted to flee, and he did not know how many people were in the minivan because the windows were tinted and had interior shades that were pulled down.

Trooper Driscoll approached the minivan on the passenger side. He spoke through the open window and explained the reason for the stop. He immediately detected the odor of unburned marijuana.³ Locke, who was in the driver's seat, appeared nervous, his chest was heaving, and he talked excessively. The passenger, Kerr, sat quietly and stared straight ahead. Trooper Driscoll asked Locke for his driver's license and registration.

Locke produced an Arizona driver's license and a rental contract in the name of “Robert Spinks.” The rental contract indicated that the minivan had been rented two days earlier in Rhode Island. Locke explained that Robert Spinks was his uncle and that Locke was visiting Spinks in Connecticut and had borrowed the minivan from him so that he could visit his daughter in the Mattapan section of Boston. Trooper Driscoll asked Locke if he was an authorized driver on the rental agreement, but Locke did not know.⁴

Trooper Driscoll noticed several air fresheners in the minivan in various locations. Trooper Driscoll knew from his training and experience that air fresheners are often used to mask the odor of narcotics in a vehicle. Trooper Driscoll asked Kerr his name; Kerr told him his name and said that he was also from Arizona, but that he did not have a license or an identification card with him.

Trooper Driscoll returned to his cruiser with the documents Locke had given him and called for backup. Trooper Scott Shea arrived several minutes later, and Driscoll instructed him to call for a drug-detection canine unit.

Trooper Driscoll went to the driver's side of the minivan and asked Locke to step out of the vehicle and pat frisked him for the trooper's own safety. He did not find anything. Trooper Driscoll explained to Locke that he was concerned because Locke was driving a rental vehicle but his name was not on the rental contract as an authorized driver and that there was an odor of marijuana. Trooper Driscoll explained the law regarding possession of marijuana and asked him if he was in possession of any marijuana or if he had smoked marijuana earlier that day in the minivan. Locke stated that he was not in possession of marijuana but that he and Kerr had smoked some earlier in the day. Trooper Driscoll told him that he had a canine unit several minutes away and that he was going to have the dog sniff the minivan. Trooper Driscoll had Locke sit in the back of his cruiser for the sake of the troopers' safety. He was not handcuffed.

Troopers Driscoll and Shea then approached the passenger side of the minivan and asked Kerr to step out. Trooper Driscoll pat frisked Kerr and felt a semisolid bulge or bundle in his jacket. He asked Kerr what it was, and Kerr said it was cash. At Trooper Driscoll's request, he showed Driscoll the cash and said that it was about $3,500 that his sister had given him for Christmas shopping. Trooper Driscoll asked Kerr about the odor of marijuana, and Kerr denied that there was an odor of marijuana coming from the minivan. He also denied that he had smoked marijuana earlier with Locke. Trooper Driscoll asked Kerr to sit on the guardrail, but he requested to wait in the rear of Shea's cruiser.

After several more minutes, Trooper Coscia from the canine unit arrived. The dog made a positive hit for narcotics near the rear lift gate of the minivan. When Trooper Coscia opened the door to the minivan, he noticed that it was “quite stinky, the smell of a lot of marijuana.” The troopers conducted a search of the vehicle and discovered seven fresh bundles of marijuana, well over an ounce, in the rear cargo area, located under a tarp or floor mat. After advising them of the Miranda rights, the troopers arrested Locke and Kerr. Kerr volunteered that he should not be arrested because he was just a passenger. Trooper Driscoll replied that there was no possible way he could not have noticed 159 pounds of marijuana in the back of the minivan.⁵

There was too much marijuana to fit into the cruisers, so Trooper Driscoll called for a tow truck to take the minivan with the marijuana to the State police barracks to inventory the contents pursuant to the State police written inventory policy.⁶

The Commonwealth argues that the judge erred when he concluded that the search of the defendant's vehicle was not supported by reasonable suspicion or probable cause. The Commonwealth contends that, although the judge correctly characterized the Supreme Judicial Court's holding regarding the conclusions that may be drawn from the odor of marijuana, in this case there was more than the mere odor of marijuana.

We review to determine whether the judge correctly applied the constitutional principles to the facts as found.⁷ Commonwealth v. Lawson, 79 Mass.App.Ct. 322, 323, 945 N.E.2d 976 (2011). Possession of one ounce or less of marijuana is a civil, but not a criminal, violation. Cruz, supra at 464, 945 N.E.2d 899. Commonwealth v. Fontaine, 84 Mass.App.Ct. 699, 705, 3 N.E.3d 82 (2014). See G.L. c. 94C, §§ 32L –32N. The odor of burned or unburned marijuana, without more, will not justify the warrantless search of a vehicle. Overmyer, supra at 17, 11 N.E.3d 1054. See Craan, supra at 27–30, 13 N.E.3d 569 (improper search of automobile where search was based on odor of marijuana alone, defendant exhibited no signs of impairment, and, although summonses issued for criminal offenses, defendant was permitted to drive away without being asked to submit to any field sobriety tests).

We begin by considering the validity of the traffic stop and the incremental progression of the police activity. There is no question that the initial stop of the minivan was proper. Commonwealth v. Torres, 433 Mass. 669, 673, 745 N.E.2d 945 (2001) (where police have observed traffic violation, they are warranted in stopping vehicle). Detaining a vehicle for a motor vehicle infraction, however, must “last no longer than reasonably necessary to effectuate the purpose of the stop.” Commonwealth v. Garden, 451 Mass. 43, 46, 883 N.E.2d 905 (2008), quoting from Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 643, 747 N.E.2d 1253 (2001). See Commonwealth v. King, 389 Mass. 233, 244, 449 N.E.2d 1217 (1983) (once officers approached car, they were required to complete parking citation process and, barring other reasons to detain occupants, leave them free from further police restraint).

Although the initial stop was valid, the exit orders were not. As the judge noted, Trooper Driscoll did not observe any furtive movements, weapons, contraband, or other activity to suggest that there was criminal activity or danger to the officers or others. Upon review, we ask whether a reasonably prudent person in the police officer's position would be warranted in the belief that the safety of the police or that of other persons was in danger. Commonwealth v. Gonsalves,

429 Mass. 658, 664, 711 N.E.2d 108 (1999). To support an order to exit a vehicle, the officer need not point to specific facts that the occupants are armed and dangerous; rather, the officer need only point to some fact or facts in the totality of the circumstances that would create a “reasonable suspicion of danger” that would warrant an objectively reasonable officer to secure the scene in a more effective manner by ordering the occupants out of the vehicle. Commonwealth v. Feyenord, 445 Mass. 72, 75–76, 833 N.E.2d 590 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006). See Commonwealth v. Cardoso, 46 Mass.App.Ct. 901, 902, 702 N.E.2d 398 (1998) (fidgeting around and avoiding eye contact were not enough to order operator out of car).

Here, there is no indication in the record that Locke's driver's license was invalid. There is also nothing in the record to support the conclusion that the fact that the minivan was a rental vehicle but that Locke's name was not...