Commonwealth v. Rodriguez, SJC–11814.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: BOTSFORD, J.
• Citation: 37 N.E.3d 611,472 Mass. 767
• Parties: COMMONWEALTH v. Elivette RODRIGUEZ.
• Docket Number: SJC–11814.
• Decision Date: 22 September 2015

472 Mass. 767
37 N.E.3d 611

COMMONWEALTH
v.
Elivette RODRIGUEZ.

SJC–11814.

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 5, 2015.
Decided Sept. 22, 2015.

37 N.E.3d 612

John L. Calcagni, III, for the defendant.

Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

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

Opinion

BOTSFORD, J.

This case, in which the defendant appeals from the denial of her motion to suppress, centers on a motor vehicle stop based on a police officer's detection of an odor of burnt marijuana coming from the vehicle. It requires us to evaluate further the impact of G.L. c. 94C, §§ 32L –32N, inserted by St. 2008, c. 387,

§§ 2–4, which decriminalized possession of one ounce or less of marijuana. For the reasons discussed hereafter, we conclude that at least in a stop such as this one, where there was at best reasonable suspicion to believe that a civil marijuana infraction was occurring, but not probable cause, the stop was impermissible. Accordingly, the order denying the defendant's motion to suppress must be reversed.

37 N.E.3d 613

1. Background. To provide context, we summarize the evidence presented at the hearing on the defendant's motion to suppress.¹ On the evening of April 26, 2012, Detective Daniel Amaral of the New Bedford police department was driving an unmarked police cruiser assisting a narcotics surveillance team of police officers when he came upon a motor vehicle that he had stopped once before. During the earlier stop, Amaral had arrested the woman who normally drove that vehicle for heroin possession. He knew that the surveillance team was interested in the vehicle because of its connection to the earlier drug-related arrest. Accordingly, he followed the vehicle and thereafter received instruction from the surveillance team to pull it over.²

As Amaral followed the vehicle, he detected an odor of burnt marijuana coming from it.³ Based on the odor, and without having seen the driver of the vehicle commit any traffic violations, Amaral pulled the vehicle over and approached the driver's side. The driver, a male, held in his right hand what Amaral recognized as a marijuana cigar. Amaral asked the driver whether the cigar was what was causing the odor, and the driver responded that it was. Amaral then confiscated the cigar and asked for the driver's

license and registration. The stop continued, and in the course of it, police discovered a plastic bag in the vehicle containing sixty Percocet pills.⁴ The defendant, a passenger in the vehicle at the time of the stop, was charged with possession with intent to distribute a class B substance in violation of G.L. c. 94C, § 32A (a ),⁵ conspiracy to violate the drugs laws under G.L. c. 94C, § 40, and a drug violation near a school or park under G.L. c. 94C, § 32J —all in connection with the pills.

On November 30, 2012, the defendant moved to suppress evidence of the pills. The motion judge held an evidentiary hearing on May 3, 2013; the only issue addressed was the propriety of the motor vehicle stop. Following the hearing, the judge concluded that the odor of burnt marijuana, coupled with other “suspicious

37 N.E.3d 614

activity implicating but not rising to drug activity” involving the vehicle, justified the stop. A single justice of this court granted the defendant's request for leave to pursue an interlocutory appeal of the order denying the motion to suppress, and directed the appeal to be heard in the Appeals Court. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996); G.L. c. 211, § 4A. We transferred the case from the Appeals Court on our own motion.

2. Discussion. “When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004). See Commonwealth v. Craan, 469 Mass. 24, 26, 13 N.E.3d 569 (2014).

In 2008, as a result of an initiative petition adopted by the voters, possession of one ounce or less of marijuana changed from being a criminal to a civil offense in the Commonwealth. See G.L. c. 94C, §§ 32L –32N. See also Commonwealth v. Cruz, 459 Mass. 459, 470, 945 N.E.2d 899 (2011). As a consequence of the change, this court has concluded that once police have validly stopped a vehicle for a reason independent of marijuana, the odor of burnt

marijuana alone does not create probable cause or even a reasonable suspicion of criminal activity sufficient to justify ordering the vehicle's occupants to get out of the vehicle. See Cruz, supra at 472, 476, 945 N.E.2d 899. We also have concluded that the odor of either burnt or unburnt marijuana does not support a finding of probable cause to search a vehicle without a warrant. See Commonwealth v. Overmyer, 469 Mass. 16, 23, 11 N.E.3d 1054 (2014) ; Cruz, supra at 475–476, 945 N.E.2d 899. See also Craan, 469 Mass. at 29–35, 13 N.E.3d 569 ; Commonwealth v. Daniel, 464 Mass. 746, 751–757, 985 N.E.2d 843 (2013). Recognizing the changed status of possession of small quantities of marijuana, the Commonwealth concedes that in the present case, the odor of burnt marijuana, even when combined with the other limited indicia of a drug transaction that preceded the vehicle stop, did not amount to reasonable suspicion of criminal activity that would have justified the police in stopping the vehicle for investigative purposes. Nonetheless, because c. 94C, § 32L, simply decriminalizes the possession of one ounce or less of marijuana and replaces the criminal penalty with a civil penalty for such possession,⁶ the Commonwealth analogizes the stop that occurred here to routine stops of automobiles for civil traffic violations. Pursuing the analogy, the Commonwealth urges us to affirm the order denying the defendant's motion to suppress on the ground that, just as an officer may stop a motor vehicle to issue a citation for a civil traffic offense, an officer may do so in order to issue a civil citation for marijuana possession.⁷

37 N.E.3d 615

Because both the Commonwealth and the defendant premise much of their arguments on the statutes that establish procedures for issuing citations for traffic violations and for civil marijuana infractions, we begin our analysis with a review of those statutes. General Laws c. 90C, §§ 2 and 3(A), authorize police to issue

citations for motor vehicle traffic violations, including civil infractions.^{8 , 9} The Commonwealth argues, and the defendant agrees, that although these statutes contain no express language regarding police authority to stop moving vehicles for the purpose of issuing citations for civil traffic violations, such stops have been permitted. See Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) (“Where police have observed a traffic violation, they are warranted in stopping a vehicle”). See also Commonwealth v. Feyenord, 445 Mass. 72, 75, 833 N.E.2d 590 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006) (permitting vehicle stop based on inoperable headlight); Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E.2d 717 (1995) (permitting

stop for defective taillight).¹⁰ The Commonwealth contends that, similar to these traffic violation statutes, G.L. c. 94C, § 32N,¹¹ provides

37 N.E.3d 616

a mechanism for issuing civil citations for marijuana possession—specifically, through G.L. c. 40, § 21D, which governs noncriminal disposition of certain municipal enactments¹² —and that this mechanism should be understood as also authorizing police to stop vehicles to issue civil marijuana citations. Furthermore, the Commonwealth notes that in order for

a police officer to be able to issue a citation for marijuana possession to a person in a moving automobile and still comply with the requirements of c. 40, § 21D, the officer must be able to order the car to stop.¹³

Focusing first on our traffic violation statutes, we agree with the position of both the Commonwealth and the defendant that because many of these laws pertain specifically to moving vehicles, and G.L. c. 90C, § 2, requires an officer to give a copy of a traffic citation to the violator and to ask that person to sign the citation, c. 90C, §§ 2 and 3(A), implicitly authorize police officers to stop motor vehicles in order to issue traffic citations. Otherwise, it would be impossible for police to issue citations for moving traffic violations. Moreover, many of the traffic violation laws serve a public safety purpose, and allowing police to stop moving vehicles that are violating them in order to issue traffic citations is one mechanism of promoting safety on our roads. The parties' reading of c. 90C, §§ 2 and 3(A), is consistent with this purpose.

Like G.L. c. 90C, §§ 2 and 3(A), neither G.L. c. 94C, § 32N, nor G.L. c. 40, § 21D, says anything about police authority to stop moving vehicles for the purpose of

37 N.E.3d 617...