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SJC-11436
COMMONWEALTH vs. ANTHONY CRAAN.
Suffolk. March 3, 2014. - July 9, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.
Controlled Substances. Narcotic Drugs. Constitutional Law,
Narcotic drugs, Search and seizure, Investigatory stop,
Probable cause. Search and Seizure, Motor vehicle,
Threshold police inquiry, Probable cause, Search incident
to lawful arrest. Threshold Police Inquiry. Probable
Cause. Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on August 6, 2010.
A pretrial motion to suppress evidence was heard by
Rosalind Henson Miller, J., and a motion for reconsideration was
also heard by her.
An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
Brian J. Anderson for the defendant.
The following submitted briefs for amici curiae:
2
William W. Adams 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 for National
Organization for the Reform of Marijuana Law.
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 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
1
We acknowledge the amicus briefs submitted on behalf of
the defendant by the American Civil Liberties Union of
Massachusetts and the Committee for Public Counsel Services; the
National Organization for the Reform of Marijuana Law; and Ardil
Innis.
3
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 (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, ante , (2014), we
reject these contentions and affirm the judge's order allowing
the motion to suppress.
4
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 (2007), S.C., 450 Mass. 818 (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 (2004), quoting Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002).
In the early morning hours of June 11, 2010, State police
were conducting a sobriety checkpoint 2 on Gallivan Boulevard in
the Dorchester section of Boston. The testifying trooper was
responsible for stopping every passing vehicle to determine
2
In order to pass constitutional muster, "the selection of
motor vehicles to be stopped [at a sobriety checkpoint] must not
be arbitrary, safety must be assured, motorists' inconvenience
must be minimized and assurance must be given that the procedure
is being conducted pursuant to a plan devised by law enforcement
supervisory personnel." Commonwealth v. McGeoghegan, 389 Mass.
137, 143 (1983). See Delaware v. Prouse, 440 U.S. 648, 663
(1979). No evidence was adduced at the hearing concerning the
existence of a protocol governing the sobriety checkpoint in
question, or whether any such protocol addressed the use of
marijuana as well as alcohol. In any event, however, the
defendant did not challenge the legality of the sobriety
checkpoint below or on appeal. We assume for the sake of
discussion that the checkpoint met constitutional requirements,
and deem any arguments to the contrary waived. See, e.g., Carey
v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issues not
raised or argued below waived on appeal).
5
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
3
The trooper did not testify whether he believed that the
bag contained more or less than one ounce of marijuana, and no
other evidence as to the weight of the marijuana was before the
judge.
4
No evidence was seized as a result of this pat frisk.
6
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 (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
5
The trooper testified that, over his five years of service
for the State police, he encountered marijuana "on a very
regular basis," and had made approximately twenty or twenty-five
arrests related to marijuana. He also testified that, since
2008, he had issued between twenty and thirty civil citations
for possession of marijuana.
7
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.
The judge's initial ruling, however, predated our decision
in Commonwealth v. Cruz, 459 Mass. 459, 472, 475-476 (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 (2012).
8
"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 (2013), quoting
Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (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. 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 . 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
6
We focus primarily on the lawfulness of the search of the
defendant's vehicle, rather than the exit order, because it was
the search that yielded the evidence sought to be suppressed.
However, because, as the judge found, the basis for the search
was the odor of unburnt marijuana, and there was no other reason
to believe that a criminal amount of marijuana was present in
the vehicle, there was no reasonable suspicion of criminal
activity warranting an exit order. See Commonwealth v.
Overmyer, ante , (2014); Commonwealth v. Cruz, 459 Mass.
459, 472 (2011). The other permissible grounds for an exit
order similarly were absent: there was no indication that the
trooper's safety was threatened, nor, as shall be discussed
infra, was the exit order justified "to facilitate an
independently permissible warrantless search of the car under
9
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 the influence of marijuana, and therefore the search was
permissible as a search incident to arrest. This argument,
however, overlooks a crucial fact: neither the defendant nor
his passenger was arrested. 7
A search incident to arrest, as the name suggests, may be
effected without a warrant when an arrest has taken place, in
order to "remove any weapons that the [arrestee] might seek to
use in order to resist arrest or effect his escape" or "to
search for and seize any evidence on the arrestee's person in
order to prevent its concealment or destruction." Chimel v.
California, 395 U.S. 752, 762-763 (1969). See Commonwealth v.
Santiago, 410 Mass. 737, 743 (1991). Although a search may
precede a formal arrest, see id. at 742, quoting Commonwealth v.
Brillante, 399 Mass. 152, 154 n.5 (1987), the search and the
arrest "must be roughly contemporaneous." Commonwealth v.
Washington, 449 Mass. 476, 481 (2007).
the automobile exception to the warrant requirement." See
Commonwealth v. Cruz, supra at 467.
7
Nor, for that matter, was the defendant subsequently cited
for or charged with operating his vehicle while under the
influence.
10
Where no arrest is underway, the rationales underlying the
exception do not apply with equal force. Indeed, "[t]o permit a
search incident to arrest where the suspect is not arrested
until much later, or is never arrested, would sever this
exception completely from its justifications" and effectively
"create a wholly new exception for a 'search incident to
probable cause to arrest.'" Commonwealth v. Washington, supra
at 482, citing Commonwealth v. Alvarado, 420 Mass. 542, 554
(1995). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690
(1984), and cases cited ("Detentions for frisking, questioning,
routine traffic stops, and the like, where the detainee is
released after the police business is transacted, are treated as
'"seizures" of the person,' subject to Fourth Amendment scrutiny
. . . , but are differentiated from 'formal,' or 'custodial,'
arrests, the custodial aspect of which serves as the theoretical
justification for the incident search" [citations omitted]).
Given that it lacked the critical element of an arrest, the
search of the defendant's vehicle cannot be sustained as a
search incident to arrest.
In any event, the testimony at the motion hearing would not
have supported a finding of probable cause to arrest the
defendant for operating a motor vehicle while under the
11
influence of marijuana. 8 There was no evidence that the
defendant bore any of the classic indicia of impairment, nor did
the trooper administer a field sobriety test in order to gauge
the defendant's level of impairment, notwithstanding the fact
that the vehicle had been stopped at a sobriety checkpoint. Cf.
Commonwealth v. Daniel, 464 Mass. 746, 756-757 (2013) ("[T]he
Commonwealth elicited no testimony that [the defendant] showed
any signs of impairment during [her] encounter [with police].
The officer did not testify that [the defendant's] eyes were red
or glassy, that her speech or movements were unusual, or that
her responses to questioning were inappropriate or
uncooperative. He did not perform any tests to assess [the
defendant's] physical and mental acuity"[footnote omitted]).
There was likewise no evidence that the defendant had been
driving erratically; indeed, the defendant's vehicle was stopped
pursuant to a systematic effort to stop every passing
automobile, and no other individualized reason for the stop was
given. Contrast Commonwealth v. Bartlett, 465 Mass. 112, 117-
118 (2013) (police officer was justified in stopping defendant's
vehicle to determine whether he was operating it while under
influence of drugs or alcohol, where vehicle was observed
8
The 2008 initiative explicitly did not alter statutes
relating to operating a motor vehicle while under the influence
of marijuana. See G. L. c. 94C, § 32L; Commonwealth v. Daniel,
464 Mass. 746, 754 (2013).
12
swerving erratically). Although the defendant admitted to
having smoked marijuana earlier, the exact time at which he had
done so was not clear, and, prior to searching his vehicle, the
trooper observed no drug paraphernalia used to consume
marijuana. Far short of arresting the defendant for operating a
motor vehicle while under the influence of marijuana, the
trooper in fact released the defendant, allowing him to continue
driving. 9
Therefore, because the defendant was not arrested, and
because the trooper lacked probable cause to arrest him for
operating a motor vehicle while under the influence of
marijuana, the search of the defendant's vehicle was not
justified as a search incident to arrest.
b. Search in order to prevent defendant from smoking
marijuana while driving. The Commonwealth contends that the
trooper was "duty-bound" to search the defendant's vehicle to
ensure that he would not "smoke additional marijuana while
9
The Commonwealth conceded at oral argument that evidence
that the defendant was operating while under the influence of
marijuana was "scant." The Commonwealth instead pursued the
novel claim that the State trooper was justified in searching
the vehicle where the defendant handed over a small amount of
marijuana in what the Commonwealth argued was an attempt to
"divert" the trooper's attention from the presence of other
criminal contraband in the vehicle. That the defendant intended
to distract the trooper by using the small amount of marijuana
in the glove compartment as a decoy is not supported by the
findings of the judge, and we decline to address such a
"diversion" theory on appeal.
13
driving." In this argument, the Commonwealth does not attempt
to fit the search within the parameters of the automobile
exception to the warrant requirement, nor could it; the
Commonwealth argues only that the odor of unburnt marijuana and
the presence of a small amount of marijuana in the glove
compartment suggested that "there could have been more." The
mere possibility that more marijuana was present in the vehicle
does not amount to probable cause to believe that the defendant
had committed, or was committing, a crime, namely possession of
more than one ounce of marijuana. See Commonwealth v. Johnson,
461 Mass. 44, 49 & n.6 (2011), citing Commonwealth v.
Antobenedetto, 366 Mass. 51, 53 (1974) (automobile exception to
warrant requirement permits search of vehicle where probable
cause supports search). See also Commonwealth v. Daniel, supra
at 751-752 (defendant's surrender of two small bags of marijuana
did not give rise to probable cause to search vehicle).
Instead, the Commonwealth maintains only that effectuating
a warrantless search of the vehicle was the appropriate
resolution of the choice facing the trooper, between searching
the defendant's vehicle or releasing him, with the possibility
that he could smoke additional marijuana while driving. But,
notwithstanding this novel argument, there is no "Hobson's
choice" exception to the warrant requirement; that operating
while under the influence may be an "epidemic," as the
14
Commonwealth argues, does not legitimate otherwise
unconstitutional searches.
Moreover, there is no evidence that the defendant would
have smoked marijuana while driving had the trooper refrained
from searching his vehicle. The trooper was adamant that it was
unburnt, rather than burnt, marijuana that he smelled,
suggesting that, prior to the stop, the defendant had not been
smoking while driving. Similarly, as discussed supra, there is
no evidence that the defendant was impaired; the trooper
performed no tests to assess his physical and mental acuity and
permitted him to drive away.
We are not persuaded by the Commonwealth's suggestion that
the search was permissible owing to the trooper's duty to ensure
the safety of the roadways and to prevent the mere potential
that the defendant could smoke marijuana while driving. Were we
to conclude otherwise, it would follow necessarily that police
could search any vehicle containing sealed bottles of alcohol,
based on a potential risk that the driver could open a bottle
and begin drinking while driving.
c. Search pursuant to automobile exception, based on
probable cause to believe that defendant had violated Federal
law. As a third possible justification for the search, the
Commonwealth suggests the automobile exception to the warrant
requirement, which provides that police may search an automobile
15
where they have probable cause to believe that evidence of a
crime will be found therein. See Commonwealth v. Johnson, supra
at 49 & n.6, citing Commonwealth v. Antobenedetto, supra at 53.
According to this theory, the search conformed to the
requirements of the automobile exception because the trooper had
probable cause to believe that evidence of a Federal crime,
namely, possession of marijuana, would be found inside the
defendant's vehicle, despite the absence of any Federal
involvement in the stop at issue. This argument effectively
asks us to circumvent the "clear intent" of the voters who
enacted the 2008 initiative, which we identified in Commonwealth
v. Cruz, 459 Mass. 459, 464-465, 472 (2011), and to overrule the
holding of that case. We decline to do so.
We observe at the outset that State and local law
enforcement authorities are the creatures of statute, which may
be modified by the Legislature. See Commonwealth v. Dugan, 12
Met. 233, 234 (1847) ("The office of a police officer is not one
known to the common law; it is created by statute, and must be
regulated and administered according to the statute"). It
follows that duly enacted laws may circumscribe police authority
to act. See, e.g., Commonwealth v. Landry, 438 Mass. 206, 211
(2002) (in light of statute providing that it "shall not be a
crime" to participate in hypodermic needle exchange program,
police officer may not lawfully arrest individual bearing
16
program membership card for violating provision regarding
unlawful possession of needles). Thus, the 2008 initiative,
constituting as it does a valid exercise of legislative
authority, limited the scope of permissible police conduct with
regard to marijuana offenses by reclassifying possession of one
ounce or less as a civil violation. See Commonwealth v. Cruz,
supra at 471-472 ("the entire statutory scheme [enacted by the
2008 initiative] also implicates police conduct in the field").
Similarly, although the "general rule is that local police
are not precluded from enforcing federal statutes," Gonzales v.
Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.
1999), their authority to do so derives from State law. See
Miller v. United States, 357 U.S. 301, 305 (1958) (where State
police officers make arrest for violation of Federal law,
"lawfulness of the arrest without warrant is to be determined by
reference to state law"); Johnson v. United States, 333 U.S. 10,
15 n.5 (1948) (same); Goulis v. State Judge of the Third Dist.
Court of E. Middlesex, 246 Mass. 1, 5-6 (1923), quoting
Dallemagne v. Moisan, 197 U.S. 169, 174 (1905) ("It has long
been held that power may be conferred upon a state officer, as
such, to execute a duty imposed under an act of Congress, and
the officer may execute the same, unless its execution is
prohibited by the constitution or legislation of the state").
17
While State law may authorize local and State police to enforce
Federal criminal statutes, 10 it need not do so.
Where the 2008 initiative decriminalized possession of one
ounce or less of marijuana under State law, and accordingly
removed police authority to arrest individuals for civil
violations, see G. L. c. 94C, § 32N, it also must be read as
curtailing police authority to enforce the Federal prohibition
of possession of small amounts of marijuana. Any contrary
interpretation would clearly contravene the people's intent, to
which we must give effect. See Commonwealth v. Cruz, supra at
470-471. Construing the statutory scheme to continue to permit
State and local police to enforce the Federal prohibition would
be entirely inconsistent with the objective that we discerned in
Commonwealth v. Cruz, supra at 477, to "free up the police for
more serious criminal pursuits." We will not adopt an
interpretation that is so plainly at odds with the purpose of
the initiative. See Bridgewater State Univ. Found. v. Assessors
of Bridgewater, 463 Mass. 154, 160 (2012) (court will not
embrace "absurd or unreasonable" interpretation of statute).
The Commonwealth appears to acknowledge that, after the
2008 initiative, State and local police lack authority to make
arrests under Federal law for possessing small amounts of
10
Of course, State law may authorize local enforcement of
Federal statutes only if not preempted by Federal law. See
Arizona v. United States, 132 S. Ct. 2492, 2505-2507 (2012).
18
marijuana, but claims nonetheless that police may simply
investigate possible violations of Federal statutes and turn
over any evidence obtained to Federal authorities. Even
assuming that the power to investigate crimes and make arrests
may be decoupled in such a way, the Federal government's current
stance on prosecuting marijuana-related offenses significantly
undercuts the strength of this argument. In 2009, and again in
2013, the United States Department of Justice issued a
memorandum to all United States Attorneys outlining its
enforcement priorities with respect to marijuana-related
offenses. See J.M. Cole, Deputy Attorney General of the United
States, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013)
(Cole); D.W. Ogden, Deputy Attorney General of the United
States, Investigations and Prosecutions in States Authorizing
the Medical Use of Marijuana (Oct. 19, 2009). Such priorities
include, inter alia, "[p]reventing revenue from the sale of
marijuana from going to criminal enterprises, gangs, and
cartels" and "[p]reventing violence and the use of firearms in
the cultivation and distribution of marijuana." Cole, supra at
1-2.
The Department of Justice has recognized that, "[o]utside
of these enforcement priorities, the federal government has
traditionally relied on states and local enforcement agencies to
address marijuana activity through enforcement of their own
19
narcotics laws," and will continue to do so where Federal
priorities are not implicated. Id. at 2-3. Therefore, given
the clear preference expressed in the 2008 initiative that
police focus their attention elsewhere, Federal law does not
supply an alternative basis for investigating possession of one
ounce or less of marijuana, especially where the Federal
government has signaled a lessened interest in prosecuting such
conduct.
To be sure, examples of cooperation between Federal and
State law enforcement authorities are legion in our case law.
See, e.g., Commonwealth v. Gonzalez, 426 Mass. 313, 314 (1997);
Commonwealth v. Cast, 407 Mass. 891, 893 (1990). See also
United States v. Franklin, 630 F.3d 53, 54 (1st Cir.), cert.
denied, 131 S. Ct. 2466 (2011). By concluding as we do, we do
not intend to call into question the legitimacy of such joint
efforts. We hold only that where, as here, State law expressly
has decriminalized certain conduct, there is no extant joint
investigation, and the Federal government has indicated that it
will not prosecute certain conduct, the fact that such conduct
is technically subject to a Federal prohibition does not provide
an independent justification for a warrantless search.
Therefore, "[a]bsent articulable facts supporting a belief
that either occupant of the vehicle possessed a criminal amount
of marijuana [under State law], the search was not justified by
20
the need to search for contraband [under Federal law]."
Commonwealth v. Daniel, 464 Mass. 746, 752 (2013).
Order allowing motion
to suppress affirmed.