Commonwealth v. Benjamin Cruz
459 Mass. 459 (2011)
Supreme Judicial Court
April 19, 2011
Criminal, Vehicle, Exit Order, Motion to Suppress, Marijuana, Smell of Burnt Marijuana, Probable Cause, Reasonable Suspicion, Exit Order
The SJC granted the defendant’s direct appellate review to decide an issue of first impression regarding the applicability of G.L. c. 94C, §§ 32L-32N, which decriminalized the possession of less than one ounce of marijuana, towards search and seizure jurisprudence. The SJC held that the odor of burnt marijuana is insufficient for a finding of probable cause or reasonable suspicion by itself to justify an exit order from a vehicle.
Facts
Officers patrolling the Hyde Park section of Jamaica Plain saw a car parked in front of a fire hydrant at 5 P.M. The defendant sat in the passenger seat of the car with another party in the driver’s seat. The officers saw the driver light a cigar that is commonly known to mask the odor of marijuana. Both officers testified as to recognizing the defendant, who lived on this street, and that they did not know him to be dangerous or have ever been arrested. The officers pulled up to the car, approached, and smelled a faint odor of burnt marijuana. Upon smelling this, the officers asked the driver, who appeared nervous, whether he had anything significant in the car, to which he responded “no.” The defendant also appeared nervous during this interaction, choosing not to look at the officers. Neither the driver nor the defendant made any furtive gestures or threatening movements.
Based on the odor of the marijuana and the way the individuals acted, the officers ordered the driver and defendant out of the car. The defendant told the officer upon exiting that he had a “little rock for myself.” An officer found crack cocaine on the defendant’s person.
Issue: Did the trial court err in concluding that the police permissibly approached the car but impermissibly ordered the defendant out of the car?
No. The SJC did not consider whether the officer appropriately approached the car because it was uncontested that they validly “stopped” the car for parking in front of the fire hydrant, a civil traffic violation. This traffic violation, however, was not sufficient to justify the exit order. The SJC summarized the applicable exit order jurisprudence, noting that officers can only give exit orders in three circumstances: 1) if they fear for their safety or the safety of the public; 2) if they have specific facts that establish reasonable suspicion; 3) if they need the passengers to exit a vehicle for pragmatic reasons, such as searching the car on other grounds.
As to the first possible rationale for the exit order, the Commonwealth conceded that the officers did not order the individuals out of the car for safety purposes. As to the second possible rationale for the exit order, the court determined that the Commonwealth could not solely rely upon the faint odor of burnt marijuana to support a finding of reasonable suspicion because reasonable suspicion requires the suspicion of a criminal offense, not just a suspicion of a civil offense.
As to the last possible rationale, the court rejected the Commonwealth’s argument that because a car could be searched if police have probable cause that it contains contraband (and therefore an exit order could be given to facilitate the search), the faint odor of burnt marijuana establishes probable cause because it shows that the car contains contraband. The SJC rejected this argument because this evidence would not be sufficient for a magistrate to issue a search warrant, which requires the same probable cause requirement. While the Commonwealth put forth out-of-state case law supporting their argument, they did not put forth any Massachusetts case law that permitted a search warrant based solely upon probable cause that a civil violation had been committed. Therefore, the SJC ruled that the police were not justified in ordering the defendant out of the car.
Dissent (Cowin, J.)
The dissenting opinion argued that despite the decriminalization of marijuana under an ounce, the odor of burnt marijuana still should provide probable cause due to the criminality of many activities involving marijuana. For example, the odor of marijuana permits an officer to reasonably suspect that parties are involved in possession of criminal amounts of marijuana or in possession of marijuana with intent to distribute. Due to this rationale, the dissent viewed the police’s exit order as justified due to the reasonable suspicion that the individuals in the car might be involved in the commission of a crime.
