It has been quite some time since I've blogged, but a recent Massachusetts article on a drug bust caught my attention. As I read this article, describing the circumstances surrounding a 20 pound marijuana bust by the Massachusetts State Police, I couldn't help but do so through the lens of a criminal defense attorney. By the time I finished reading the article, I thought to myself, "I'd like to have this case." I believe that the search of the suspect's car could be thrown out, which would result in dismissal of the entire case.
It is well-established in Massachusetts that before a police officer can either order a person out of his or her vehicle during a routine traffic stop, there must be a reasonable belief of either ongoing criminal activity or a reasonable concern for the safety of the officer or the public. Up until four years ago, possession of marijuana in any amount was a criminal offense in Massachusetts, therefore a reasonable belief that a person had marijuana in the car was enough to justify either an "exit order" or a search of the vehicle.
In 2008, Massachusetts passed a law to decriminalize possession of less than one ounce of marijuana. (Other circumstances could justify charging a person with intent to distribute, even when less than one ounce is present, such as large amounts of cash, baggies, a scale, or other items associated with drug distribution). Now that possession of less than an ounce of marijuana is, in and of itself, no longer a crime, the Supreme Judicial Court held that the odor of freshly burnt marijuana alone is not enough to justify an "exit order" and courts have ruled that even when such an odor of marijuana is combined with other factors, such as nervousness, these factors alone are not enough to suggest criminal activity to justify a search of the car. Commonwealth v. Cruz, 459 Mass. 459 (2011); Commonwealth v. Damon, 82 Mass.App.Ct. 164 (2012).
In this article, there does not appear to be any justification for a search of the motor vehicle other than the odor of marijuana, some marijuana in the center console, along with drug paraphernalia (which, I would argue, suggests personal use, rather than a criminal quantity of the drug). The mere presence of a noncriminal amount of marijuana is not enough to search a person's vehicle. Courts have held that in general, while the odor of "freshly burnt" marijuana may not give reasonable suspicion to search a car, the odor of "fresh marijuana" may suggest a larger, criminal quantity of the drug so as to justify a search. If there is no distinction in the trooper's police report as to the type of marijuana odor, any "after the fact" characterization at a motion hearing that the odor was "fresh marijuana" as opposed to "freshly burnt marijuana" could easily be attacked by a skilled defense attorney. Without reasonable belief that the suspect was in possession of a criminal amount of the drug, then the prolonged detention (making the suspect remain at the scene while the trooper called and waited for the k-9 unit to arrive) was not justified, and anything discovered from the k-9's "sniff" should be suppressed, or thrown out, resulting in dismissal of the case.
If the driver appeared to be impaired by marijuana, the officer might have reasonable suspicion that he was operating under the influence of drugs, which is a crime that would have justified an exit order and subsequent search. Had the driver made furtive movements that appeared threatening, such as reaching under his seat, possibly for a weapon, then a search might have been justified out of concern for the officer's safety. Of course, if the suspect gave the troopers permission to search his car, then no other justification would be required- but that doesn't appear to be the case. While I have not read the police report, it is my experience that the media (who inevitably obtained a copy of the report) usually picks up on, and reports, every minute detail that appears incriminating. If any other justification to search the car was present, the media would have jumped on it. I believe that if the officers' testimony at a "Motion to Suppress" hearing is consistent with what we see in this news article, then the results of the search, i.e. the 20 pounds of marijuana, and this case, could ultimately be tossed.