Commonwealth v. Rodriguez

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SJC-11814

COMMONWEALTH vs. ELIVETTE RODRIGUEZ.

Bristol. March 5, 2015. - September 22, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Marijuana. Threshold Police Inquiry. Search and Seizure,

Threshold police inquiry, Reasonable suspicion.

Constitutional Law, Investigatory stop, Reasonable

suspicion.

Complaint received and sworn to in the New Bedford Division

of the District Court Department on April 27, 2012.

A pretrial motion to suppress evidence was heard by Joseph

I. Macy, J.

An application for leave to prosecute an interlocutory

appeal was allowed by Gants, J., in the Supreme Judicial Court

for the county of Suffolk, and the appeal was reported by him to

the Appeals Court. The Supreme Judicial Court on its own

initiative transferred the case from the Appeals Court.

John L. Calcagni, III, for the defendant.

Corey T. Mastin, Assistant District Attorney, for the

Commonwealth.

2

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.

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

1

At the evidentiary hearing, one witness testified,

Detective Daniel Amaral of the New Bedford police department.

Following the hearing, the motion judge wrote a brief memorandum

of decision, but it does not include specific factual findings.

The information summarized in the text is taken from the

testimonial evidence presented. This factual information does

not appear to be disputed, and it is not inconsistent with the

motion judge's decision. See Commonwealth v. Jones-Pannell, 472

Mass. 429, 436-438 (2015).

3

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

2

The background that led to the instruction was the

following: the surveillance team that night saw the vehicle

stop in front of a "home of interest"; the driver of the vehicle

went into the home, at which point the team instructed Amaral

that if the driver did not remain in the residence long, the

vehicle should be stopped and the driver questioned. Minutes

after the driver went into the home, the driver returned to the

vehicle and drove away.

3

Both Amaral and the vehicle driver had their windows down,

allowing Amaral to smell the odor. In addition, Amaral had

significant experience in narcotics investigation and

interdiction, and we assume without deciding that he was

qualified to identify the odor as that of burnt marijuana.

4

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 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

4

The defendant's attorney represented during oral argument

before us that the manner in which the bag of pills was

discovered was the subject of a separate motion to suppress that

remains pending in the District Court. The record in this case

contains no information concerning how the pills were

discovered, but the issue is not relevant to our analysis here.

5

The defendant was originally charged with cocaine

trafficking in violation of G. L. c. 94C, § 32E (b). That

charge was eventually reduced to possession with intent to

distribute a class B substance.

5

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 (2004). See Commonwealth v. Craan, 469 Mass.

24, 26 (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 (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. 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 (2014); Cruz, supra

6

at 475-476. See also Craan, 469 Mass. at 29-35; Commonwealth v.

Daniel, 464 Mass. 746, 751-757 (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

6

General laws c. 94C, § 32L, provides, in pertinent part:

"Notwithstanding any general or special law to the

contrary, possession of one ounce or less of marihuana

shall only be a civil offense, subjecting an offender who

is eighteen years of age or older to a civil penalty of one

hundred dollars and forfeiture of the marihuana, but not to

any other form of criminal or civil punishment or

disqualification."

7

issue a citation for a civil traffic offense, an officer may do

so in order to issue a civil citation for marijuana possession.7

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

7

Recognizing that this argument differs from the basis on

which the District Court motion judge denied the defendant's

motion to suppress, the Commonwealth argues that we may

nevertheless affirm the denial "on grounds different from those

relied on by the motion judge if the correct or preferred basis

for affirmance is supported by the record and the findings."

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).

8

General Laws c. 90C, § 2, provides, in pertinent part:

"[A]ny police officer assigned to traffic enforcement

duty shall, whether or not the offense occurs within his

presence, record the occurrence of automobile law

violations upon a citation . . . and [indicate] thereon

. . . whether the citation shall constitute a written

warning and, if not, whether the violation is a criminal

offense for which an application for a complaint as

provided by [G. L. c. 90C, § 3 (B)] shall be made, whether

the violation is a civil motor vehicle infraction which may

be disposed of in accordance with [G. L. c. 90C, § 3 (A)],

or whether the violator has been arrested in accordance

with [G. L. c. 90, § 21]. Said police officer shall

inform the violator of the violation and shall give a copy

of the citation to the violator. Such citation shall be

signed by said police officer and by the violator, and

whenever a citation is given to the violator in person that

fact shall be so certified by the police officer. The

8

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 (1980) ("Where police

have observed a traffic violation, they are warranted in

stopping a vehicle"). See also Commonwealth v. Feyenord, 445

Mass. 72, 75 (2005), cert. denied, 546 U.S. 1187 (2006)

(permitting vehicle stop based on inoperable headlight);

violator shall be requested to sign the citation in order

to acknowledge that it has been received. . . .

"A failure to give a copy of the citation to the

violator at the time and place of the violation shall

constitute a defense in any court proceeding for such

violation, except where the violator could not have been

stopped or where additional time was reasonably necessary

to determine the nature of the violation or the identity of

the violator, or where the court finds that a circumstance,

not inconsistent with the purpose of this section to create

a uniform, simplified and non-criminal method for disposing

of automobile law violations, justifies the failure. In

such case the violation shall be recorded upon a citation

as soon as possible after such violation and the citation

shall be delivered to the violator or mailed to him at his

residential or mail address or to the address appearing on

his license or registration as appearing in registry of

motor vehicles records."

9

General laws c. 90C, § 3 (A) (1), provides, in pertinent

part:

"If a police officer observes or has brought to the

officer's attention the occurrence of a civil motor vehicle

infraction, the officer may issue a written warning or may

cite the violator for a civil motor vehicle infraction

. . . ."

9

Commonwealth v. Santana, 420 Mass. 205, 207 (1995) (permitting

stop for defective taillight).10 The Commonwealth contends that,

similar to these traffic violation statutes, G. L. c. 94C,

§ 32N,11 provides 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

10

The parties did not identify, nor did we find, any case

that directly discusses whether G. L. c. 90C, §§ 2 and 3 (A),

authorize police officers to stop moving automobiles in order to

issue traffic citations. However, cases citing these statutes

suggest that the statutes have been read as authorizing vehicle

stops. See Commonwealth v. Goewey, 69 Mass. App. Ct. 429, 432

(2007), S.C., 452 Mass. 399, 405 (2008) (citing G. L. c. 90C,

§ 3 [A] [1], as support for conclusion that traffic stop was

valid). See also Commonwealth v. Correia, 83 Mass. App. Ct.

780, 786 (2013) (mentioning G. L. c. 90C, § 2).

11

See G. L. c. 94C, § 32N, first par. ("The police

department serving each political subdivision of the

Commonwealth shall enforce [G. L. c. 94C, § 32L,] in a manner

consistent with the non-criminal provisions of [G. L. c. 40,

§ 21D]").

12

General Laws c. 40, § 21D, provides, in pertinent part:

"Any city or town may by ordinance or by-law not

inconsistent with this section provide for non-criminal

disposition of violations of any ordinance or by-law or any

rule or regulation of any municipal officer, board or

department the violation of which is subject to a specific

penalty.

"Any such ordinance or by-law shall provide that any

person taking cognizance of a violation of a specific

ordinance, by-law, rule or regulation which he is empowered

to enforce, hereinafter referred to as the enforcing

person, as an alternative to initiating criminal

proceedings shall, or, if so provided in such ordinance or

10

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

by-law, may, give to the offender a written notice to

appear before the clerk of the district court having

jurisdiction thereof at any time during office hours, not

later than twenty-one days after the date of such

notice. . . . Such notice shall be signed by the enforcing

person, and shall be signed by the offender whenever

practicable in acknowledgment that such notice has been

received.

"The enforcing person shall, if possible, deliver to

the offender a copy of said notice at the time and place of

the violation. If it is not possible to deliver a copy of

said notice to the offender at the time and place of the

violation, said copy shall be mailed or delivered by the

enforcing person, or by his commanding officer or the head

of his department or by any person authorized by such

commanding officer, department or head to the offender's

last known address, within fifteen days after said

violation. Such notice as so mailed shall be deemed a

sufficient notice, and a certificate of the person so

mailing such notice that it has been mailed in accordance

with this section shall be prima facie evidence thereof."

13

General Laws c. 40, § 21D, like G. L. c. 90C, § 2, in the

automobile law context, directs the officer issuing a citation

in accordance with these statutes to give the offender a copy of

the notice of the offense "at the time and place of the

violation" if possible. (See notes 8 and 12, supra.) The

Commonwealth argues that compliance with this requirement would

never be possible if the offender were in a moving automobile

that the officer had no authority to stop. Moreover, it would

be likely that the officer could not even obtain the offender's

name and address, as c. 40, § 21D, requires, while the offender

is in a moving automobile.

11

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 issuing

citations -- they are simply silent on this point. But in

contrast to c. 90C, §§ 2 and 3 (A), the marijuana possession

decriminalization statutes do not directly relate to moving

vehicles or to traffic safety. We need not resolve here,

however, the question whether, and if so, in what circumstances,

c. 94C, § 32N, and c. 40, § 21D, authorize police to stop a

12

motor vehicle in order to enforce the civil penalties for

marijuana possession under G. L. c. 94C, § 32L. This is so

because quite apart from these statutes, there are

constitutional considerations that must first be taken into

account, and in the end, these constitutional considerations

carry the day.

A police stop of a moving automobile constitutes a seizure,

and therefore, any such stop, whatever its purpose, must comply

with the Fourth Amendment to the United States Constitution and

with art. 14 of the Massachusetts Declaration of Rights. See

Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000). See also

Whren v. United States, 517 U.S. 806, 809-810 (1996); Delaware

v. Prouse, 440 U.S. 648, 653 (1979). We recognize that in the

civil traffic law violation context, appellate decisions in

Massachusetts have deemed constitutionally permissible stops

that factually appeared to satisfy either the probable cause or

reasonable suspicion standard.14 See Santana, 420 Mass. at 206-

207; Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999).

See also Bacon, 381 Mass. at 643-644. Cf. Commonwealth v.

14

Other courts have allowed under the Fourth Amendment to

the United States Constitution stops based on reasonable

suspicion of traffic offenses. See United States v. Fox, 393

F.3d 52, 59 (1st Cir. 2004), rev'd on other grounds, 429 F.3d

316 (2005). See also United States v. Delfin-Colina, 464 F.3d

392, 396-397 (3d Cir. 2006) (reviewing Federal Circuit Courts of

Appeals that have allowed stops to enforce traffic laws based on

reasonable suspicion).

13

Washington, 459 Mass. 32, 38-39 & n.14 (2011).15 Nevertheless,

for the reasons discussed infra, similar stops to enforce the

civil penalty for marijuana possession are constitutionally

distinct, and warrant their own Fourth Amendment and art. 14

analysis.

In undertaking that analysis here, the first task is to

determine whether we are dealing with an issue of probable cause

or reasonable suspicion. In Commonwealth v. Garden, 451 Mass.

43 (2008), we stated that the "odor of marijuana is sufficiently

distinctive that it alone can supply probable cause to believe

that marijuana is nearby." Id. at 48. See Commonwealth v.

Lawrence L., 439 Mass. 817, 823 (2003) ("odors alone may be

sufficient to satisfy the probable cause requirement of the

Fourth Amendment"). However, that decision preceded the

decriminalization of possession of one ounce or less of

marijuana. See Garden, supra at 43. Since then, we have

"reconsider[ed] our jurisprudence in light of the change to our

laws." See Cruz, 459 Mass. at 464 & n.8. In particular, our

analysis of the meaning that can be derived from the odor of

marijuana alone has evolved, such that, as indicated previously,

we no longer consider the "strong" or "very strong" smell of

15

This is so even though the standards of probable cause

and reasonable suspicion are tied to the investigation of

criminal conduct, not infractionary conduct. See Commonwealth

v. Cruz, 459 Mass. 459, 465-466 (2011).

14

unburnt marijuana to provide probable cause to believe that a

criminal amount of the drug is present, see Overmyer, 469 Mass.

at 23; nor is such a determination of probable cause appropriate

based on the smell of burnt marijuana combined with the presence

of two small bags totaling less than one ounce. See Daniel, 464

Mass. at 747, 751-752. Although we have not explicitly

addressed since the passage of the decriminalization statute

whether the odor of marijuana alone creates probable cause to

believe that any amount of the drug is present, these cases

remind us that in reevaluating what inferences may now be drawn

from evidence that suggests the possible presence of marijuana,

we must also keep in mind the varied and occasionally complex

contexts in which such evidence presents itself.

With this principle in mind, Garden's conclusion that the

odor of marijuana alone creates probable cause to believe that

the drug is still present is insufficiently nuanced, because it

fails to account for the significant possibility that the odor

of burnt marijuana may be present on a person or in a vehicle,

but the drug itself is not. As we noted in Garden itself, where

the occupants of a vehicle wore clothes that smelled like

marijuana but a patfrisk of these persons produced no drugs, the

odor of burnt marijuana in this context may have "suggest[ed]

that the defendant, or others in the car, had been smoking

marijuana in the not too distant past." Id. at 52. We add here

15

another possibility: that the individuals who smelled like

marijuana could have been at a social gathering where others

smoked marijuana. See Daniel, 464 Mass. at 747, 756 (interior

of vehicle smelled of burnt marijuana; driver attributed this

smell to being at party where others smoked). These examples

illustrate the point that although the occupants of a vehicle,

or the vehicle's interior, might smell like burnt marijuana,

that does not necessarily mean that an occupant of the vehicle

currently possesses any amount of marijuana. Therefore, upon

further consideration of these possibilities, and keeping in

mind that probable cause determinations turn on "probabilities,"

including "factual and practical considerations of everyday

life," see Commonwealth v. Cast, 407 Mass. 891, 895 (1990)

(citation omitted), we conclude that in a case such as the

present one, where the only factor leading an officer to

conclude that an individual possesses marijuana is the smell of

burnt marijuana, this factor supports a reasonable suspicion

that that individual is committing the civil offense of

possession of a small quantity of marijuana, but not probable

cause to believe that he or she is committing the offense.

Therefore, the question in this case is whether the Fourth

Amendment and art. 14 permit police to stop a vehicle where they

have reasonable suspicion, but not probable cause, to believe

16

that a civil, infractionary offense of marijuana possession is

occurring or has occurred.

"[T]he 'ultimate touchstone of both the Fourth Amendment

. . . and art. 14 . . . is reasonableness.'" Overmyer, 469

Mass. at 20, quoting Commonwealth v. Entwistle, 463 Mass. 205,

213 (2012), cert. denied, 133 S. Ct. 945 (2013). Thus, to

evaluate the permissibility of particular law enforcement

practices, including police stops of moving vehicles where there

is no probable cause to suspect the vehicle's involvement in

criminal activity, courts have balanced the intrusiveness of the

police activities at issue against any legitimate governmental

interests that these activities serve. See Prouse, 440 U.S. at

654, 658-661 (prohibiting vehicle stops without any evidence of

traffic or equipment violation). See also Whren, 517 U.S. at

817-818 (where police lack probable cause for vehicle stop,

detailed balancing of interests has determined stop's

reasonableness). Cf. Catanzaro, 441 Mass. at 56 ("There is no

ready test for reasonableness [under art. 14] except by

balancing the need to search or seize against the invasion that

the search or seizure entails"). In balancing these factors, we

keep in mind that "art. 14 may provide greater protection than

the Fourth Amendment against searches and seizures." Rodriguez,

430 Mass. at 584.

17

Regardless of the reason for it, a police stop of a moving

vehicle can be "humiliating, frightening, and embarrassing" for

the vehicle's occupants, and can raise the possibility of arrest

and incarceration for a crime unrelated to the original reason

for the stop, as the present case illustrates. See Woods,

Decriminalization, Police Authority, and Routine Traffic Stops,

62 U.C.L.A. L. Rev. 672, 713 (2015). Cf. Prouse, 440 U.S. at

657 (random vehicle stops to check documents "generally entail

law enforcement officers signaling a moving automobile to pull

over to the side of the roadway, by means of a possibly

unsettling show of authority[,] . . . interfere with freedom of

movement, are inconvenient, . . . consume time . . . [and] may

create substantial anxiety"). However, in the automobile law

context, allowing police to make these stops serves a

significant governmental interest. As discussed previously,

many of our traffic violation statutes regulate moving cars and

relate directly to the promotion of public safety; even those

laws that have to do with maintaining a vehicle's equipment in

accordance with certain standards may also be safety-related.

See id. at 658 (recognizing States' "vital interest" in vehicle

inspection and registration requirements, which ensure that all

vehicles are "fit for safe operation"). Permitting stops based

on reasonable suspicion or probable cause that these laws may

have been violated gives police the ability to immediately

18

address potential safety hazards on the road. Thus, although a

vehicle stop does represent a significant intrusion into an

individual's privacy, the governmental interest in allowing such

stops for the purpose of promoting compliance with our

automobile laws is clear and compelling.

No similar governmental interest supports allowing police

to stop a vehicle based on reasonable suspicion that someone in

the vehicle possesses an ounce or less of marijuana in violation

of G. L. c. 94C, § 32L. Although vehicle stops to investigate

civil marijuana infractions serve a general law enforcement

purpose, there is no obvious and direct link between enforcement

of the civil penalty for marijuana possession and maintaining

highway safety.16 Moreover, particularly because possession of

one ounce or less of marijuana was decriminalized through a

ballot initiative, our analysis of the governmental interests

16

It is important to distinguish simple marijuana

possession, which is at issue here, from the offense of

operating a vehicle while under the influence of marijuana.

Driving while under the influence of marijuana is a serious

offense that may well present safety hazards requiring the

immediate involvement of police. See G. L. c. 90, § 24 (1) (a)

(1) (prohibiting driving while under influence of substances,

including marijuana). However, the mere fact that a vehicle

driver or passenger possesses marijuana does not mean that the

driver has been operating while impaired. Thus, we have

rejected the suggestion that evidence that a driver possessed a

noncriminal amount of marijuana, without any evidence of the

driver's impairment, created probable cause to believe the

driver was operating while under the influence of marijuana and

justified searching the vehicle. Commonwealth v. Daniel, 464

Mass. 751, 754-757 (2013).

19

served by allowing police to stop vehicles in order to enforce

the civil penalty under this law "must give effect to the clear

intent of the people of the Commonwealth in accord with art. 14

. . . and the Fourth Amendment." See Cruz, 459 Mass. at 464-

465. We have determined that the people's intent in

decriminalizing possession of this small quantity of marijuana

was to establish that this offense was no longer "a serious

infraction worthy of criminal sanction," and that those who

commit this offense should be treated differently from other

drug offenders. Id. at 471. In particular, we have identified

three policy goals that c. 94C, § 32L, was intended to serve:

"to reduce the direct and collateral consequences of possessing

small amounts of marijuana, to direct law enforcement's

attention to serious crime, and to save taxpayer resources

previously devoted to targeting the simple possession of

marijuana." Commonwealth v. Jackson, 464 Mass. 758, 765 (2013).

See Cruz, supra at 471-472. Permitting police to stop a vehicle

based on reasonable suspicion that an occupant possesses

marijuana does not serve these objectives. Rather, it

encourages police to continue to investigate and to pursue

individuals suspected of this offense in the same manner as

before decriminalization, it does not refocus police efforts on

pursuing more serious crime, and it subjects individuals who

20

police merely suspect may be committing a nondangerous, civil

offense to all of the potential consequences of a vehicle stop.

Although marijuana possession remains illegal, the present

case is not one in which a police officer actually observed an

infraction -- such as a person walking through a park smoking

what appeared to be a marijuana cigar or cigarette -- and

stopped the offender for the purpose of issuing a citation and

confiscating the offending item. Rather, here, an officer

smelled burnt marijuana, nothing more, and stopped a vehicle to

investigate further whether a citation was appropriate. (It was

only after the stop had been made that Amaral observed the

driver's marijuana cigar.) Because stops based on reasonable

suspicion of a possible civil marijuana infraction do not

promote highway safety and run contrary to the purposes of G. L.

c. 94C, § 32L, we are disinclined to extend the rule that allows

vehicle stops based on reasonable suspicion of a civil motor

vehicle offense to stops to enforce the civil penalty for

possession of one ounce or less of marijuana. Such stops are

unreasonable; therefore, the stop in this case violated art. 14.

3. Conclusion. The order denying the defendant's motion

to suppress is reversed. The case is remanded to the District

Court for further proceedings consistent with this opinion.

So ordered.

CORDY, J. (dissenting, with whom Spina, J., joins). "An

Act establishing a sensible State marijuana policy," codified at

G. L. c. 94C, §§ 32lL-32N, did not legalize the possession of

marijuana; it merely decriminalized the possession of small

amounts. See Commonwealth v. Cruz, 459 Mass. 459, 464 (2011).

Such possession remains a civil offense and, as with other civil

offenses, subjects the offender to a civil penalty and

forfeiture of the marijuana. G. L. c. 94C, § 32L.

The novel issue presented here is whether reasonable

suspicion of a civil marijuana violation occurring in a motor

vehicle is sufficient to justify stopping the motor vehicle for

purposes of confirming or dispelling that suspicion and, if

necessary, for purposes of issuing a citation.1 The court, after

employing a balancing test weighing the level of intrusion of a

motor vehicle stop against the legitimate governmental interest

at stake in the enforcement of the marijuana laws, concludes

that reasonable suspicion is not sufficient to justify such a

stop. For the reasons set forth below, I respectfully dissent.

1

It is important to note that in order to issue a citation

for a civil traffic violation, an officer must possess at least

probable cause. See Commonwealth v. Washington, 459 Mass. 32,

39 & n.14 (2011). This, however, does not mean that an officer

must have probable cause to stop a person suspected of a civil

traffic violation. Rather, "an officer's reasonable suspicion

of a possible, but unconfirmed, motor vehicle violation

sufficiently justifies an investigatory traffic stop in order to

verify or dispel that suspicion." Id. at 39 n.14.

2

It is undisputed that a motor vehicle stop conducted by a

police officer constitutes a seizure for purposes of both the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights. See Commonwealth v.

Rodriguez, 430 Mass. 577, 579 (2000), citing Michigan Dep't of

State Police v. Sitz, 496 U.S. 444, 450 (1990). It is well

settled, however, that reasonable suspicion that a civil traffic

offense has been committed is constitutionally sufficient to

justify a motor vehicle stop. See Delaware v. Prouse, 440 U.S.

648, 663 (1979) (officer must have "at least articulable and

reasonable suspicion that a motorist is unlicensed or that an

automobile is not registered, or that the vehicle or an occupant

is otherwise subject to seizure for violation of law");

Commonwealth v. Washington, 459 Mass. 32, 39 & n.14 (2011)

("officer's reasonable suspicion of a possible, but unconfirmed,

motor vehicle violation sufficiently justifies an investigatory

traffic stop in order to verify or dispel that suspicion"). See

also Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999)

(reasonable suspicion that window is illegally tinted sufficient

to justify stopping motor vehicle to ascertain whether civil

violation had occurred). In my view, there is no

constitutionally based reason to distinguish stops for civil

marijuana violations (occurring in motor vehicles) from stops

3

for civil motor vehicle violations. Reasonable suspicion of a

civil violation is enough.

The court, however, concludes that a detailed balancing

inquiry is required when a motor vehicle stop is conducted in

the absence of probable cause. The cases on which the court

relies in support of this conclusion, however, concern police

activities conducted without any individualized suspicion. For

example, Prouse, 440 U.S. at 650-651, concerned the

constitutionality of a motor vehicle stop that was conducted

without any suspicion of a traffic or equipment violation,

solely to check the driver's license and automobile

registration. In determining the stop's reasonableness, the

Supreme Court employed a balancing inquiry because the officers

possessed no individualized suspicion of criminal wrongdoing.

See id. at 654-659.

Likewise, the central issue addressed by the Supreme Court

in Whren v. United States, 517 U.S. 806, 810 (1996), was not the

quantum of proof necessary to effectuate a motor vehicle stop

for a traffic violation, but whether the (allegedly racial)

subjective motivation of the police officer conducting the motor

vehicle stop was relevant to the stop's reasonableness. The

Court declined to engage in a detailed balancing inquiry to

determine the stop's reasonableness, concluding that such

balancing is not necessary when a motor vehicle stop is

4

conducted with individualized suspicion, id. at 817-819, in that

case, probable cause to believe a civil motor vehicle infraction

had occurred. Id. at 819. Here, there is also individualized

suspicion, albeit at least reasonable suspicion.2

Finally, the court relies on Commonwealth v. Rodriguez, 430

Mass. 577, 580-581 (2000), to support its balancing inquiry.

The Rodriguez case, however, addressed the constitutionality of

a police roadblock set up for the purpose of interdicting

illegal drugs. Id. at 585-586. This court noted that except

for a few narrowly defined public safety intrusions, a police

officer must possess at least reasonable suspicion to justify a

motor vehicle stop. Id. at 580, quoting United States v.

Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). Again, a motor

vehicle stop conducted as part of a suspicionless roadblock is

2

In my view, there is also probable cause. Our

jurisprudence in Commonwealth v. Garden, 451 Mass. 43, 48

(2008), remains relevant and instructive. In that case, we

concluded that the "odor of marijuana is sufficiently

distinctive that it alone can supply probable cause to believe

that marijuana is nearby." Id. Nothing has occurred that

warrants a reconsideration of this common-sense conclusion.

What has occurred is a change in the law making the possession

of small amounts of marijuana a civil rather than criminal

offense. That there is probable cause to believe some amount of

marijuana is nearby remains logical and really beyond debate.

The notion of someone having marijuana odor on their clothes

(and none in their possession) remains possible -- but does not

defeat probable cause. Indeed, the odor of marijuana streaming

out of a moving vehicle seems totally inconsistent with the

court's hypothetical scenario.

5

markedly different from a motor vehicle stop made on reasonable

suspicion of a civil marijuana violation.

In my view, no detailed balancing of interests is necessary

where this court has already recognized that reasonable

suspicion of a civil motor vehicle infraction is sufficient to

justify an investigatory stop for purposes of confirming or

dispelling that suspicion. See Washington, 459 Mass. at 39 &

n.14. "[T]he reasonableness standard usually requires, at a

minimum, that the facts upon which an intrusion is based be

capable of measurement against 'an objective standard,' whether

this be probable cause or a less stringent test" (footnotes

omitted). Prouse, 440 U.S. at 654. That standard is met here

and standing alone should be sufficient to justify an

investigatory stop for the purpose of confirming a civil

violation of the marijuana laws and issuing a citation just as

reasonable suspicion of a civil traffic violation justifies such

a stop. See, e.g., People v. Brown, 62 Cal. App. 4th 493, 496-

497 (1998) (officer may stop individual suspected of violating

California vehicle code in order to issue citation); State v.

Brown, 694 A.2d 453, 453 (Me. 1997) ("In order to support a

brief investigatory stop of a motor vehicle, . . . a police

officer must have an articulable suspicion that criminal conduct

or a civil violation has occurred, is occurring, or is about to

occur . . ."); State v. Colstad, 260 Wis.2d 406, 414-415, cert.

6

denied, 540 U.S. 877 (2003) (reasonable suspicion that driver

violated traffic ordinance justified investigatory stop). The

stop is investigative in nature, and its purpose is merely to

confirm or dispel the officer's suspicion that a civil marijuana

violation has occurred.3

The court goes on to opine that because a civil marijuana

violation generally has no bearing on traffic and automobile

safety, a motor vehicle stop to enforce that law is different

from a motor vehicle stop for purposes of enforcing the civil

traffic laws, and, consequently, in the court's balance inquiry,

probable cause rather than reasonable suspicion is necessary to

justify such a stop. While it may be true that not all civil

marijuana violations have an impact on automobile safety, to the

extent that such a consideration is of any constitutional

relevance, it seems also true that civil marijuana violations

occurring in motor vehicles do implicate concerns regarding

3

It is important to note that the authority to stop only

extends to confirming or dispelling the officer's suspicion. As

this court has recognized, the smell of burnt or unburnt

marijuana does not establish probable cause for purposes of

arrests, see Commonwealth v. Cruz, 459 Mass. 459, 472-476

(2011); searches, see Commonwealth v. Craan, 469 Mass. 24, 35

(2014); and exit orders, see Cruz, supra at 472, 476. Thus, in

order for an officer to go any further than issuing a civil

marijuana citation, the officer must possess some additional

reasonable suspicion or probable cause of criminal activity.

See Cruz, supra at 472. See also Commonwealth v. Daniel, 464

Mass. 746, 752 (2013) ("Absent articulable facts supporting a

belief that either occupant of the vehicle possessed a criminal

amount of marijuana, the search was not justified by the need to

search for contraband").

7

traffic and automobile safety.4 Indeed, sending and receiving

electronic messages has no bearing on traffic and automobile

safety when done in a park. When done while operating a motor

vehicle, however, it presents enough of a safety risk that it is

now prohibited by law. See G. L. c. 90, § 13B.5

Finally, the court concludes not only that probable cause

is necessary, but also that probable cause can be established

only if the police officer actually sees the illegal use of

marijuana. To my knowledge, we have not in the past concluded

that probable cause can only be established in this manner.

See, e.g., Washington, 459 Mass. at 40 (although officer did not

actually see defendant riding in motor vehicle without seat

belt, officer had probable cause sufficient to issue citation

4

This is not to say that the smell of marijuana alone is

sufficient to establish either reasonable suspicion or probable

cause that an individual is driving under the influence of

marijuana in violation of G. L. c. § 24 (1) (a) (1). See

Daniel, 464 Mass. at 756 (smell of burnt marijuana without any

indication that driver's capacity to operate motor vehicle was

impaired not sufficient basis for belief driver was operating

while under the influence). Nevertheless, Daniel is

distinguishable: the officer smelled "freshly burnt" marijuana

(which could have been attributable to previous use at a party)

when he approached the stopped vehicle. Id. at 749. Here, the

officer detected the odor of burnt marijuana emanating from a

moving vehicle.

5

It is also not clear under the court's analysis whether

reasonable suspicion of a civil marijuana violation would be

sufficient for stopping a pedestrian for purposes of confirming

or dispelling that suspicion and issuing a citation if

confirmed.

8

where defendant was not wearing seat belt very shortly after

traffic stop).

For these reasons, I respectfully dissent.