Controlled Substances, Search and Seizure, Probable Cause, Evidence, Odor | MassCops

Controlled Substances, Search and Seizure, Probable Cause, Evidence, Odor

Discussion in 'Court Decisions' started by Crvtte65, Aug 18, 2009.

  1. Crvtte65

    Crvtte65 Moderator

    No. 08-P-1993.
    May 6, 2009. - August 18, 2009.
    Controlled Substances. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure. Search and Seizure, Probable cause. Probable Cause.

    COMPLAINT received and sworn to in the Greenfield Division of the District Court Department on April 14, 2008.

    A pretrial motion to suppress evidence was heard by Arthur F. Haley, III, J.

    An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

    Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.

    Richard S. Jacobs for the defendant.

    Present: Trainor, Smith, & Graham, JJ.

    SMITH, J.

    On April 14, 2008, the defendant was arraigned in the District Court on a complaint charging him with possession of a class D controlled substance. G.L. c. 94, § 34. On August 18, 2008, the defendant filed a motion to suppress evidence seized from his person and any other evidence seized as a result of a patfrisk or search.

    At the hearing on the motion, the defendant claimed that he was subject to a patfrisk without the police having reasonable suspicion that he had a weapon. The Commonwealth responded that the officer did indeed have a reasonable suspicion to conduct a patfrisk for weapons and that, in any event, the police had probable cause to search the defendant as a result of a strong odor of burnt marijuana coming from his clothes.

    After the hearing, a judge of the District Court allowed the defendant's motion. The Commonwealth's motion for reconsideration was denied, and a single justice of the Supreme Judicial Court granted the Commonwealth's application for interlocutory review of the District Court judge's ruling pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).

    On appeal, the Commonwealth concedes that the search of the defendant was not justified as a patfrisk for weapons. Rather, it maintains that the officer had probable cause to search the defendant because of the strong odor of burnt marijuana coming from him.

    We summarize the facts as found by the motion judge, supplemented by uncontested testimony from the suppression hearing. See Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007).

    In the early morning hours of April 13, 2008, Officer Jason Haskins and Sergeant Viorel Bobe responded to a report of a domestic dispute at a parking lot in Greenfield. A person had telephoned the police department stating that there was an ongoing argument and that a man was being attacked by a woman wielding a bottle. As the police drove into the parking lot, the couple separated. The officers stepped out of their police cruiser; Sergeant Bobe escorted the female to one end of the parking lot, while Officer Haskins approached the defendant. Almost immediately, the officer noted a "pretty strong odor of burnt marijuana" coming from the defendant.

    Officer Haskins told the defendant that because the incident appeared to be a "heated domestic argument," he wanted to make sure that the defendant did not have any weapons on his person, and therefore he planned to pat frisk him. As a result of the frisk, the officer felt and removed two objects from the defendant's front pocket, an Altoid container and a snuff container, one of which contained a substance that the officer recognized as marijuana. A search of the defendant's vehicle revealed a small amount of marijuana in a plastic bag. [FN1]

    The judge allowed the suppression motion on the ground that the officer lacked particular facts from which a reasonable inference could be drawn that the defendant was armed and presented a danger to the officer or others. We agree with the motion judge's conclusion that the patfrisk for weapons was not based on reasonable suspicion. However, the motion judge did not rule on the Commonwealth's claim that, in any event, the officer had probable cause to search the defendant for marijuana. We reverse the order allowing the motion to suppress, because we conclude that the officer did indeed have probable cause to search the defendant for marijuana.

    Discussion. "We accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). See Commonwealth v. Gomes, 453 Mass. 506, 509 (2009).

    It is undisputed that Officer Haskins's patfrisk of the defendant was based on his subjective belief that because a domestic dispute had taken place, the defendant might have had a weapon on his person. The officer's subjective belief, however, did not negate the propriety of a search based on probable cause for marijuana. See Commonwealth v. Murdough, 428 Mass. 760, 762 (1999), citing Whren v. United States, 517 U.S. 806, 812 (1996). Therefore, because probable cause is measured by an objective standard, if the objective circumstances were sufficient to justify a search of the defendant, Officer Haskins's subjective intent would be irrelevant. See Commonwealth v. Murdough, supra at 765 (stating that Whren decision "teaches that, if the objective circumstances justify the action taken, that is enough"). The issue, therefore, is whether there was probable cause to search the defendant for marijuana.

    "Probable cause exists where 'the facts and circumstances within ... [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed." Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting from Brinegar v. United States, 338 U.S. 160, 175-176 (1949). "In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Commonwealth v. Garden, 451 Mass. 43, 47 (2008), quoting from Commonwealth v. Cast, 407 Mass. 891, 895 (1990).

    Here, the motion judge made a finding that when Officer Haskins spoke with the defendant, he "almost immediately noted the odor of burned marijuana." That finding was based on the officer's testimony that before the pat frisk, the odor of burnt marijuana was "pretty strong" and that it came from the defendant's person.

    In Johnson v. United States, 333 U.S. 10, 13 (1948), the United States Supreme Court ruled that odors alone may be sufficient to satisfy the probable cause requirement of the Fourth Amendment to the United States Constitution. The Court stated that "f the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify the issuance of search warrant." Ibid. The Supreme Judicial Court has held that under certain circumstances the odor of marijuana, by itself, has supplied probable cause. See Commonwealth v. Garden, supra at 47-49 ("odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby"; thus, odor of burnt marijuana coming from vehicle occupant's clothes supplied probable cause for search of vehicle). [FN2] See also Commonwealth v. Lawrence L., 439 Mass. 817, 823-824 (2003) (detection of strong smell of marijuana on clothes of juvenile while at school provided probable cause for school official to search him); Commonwealth v. Streeter, 71 Mass.App.Ct. 430, 437 (2008) (strong odor of marijuana coming from apartment provided probable cause for police to believe that there was marijuana in that apartment).

    Here, the odor of marijuana was detected not in the confines of a vehicle, in a school setting, or coming from an apartment, but rather in the open. We conclude that the odor of marijuana, by itself, coming from the defendant's person provided probable cause to search the defendant. The order allowing the motion to suppress is reversed.

    So ordered.

    [FONT=Verdana,Helvetica] [/FONT]
    [FONT=Verdana,Helvetica]FN1. The defendant gave the officers permission to open the vehicle door to obtain a prescription bottle for two pills found on the defendant's person. According to the testimony of Sergeant Bobe, the bag of marijuana was in plain sight on the vehicle's console.[/FONT][FONT=Verdana,Helvetica]

    [/FONT][FONT=Verdana,Helvetica] [/FONT]
    [FONT=Verdana,Helvetica]FN2. In Commonwealth v. Garden, supra at 48 & n. 7, the court emphasized [/FONT][FONT=Verdana,Helvetica] [/FONT][FONT=Verdana,Helvetica] [/FONT]
    [FONT=Verdana,Helvetica]that the odor must be detected by "one qualified to know" the odor before such a detection can provide sufficient probable cause to support a warrantless search. In this matter, at the point where the prosecutor asked Officer Haskins how long he had been a police officer, defense counsel stated he was "willing to stipulate to Officer Haskins' expertise." That stipulation was sufficient to meet the Garden requirement that the odor be "detected by an officer with the ability to identify the smell." Id. at 49.[/FONT][FONT=Verdana,Helvetica]
  2. Boston Irish Lass

    Boston Irish Lass MassCops Member

    If you're searching someone isn't anything you find subject to arrest? I might be reading this wrong, but if he was searching due to a strong odor of marijuana then that's ALL he was allowed to *find* ? He was indeed being searched to begin with because it was a domestic.

    What difference does it make what he was originally searching for? And people stay in LE in Massachusetts why? Good Lord - I've never seen so many *rights in my life.
  3. Varanus224

    Varanus224 MassCops Member


    The smell of the pot gave trigger to the right to search for pot. If anything else is found on him while he's searching for pot it would be good to go because during the search it's inevitable to find.

    The domestic aspect has very little to do with the legal question here. If just relying on that then the officer could of articulated for a patfrisk which is a search for weapons only (yet again though if something is inevitably found:Good to go)

    It may suck and im telling you right now I'm not a liberal in any sense but, your right we as Americans have alot of rights due to the 4th amendment. Alot of guys take the oath to defend the constituion and end up cursing it and complaining about it but in the end its what makes America, America.

    Please someone feel free to boot the soapbox out from underneath me
  4. Boston Irish Lass

    Boston Irish Lass MassCops Member

    Not at all Varanus. I simply wasn't understanding what the problem was. Shocking. I was reading it as if he hadn't found certain things properly because he was looking for something else. I love having my *rights* I don't always grasp the legal loopholes. Thank you for the clarification.
  5. Irish Wampanoag

    Irish Wampanoag Subscribing Member

    It may suck and im telling you right now I'm not a liberal in any sense but, your right we as Americans have alot of rights due to the 4th amendment. Alot of guys take the oath to defend the constituion and end up cursing it and complaining about it but in the end its what makes America, America.

    If you support the 4th amendment you are a conservitive not a liberal

    Massachusetts protects these rights much more in it's own constitution in article 14

    [FONT=Times New Roman, Times, serif]A Declaration of the Rights of the Inhabitants[/FONT]
    [FONT=Times New Roman, Times, serif]of the Commonwealth of Massachusetts[/FONT]

    Article XIV. Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

    Folks on this site like to throw around the word liberal when in fact it couldnt be more further from the some cases
  6. Varanus224

    Varanus224 MassCops Member

    Phewww Wamp,

    Thanks for settling me down. I really though I was about to turn. Thankfully my test results came back negative for Liberalism.

    Just goes to show you get scratched by a hippie take it serious!!!!!
  7. Irish Wampanoag

    Irish Wampanoag Subscribing Member

    True Conservatism=
    Government should be small and limited, stay out of people lives whether trying to do good or not. Government is set up for two reasons only, civilization of a people and protection for the people from foreign or domestic entities or actions. Leave economic status, personal choice,(limited to what nature has to offer) property ownership, personal wealth, religious beliefs and medicine alone. Any rights a loud 200 years ago should be a loud today unregulated and undesturbed...
  8. themace

    themace New Member

    make sure you fellas know what the law is, I'd hate to see taxpayer dollars wasted in a courtroom. The Odor of Marijuana no longer constitutes probable cause for a search in massachusetts. The main points made given in the conclusion were:&lt;br&gt;&lt;br&gt;&lt;br&gt;A warrantless search in Massachusetts must be based on probable cause of criminal activity.&lt;br&gt;Possession of Marijuana under 1oz is a civil not criminal infraction, and as such those in possession of marijuana under that amount should be treated as one would treat someone who has&amp;nbsp;committed&amp;nbsp;&lt;em&gt;"noncriminal disposition violations of municipal ordinances, bylaws, rules and regulations."&lt;/em&gt; and that &lt;em&gt;"Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public nor in accord with the plain language of the statute."&lt;/em&gt;&lt;br&gt;&lt;em&gt;"Given our conclusion that G. L. c. 94C, §§ 32L-32N, has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation,&amp;nbsp;without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order."&lt;br&gt; "The degree of intrusiveness that is permitted is that which is 'proportional to the degree of suspicion that prompted the intrusion'"&lt;/em&gt; The judge ruled that mere smell of marijuana, while indeed giving the&amp;nbsp;suspicion&amp;nbsp;that contraband may be in the vehicle, is not proportional the the&amp;nbsp;intrusiveness&amp;nbsp;of a warrantless search. Also supported by the public's desire for police to concentrate on more serious criminal&amp;nbsp;pursuits&amp;nbsp;than civil infraction possession of marijuana&lt;br&gt;&lt;br&gt;<br>
  9. csauce777

    csauce777 Supporting Member

    Thanks for the update. None of us had any idea about this change!

    Go hit your bong and take another nap.
  10. Irishpride

    Irishpride Subscribing Member

    This just reinforces the need for us to get consent to search from people during encounter. If I'm talking to someone on a call or a field encounter and I'm not concerned about weapons I asks for permission to "search" them. I never ask for permission to do a "pat down" or to "check for weapons" once someone has consented to a search of their person I'm not restricting the search for weapons. Of course this becomes a motion to suppress issue but that's life and I haven't had any cases tossed on it yet. With vehicles, residences, and cell phones I always want to get a written consent to search but the verbal consent has been fine so far regarding consent to search the person.
  11. kwflatbed

    kwflatbed MassCops Angel Staff Member

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