Massachusetts Appeals Court Criticizes Supreme Judicial Court’s Recent Marijuana Jurisprudence

A three-judge panel of the Massachusetts Appeals Court today upheld a trial judge’s order to suppress 159 pounds of marijuana discovered in a minivan being driven by the defendant, but criticized the Supreme Judicial Court ruling that compelled their decision.  The name of the case is Commonwealth v. Locke. 

The defendant was charged with trafficking marijuana after his arrest by state troopers in December of 2011.  Two troopers saw the defendant erratically driving a minivan on Route 84 in Sturbridge.  They pulled over the van and approached the defendant, who was driving and appeared to be very nervous.  The troopers learned the van had been rented by the defendant’s uncle two days earlier.  There was a man seated in the front passenger seat who quietly stared straight ahead while the troopers talked to the defendant.   During their conversation with the defendant, the troopers identified a “very strong” odor of unburned marijuana coming from the vehicle.  There were multiple air fresheners in the van, which are commonly used by drug dealers to mask the smell of marijuana.  The troopers decided to call for backup and requested that a drug-detection dog report to the scene.

The troopers asked the defendant and his passenger to get out of the van and they were each patfrisked.  Nothing was found on the defendant but his passenger was in possession of $3,500 in cash.  The defendant said he did not have any marijuana in the van, but he and his passenger had smoked marijuana earlier in the day.  When the drug detection dog arrived, it made a positive hit for narcotics near the back of the van.  The troopers then searched the rear cargo area and discovered seven bundles of marijuana weighing 159 pounds hidden under a tarp.  The defendant and the passenger were arrested and charged with drug trafficking.  They filed a motion to suppress the marijuana, arguing the troopers had violated their constitutional rights by searching the van without a warrant.  A judge agreed the search was unconstitutional and suppressed the marijuana.  The Commonwealth appealed and the Appeals Court reluctantly affirmed the order of suppression.

The Court ruled that the troopers’ stop of the van was proper, as they witnessed several motor vehicle infractions.  However, the troopers did not have the authority to order the defendant and his passenger out of the car, as their conduct would not have caused a reasonable police officer to fear for his safety (neither the defendant nor his passenger made any furtive movements or appeared to hide any object before they interacted with the troopers).  Therefore, once the defendant produced his license, the van’s rental agreement, and the registration, he should have been cited for the motor vehicle infractions and permitted to drive away.  The Commonwealth argued on appeal that the troopers had probable cause to detain the defendant and search his van as a result of the strong odor of marijuana, the presence of air fresheners, the nervousness of the defendant, and the fact that his name was not on the rental agreement.  The Court did not accept the Commonwealth’s argument, correctly pointing out that Supreme Judicial Court has specifically rejected the argument that a police officer can identify the amount of marijuana based on odor alone.  This recently became important when the Legislature decriminalized the possession of less than one ounce of marijuana.  As a result of the decriminalization, search and seizure law in Massachusetts changed drastically.  Whereas police officers were previously permitted to search cars whenever there was a smell of marijuana, the new rule is that odor alone (even a strong odor) will not justify a motor vehicle search.  Accordingly, the troopers’ search of the car here was unconstitutional and the marijuana is inadmissible against the defendant, which will result in the dismissal of his case.

This case is notable not for the Appeals Court’s conclusion (which is an obviously correct application of Supreme Judicial Court precedent), but for its extraordinarily unusual criticism of the SJC.  The Appeals Court noted that the SJC’s recent caselaw regarding marijuana and vehicle searches is based on the principle that a police officer cannot determine how much marijuana is present based on smell alone.  This panel of the Appeals Court asserts that while it’s true a precise quantity of marijuana cannot be determined by smell, a relative quantity can be determined.  The Court pointed out that this case involved 2,544 ounces of marijuana, which would undoubtedly smell stronger than one ounce.  The Appeals Court argued that when the troopers detected a “very strong” smell of marijuana, they had reasonable suspicion or probable cause to justify their search.  Nevertheless, because the SJC has already decided the issue, the Appeals Court was obligated to abide by the SJC ruling.

In the eight years since marijuana was decriminalized in Massachusetts, the SJC has drastically changed search and seizure law as it relates to motor vehicle searches.  This summer three of the seven SJC justices are retiring and there will be three new justices taking their places next term.  It will be interesting to see whether the new composition of the Court will impact this area of the law.