Criminal procedure - the impact of marijuana decriminalization on searches and seizures in Massachusetts - Commonwealth v. Cruz.

• Author: Lidington, Beth

Criminal Procedure--The Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts--Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011)

Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures. (1) Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity. (2) In Commonwealth v. Cruz, (3) a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L). (4) The court held that the odor of burnt marijuana alone is no longer sufficient to establish reasonable suspicion of criminal activity and, accordingly, an exit order is impermissible. (5)

On June 24, 2009, in a high-crime area of Boston, two patrolling police officers pulled up beside a vehicle parked in front of a fire hydrant. (6) The defendant, Benjamin Cruz, was seated on the passenger side of the vehicle, and an unidentified person was in the driver's seat. (7) When the officers approached the vehicle, they could smell a "faint odor" of burnt marijuana. (8) The officers testified that both occupants appeared nervous, and the driver admitted he had smoked marijuana "earlier in the day." (9) The officers ordered the occupants out of the vehicle and asked Cruz if he had anything in his possession; Cruz replied he had "a little rock for [him]self in his pocket, which the officers retrieved. (10)

The Commonwealth charged Cruz with multiple counts of possession of a class B controlled substance. (11) He filed a motion to suppress the seized crack cocaine and his admission to the officers. (12) The judge granted the motion on the grounds that an odor of burnt marijuana did not establish probable cause to suspect the presence of more than one ounce, the amount necessary for a criminal offense. (13) The SJC allowed the Commonwealth's petition for interlocutory appeal and affirmed the motion judge's ruling, holding that the odor of burnt marijuana alone does not establish probable cause or reasonable suspicion of criminal activity to justify an exit order to a passenger in a vehicle. (14)

Freedom from unreasonable searches and seizures is a constitutionally protected right. (15) Ordering a passenger from a validly stopped vehicle is a highly intrusive measure and is therefore subject to close judicial scrutiny. (16) There are three possible scenarios that justify an exit order in these circumstances: if there is a reasonable belief that the safety of the police or others is in danger; if there is a reasonable suspicion that the passenger is engaged in criminal activity separate from any offense of the driver; and as a practical measure to facilitate a warrantless search under the automobile exception, which requires probable cause to believe crime evidence or contraband is present. (17)

Prior to the passage of section 32L, the odor of burnt marijuana alone established both reasonable suspicion of criminal activity and probable cause to believe that contraband or evidence of a crime was present. (18) States that have enacted similar laws offer a glimpse of decriminalization's impact on search-and-seizure principles and illustrate the various approaches to warrantless search standards. (19) In Oregon and Maine, although the odor of burnt marijuana alone does not justify reasonable suspicion of criminal activity, a warrantless search is nevertheless justified under the automobile exception. (20) These states generally reason that the odor of burnt marijuana alone establishes probable cause to believe that contraband--criminal or noncriminal--is present. (21)

Although section 32L decriminalizes possession of an ounce or less of marijuana in Massachusetts, this amount remains illegal and is subject to forfeiture. (22) Chapter 276 of the Massachusetts General Laws (chapter 276) governs applications for search warrants and thus determines whether an ounce or less of marijuana--noncriminal contraband--may be the valid object of a search. (23) Accordingly, an officer acting under the automobile exception must show the same level of probable cause to believe that one of the five bases prescribed by chapter 276 has occurred, or is occurring. (24) While the first two bases contain "criminal" language, the third basis involves probable cause to believe the presence of "property or articles the possession or control of which is unlawful." (25) Nonetheless, in Robinson v. Richardson, (26) the SJC indicated that search warrants are solely for "the suppression of crime or the detection and punishment of criminals." (27)

In Commonwealth v. Cruz, the SJC sought to answer whether, under section 32L, police officers may issue an exit order to a passenger in a vehicle based solely on the odor of burnt marijuana. (28) Recognizing the limited number of circumstances that permit an officer to order a passenger from a vehicle, the court analyzed the two potential justifications before them: reasonable suspicion of criminal activity and probable cause under the automobile exception. (29) The court first concluded that the standard of reasonable suspicion, a lower burden of proof, may only apply to criminal activity. (30) The court then reasoned that while the odor of burnt marijuana alone may indicate infractionary conduct, it cannot support a reasonable suspicion of criminal activity. (31) Accordingly, the court held that the odor of burnt marijuana does not permit an exit order of a passenger under the reasonable suspicion standard. (32)

The court, in considering the exit order to a passenger under the automobile exception, addressed two potential issues. (33) The first was whether the odor of burnt marijuana alone provides probable cause--a more stringent standard--to believe criminal evidence or contraband is present. (34) After determining that odor alone does not pass the lower standard of reasonable suspicion, the court concluded that, without more, odor cannot satisfy the probable cause standard in regard to criminal contraband or evidence. (35) The second issue before the court was whether the governing standard for search warrants nevertheless permits searches for noncriminal contraband. (36) The court rejected the reasoning of the Oregon and Maine courts, whereby a warrantless search for criminal or noncriminal contraband is permissible under like circumstances. (37) The court stressed that Massachusetts search-and-seizure jurisprudence emphasizes the requirement of a criminal element, and therefore held that searches must be confined to areas of criminality--a standard not met based on the odor of burnt marijuana alone. (38)

The SJC correctly concluded that under section 32L, the odor of burnt marijuana alone no longer provides reasonable suspicion, much less probable cause, of criminal activity. (39) While it is true that the odor of marijuana alone may provide an attenuated relationship to the possibility of criminal activity, the connection does not satisfy the underlying standard of reasonableness, as a mere "hunch will not suffice." (40) The court also identified other circumstances that would likely provide reasonable suspicion of criminal activity, such as drug paraphernalia in plain view or a "strong odor of fresh marijuana." (41) In addition, the court did not discount the role of surrounding circumstances in its determination of reasonable suspicion, such as furtive movements by occupants in a vehicle, knowledge of an individual's history of violence, or any other factors recognized as salient considerations for establishing reasonable suspicion. (42)

In regard to whether a search may be...