Professional Documents
Culture Documents
JOHN SULLIVAN*
ABSTRACT
*Candidate for Juris Doctor, New England Law | Boston (2012). B.S., Business
Management, Fisher College (2008). I would like to thank my wife Patti, my daughter Jennifer,
and my son John for their encouragement and support during the research and drafting of
this Note. I would particularly like to thank John for his commitment to reviewing and
proofreading countless drafts of this Note. Without their support, this Note would not have
been possible.
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INTRODUCTION
I
n 1948, the U.S. Supreme Court issued a seminal decision that forever
altered probable-cause analysis.1 In Johnson v. United States, the Court
held that [i]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, . . . it might very
well be found to be evidence of most persuasive character.2 Since that
decision, courts across the nation have almost uniformly held that the odor
of marijuana, standing alone, suffices to establish probable cause to believe
that marijuana is nearby.3 Thus, the mere odor of marijuana has become a
sufficient justification for the arrest and search of a suspects person or
vehicle.4
In Commonwealth v. Garden, the Massachusetts Supreme Judicial Court
(SJC) joined those states that follow the U.S. Supreme Courts decision in
Johnson.5 Because marijuana possession was punishable as a criminal
offense at the time of the Garden decision, the Commonwealths highest
court determined that [a]lthough the odor of marijuana often has been
considered in conjunction with other factors in establishing probable
cause, . . . the odor of marijuana is sufficiently distinctive that it alone can
supply probable cause to believe that marijuana is nearby.6 The
Massachusetts Appeals Court extended this holding to permit warrantless
searches of a suspects person based solely upon the odor of marijuana in
Commonwealth v. Laskoski.7
On January 2, 2009, by virtue of an initiative petition voted upon by the
Commonwealths citizens, possession of less than one ounce of marijuana
I. Background
15 Id.
16 Marcoux v. Atty Gen., 375 N.E.2d 688, 689 (Mass. 1978) (citing Blincoe v. State, 204
S.E.2d 597, 598 (Ga. 1974)); see also State v. Baker, 535 P.2d 1394, 1402-04 (Haw. 1975); State v.
Kells, 259 N.W.2d 19, 24 (Neb. 1977).
17 See MASS. GEN. LAWS ch. 94C, 34.
18 See Jennifer Lee Urbanski, Casenote, Georgia v. McCollum: Protecting Jurors from Race-
Based Peremptory Challenges but Forcing Criminal Defendants to Risk Biased Juries, 24 PAC. L.J.
1887, 1938 (1993) (explaining that the Constitution . . . grants the criminal defendant a
number of trial related rights (footnote omitted)).
19 See MASS. GEN. LAWS ch. 263, 1.
20 See U.S. CONST. amend VI; MASS. CONST. art. XII; MASS. GEN. LAWS ch. 263, 5.
21 See U.S. CONST. amend VI; MASS. CONST. art. XII; MASS. GEN. LAWS ch. 263, 6.
22See sources cited supra note 20. It should be noted, however, that this list of rights is by
no means exhaustive.
23 MASS. GEN. LAWS ch. 94C, 34.
24 See, e.g., Commonwealth v. Cousin, 873 N.E.2d 742, 746 n.8 (Mass. 2007) (explaining that
an individuals criminal record revealed a charge for possession of marijuana). In the
Commonwealth, the Department of Criminal Justice Information Services is charged with the
responsibility of maintaining criminal offender record information. See MASS. GEN. LAWS ch.
6, 168. Such information includes the data gathered about a named adult individual with
reference to a particular criminal charge from the time of arrest to the time of final
disposition. Estate of Strong v. Am. Drug Stores, Inc., No. CIV. A. 01-0851, 2002 WL 221028,
at *1 n.2 (Mass. Super. Ct. Feb. 6, 2002); see MASS. GEN. LAWS ch. 6, 167.
25 See In re Winship, 397 U.S. 358, 364 (1970) (Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due
Process Clause protects the accused against conviction except upon proof beyond a reasonable
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doubt of every fact necessary to constitute the crime with which he is charged.).
26 See MASS. GEN. LAWS ch. 94C, 34; MASS. COURT SYS., MASSACHUSETTS CRIMINAL MODEL
JURY INSTRUCTIONS NO. 7820: POSSESSION OF A CONTROLLED SUBSTANCE 1-2 (2009) [hereinafter
JURY INSTRUCTIONS: POSSESSION OF A CONTROLLED SUBSTANCE], available at
http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/
criminal/pdf/7820-possession-of-a-controlled-substance.pdf.
27 See infra text accompanying notes 28-38.
28 Commonwealth v. Dawson, 504 N.E.2d 1056, 1057 (Mass. 1987).
29 Id.
30 Id.
31Id. It should be noted, however, that the SJC suspect*ed+ it would be a rare case in
which a witnesss statement that a particular substance looked like a controlled substance
would alone be sufficient to support a conviction. Id. at 1057-58.
32 See Commonwealth v. Muller, No. 01-P-1757, 2002 WL 31686241, at *1 (Mass. App. Ct.
Nov. 27, 2002) (Absent evidence of actual possession, proof of constructive possession is
necessary.).
33 See Commonwealth v. Brzezinski, 540 N.E.2d 1325, 1331 (Mass. 1989); see, e.g.,
Commonwealth v. Minor, 716 N.E.2d 658, 659 (Mass. App. Ct. 1999) (holding that a defendant
was not a joint possessor where there was no evidence that he did more than contribute to
a pool of money with which the defendant effected [a] purchase).
34 See Brzezinski, 540 N.E.2d at 1331.
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dominion and control over the marijuana.35 Similarly, the theory of joint
possession required the Commonwealth to show that two or more
persons simultaneously and jointly acquired possession of a drug for their
own use and intended only to share it together.36
Regarding the final element, the Commonwealth had to prove that
such possession was either knowing or intentional.37 A jury was permitted
to find the existence of knowing or intentional possession if there was
evidence that the defendant possessed marijuana consciously, voluntarily,
and purposely, and not because of ignorance, mistake, or accident.38
As mentioned above, this law is no longer valid in the
Commonwealth.39 On January 2, 2009, the Massachusetts Legislature
enacted a statute decriminalizing the possession of marijuana in certain
quantities, effectively rendering moot the case-law developments
surrounding Massachusetts General Law chapter 94C, section 34.40
35 Chandanais v. Commonwealth, 862 N.E.2d 46, 48 (Mass. 2007) (quoting Brzezinski, 540
N.E.2d at 1331).
36 Commonwealth v. Cosenza, No. 07-P-1535, 2009 WL 77970, at *1 (Mass. App. Ct. Jan. 14,
2009); see Minor, 716 N.E.2d at 659 (To be a joint possessor, one must actively and personally
participate in the initial procurement of the drugs.).
37 MASS. GEN. LAWS ch. 94C, 34 (2010); see JURY INSTRUCTIONS: POSSESSION OF A
Thus, absent a proposed law that falls within any of these prohibited areas,
the people are free to create initiatives of any sort.47
To originate an initiative petition for a law, at least ten qualified
voters of the Commonwealth [must] draw up and sign an original petition
on which they put forward the full text of the law they wish to have
enacted.48 Each original signer is required to obtain a voter registration
certification from either the board of registrars or the election commission
in the city or town where they are registered to vote.49 Additionally, [e]ach
certificate of voter registration must be signed by at least three members of
the board of registrars or election commission.50 These certificates, as well
as the original petition, must then be delivered to the Massachusetts
Attorney General no later than the first Wednesday in August.51
Once the Massachusetts Attorney General receives the certificates and
the original petition, he or she must then determin[e] whether the petition
is an acceptable subject of the Initiative . . . .52 If so, a fair and concise
summary is prepared and returned to the petitioners.53 Once the petitioners
receive it, they must file both the summary and the proposed law with the
Secretary of the Commonwealth.54 The Secretary thereafter prepares blank
initiative petition forms containing the State Attorney Generals summary
for the petitioners to use in gathering signatures.55
After the Secretary prepares the initiative petition form, the petitioners
must gather a certain number of signatures in order for the petition to be
placed before the Massachusetts Legislature.56 However, [n]o more than
one-quarter of the certified signatures may come from any one county.57
Once the petitioners obtain the requisite number of signatures, the
Secretary transmits the initiative petition to the House Clerk for legislative
action . . . .58 The petition must then be reviewed by the Legislature, or a
subcommittee thereof, who must take action before the first Wednesday in
May.59 If the Legislature fails to comply with this procedure, the petitioners
may have the initiative petition placed on the ballot at the next regular
state election by obtaining a certain number of additional signatures on the
petition.60
If the initiative petition is ultimately placed on the state ballot as a
question, the Constitution requires at least thirty percent of the voters who
cast ballots to answer in the affirmative.61 Further, a majority of all the
casted ballots must also answer that question in the affirmative.62 Should
both these requirements be satisfied, the law proposed by the initiative
petition must take effect no later than thirty days following the conclusion
of the state election.63
56 Id. Specifically, the petition must contain certified signatures at least equal to 3% of the
total vote cast for all candidates for Governor . . . at the last state election. Id.
57 Id.
58 Id.
59 Id.
60 See State Ballot Question Petitions, supra note 48. The signatures of an additional 1/2 of
1% of the vote cast for Governor . . . at the last state election must be filed with the Secretary
of the Commonwealth. Id.
61 Id.
62 Id.
63 Id.
64 See Comm. for Sensible Marijuana Policy, The Initiative, SENSIBLE MARIJUANA POLY
(Aug. 1, 2008), http://sensiblemarijuanapolicy.org/home/initiative.
65 Id.
66 Id.
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67 Id.
68 Id.
69 See Rick Holmes, Common Sense on Marijuana, METRO WEST DAILY NEWS (Mar. 30, 2008),
http://www.metrowestdailynews.com/opinions/x25233736.
70 Id.
71 Comm. for Sensible Marijuana Policy, supra note 64.
72 See id.
73 See id.
74 Holmes, supra note 69.
75 See, e.g., Dan Atkinson, Voters Asked to Loosen Marijuana Laws, NEWBURYPORTNEWS.COM
(Oct. 14, 2008), http://www.newburyportnews.com/local/x845850349/Voters-asked-to-loosen-
marijuana-laws.
76 Id.
77 See David Abel, Voters Approve Marijuana Law Change, BOS. GLOBE, Nov. 5, 2008, at B6.
78 Id.
79 Id.
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80 James Kinsella, District Attorney Opposes Decriminalization of Marijuana, CAPE COD TODAY
II. The New Law: MASS. GEN. LAWS ch. 94C, Section 32L
offense.103
Once a police officer validly issues an offender a civil citation, the
offender has two options: (1) pay the $100 fine; or (2) request a formal
hearing on the matter within twenty-one days.104 While payments must be
directed to the city or town clerks office,105 requests for a formal hearing
are made to the clerk of the local district or municipal court.106 Should the
offender choose this latter option, he or she is not entitled to the full
panoply of substantive and procedural rights guaranteed a defendant in a
criminal proceeding nor will the case be tried before a jury.107 Additionally,
the citing officer is not required to be present or testify.108 Essentially,
section 32L hearings are akin to first-level clerk-magistrate hearings
[which are] currently held for civil motor vehicle infractions. Accordingly,
a police prosecutor or court liaison [will] be permitted to appear and rely
on the reports of other officers.109 In sum, section 32Ls enactment has
effectively vitiated the criminal process once employed by the
Commonwealth, and the rights attendant thereto, for those charged with
simple marijuana possession.110
IV. The Case Law: Authority to Stop, Arrest, and Search Based Solely
upon the Odor of Marijuana
a known drug user, told the officer that unidentified individuals were
smoking opium in a nearby hotel room.113 The officer then contacted four
federal narcotics agents and proceeded toward the suspect hotel room.114
Both the officer and federal agents were experienced narcotics
investigators, and they immediately detected a strong odor of burning
opium upon entering the hotel hallway.115 The officers traced the odor to a
particular hotel room and knocked on the door.116 After the officers
knocked and announced their presence, they heard some shuffling or
noise in the room before the defendant ultimately opened the door.117
Once she did so, the officers told her they wanted to speak with her, at
which point she stepped aside and allowed them to enter.118 The officers
then confronted the defendant about the strong odor of opium.119 The
defendant, however, denied the existence of any such smell.120 The officers
then informed her she was under arrest and proceeded to conduct a search
of the room.121 The search revealed both incriminating opium and a
smoking apparatus.122 The defendant was then taken into custody for
violation of the Narcotic Drugs Import and Export Act.123
Prior to trial, the defendant filed a motion to suppress the evidence
obtained from her hotel room as a violation of the Fourth Amendment to
the U.S. Constitution.124 The U.S. District Court denied the defendants
motion to suppress, and she ultimately was convicted at trial.125 The U.S.
Court of Appeals for the Ninth Circuit affirmed the District Courts
ruling.126 The defendant appealed her conviction to the U.S. Supreme
Court.127
Though the U.S. Supreme Court ultimately reversed the defendants
conviction on separate grounds,128 it specifically rejected one of the
113 Id.
114 Id.
115 Id.
116 Id.
117 Id.
118 Johnson, 333 U.S. at 12.
119 Id.
120 Id.
121 Id.
122 Id.
123 See id.; see also 21 U.S.C. 174 (2006).
124 See Johnson, 333 U.S. at 12.
125 Id.
126 Id.; Johnson v. United States, 162 F.2d 562, 564 (9th Cir. 1947).
127 Johnson, 333 U.S. at 10.
128 See id. at 17.
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Though the SJCs holding in Garden ended the dispute over whether
the odor of marijuana provided probable cause to search a vehicle, it left
unanswered the question of whether law enforcement could search ones
person based solely on the odor of marijuana.156 While that question has
been answered by the Massachusetts Appeals Court, it had yet to be ruled
upon by the Commonwealths highest court.157 In Commonwealth v.
Laskoski,158 two police officers responded to the report of a domestic dispute
159 Id.
160 Id.
161 Id.
162 Id.
163 Laskoski, 911 N.E.2d at 233.
164 Id.
165 Id.
166 Id.
167 Id. at 232.
168 See id.
169 Laskoski, 911 N.E.2d at 232.
170 Id.
171 Id.
172 See id.
173 Id.
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Accepting the trial courts explicit finding that the officer detected a strong
odor of marijuana emanating from the defendants person, the appeals
court framed the issue before it as whether there was probable cause to
search the defendant for marijuana.174 The court, citing both Johnson and
Garden, conclude[d] that the odor of marijuana, by itself, coming from the
defendants person provided probable cause to search [him].175 Thus,
based upon Massachusetts law as it existed at that time, the Appeals Court
concluded that law enforcement officers in the Commonwealth were
constitutionally permitted to search a suspects person based solely upon
the odor of marijuana.176
asked the driver to explain why he was parked in front of a fire hydrant.185
When the driver responded, one of the officers noticed that the defendant
was smoking a cigar.186 Both officers then exited their cruiser and
approached each side of the vehicle occupied by the defendant and
driver.187 From the drivers side, one officer detected a faint odor of burnt
marijuana.188
Acting on this odor, the officers ordered both the defendant and driver
to exit the vehicle.189 After they complied, one officer asked the defendant if
he had anything on his person, to which the defendant responded that
he had a little rock for myself in his pocket.190 At no time prior to the
seizure of the contraband had either officer advised the defendant of his
Miranda rights.191 Nevertheless, the officer reached into the defendants
pocket, retrieved an item which he believed to be crack cocaine, and seized
the alleged narcotic.192
Prior to trial, the defendant moved to suppress both the crack cocaine
as well as the statement he provided to the officer.193 Recognizing the
passage of section 32L, the trial court concluded that the officers were not
permitted to order the defendant from the vehicle based solely upon the
odor of marijuana,194 and the court granted the defendants motion to
suppress.195 The Commonwealth then sought interlocutory review before a
single justice of the SJC.196 The single justice allowed the Commonwealths
motion, and the SJC thereafter granted the defendants motion for direct
appellate review before the Courts full bench.197
Before the SJC, the Commonwealth asserted that despite the
decriminalization of simple marijuana possession, the odor of marijuana
still provided law enforcement officers with probable cause, or at least
reasonable suspicion, that a crime is being committed.198 Though the SJC
recognized that it previously held that the odor of marijuanaby itself
185 Id.
186 Cruz, 945 N.E.2d at 903.
187 Id.
188 Id.
189 Id.
190 Id. at 904.
191 Id.
192 Cruz, 945 N.E.2d at 904.
193 Id. at 902.
194 See id. at 904.
195 Id. at 902.
196 Id.
197 Id.
198 See Cruz, 945 N.E.2d at 904.
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ANALYSIS
cognate provisions in the Federal Constitution, the SJC has stated that it is
free to interpret *the Massachusetts+ Constitution differently from the
manner in which the [U.S.] Supreme Court interprets basically the same
language in the *Federal+ Constitution.229
To support its conclusion that the odor of marijuana no longer
provides probable cause to arrest or search, the SJCs analysis should have
proceeded under Article 14 of the Massachusetts Declaration of Rights.230
Article 14 provides in relevant part: 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.231 It was written in the historical context
of the abuses of governmental power inflicted on the colonists by British
officials, and . . . was directed at the unlawful invasion of privacy rights by
those officials. 232 Like the Fourth Amendment, Article 14:
[W]as intended by its drafters not merely to protect the citizen
against the breaking of his doors, and the rummaging of his
drawers, but also to protect Americans in their beliefs, their
thoughts, their emotions and their sensations by conferring, as
against the government, the right to bet let alonethe most
comprehensive of rights and the right most valued by civilized
men.233
Although the language of Article 14 closely tracks that found in the Fourth
Amendment to the U.S. Constitution, *t+he Massachusetts Supreme
Judicial Court interprets . . . Article 14 . . . as providing greater protection to
its citizens than does the Fourth Amendment.234
Though, the SJC has already found that Article 14 provides greater
constitutional protection than the Fourth Amendment in a variety of
contexts,235 none could have provided greater support for the courts Cruz
229 See Suffolk Dist. Atty for Suffolk Dist. v. Watson, 411 N.E.2d 1274, 1300 (Mass. 1980)
Boyd v. United States, 116 U.S. 616, 630 (1886)); Olmstead v. United States., 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting) (citation omitted).
234Mark W. Dunderdale, Totality of the Suspicious Circumstances: Airport Drug Courier Profile
Use in Massachusetts Since Commonwealth v. Torres, 5 SUFFOLK J. TRIAL & APP. ADVOC. 125,
126 (2000).
235 See, e.g., Commonwealth v. Stoute, 665 N.E.2d 93, 97 (Mass. 1996) (holding that a suspect
is seized under Article 14 once a police officer has initiated pursuit with obvious intent of
requiring the suspect to submit to questioning); Commonwealth v. Lyons, 564 N.E.2d 390, 392
(Mass. 1990) (holding that Article 14 forbids use of the totality of the circumstances test in
determining whether reasonable suspicion exists to justify an automobile stop);
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decision than its holding in Commonwealth v. Upton.236 In Upton, the SJC was
confronted with the issue of whether probable cause to issue a search
warrant should be determined by a stricter standard in th[e]
Commonwealth than under the Fourth Amendment . . . .237 In answering
that question, the SJC explained *t+he Federal test lacks the precision that .
. . can and should be articulated in stating a test for determining probable
cause.238 Accordingly, the SJC rejected the totality of the circumstances
approach in determining probable cause that previously was adopted by a
majority of the U.S. Supreme Court.239
Having decided the federal standard was unacceptably shapeless and
permissive,240 the SJC sought to develop a more rigorous standard to be
applied by the courts of the Commonwealth in evaluating the existence of
probable cause.241 To accomplish that objective, the SJC analyzed the extent
to which Article 14 provides greater protection than the Fourth
Amendment in the probable-cause context.242 The SJC concluded that
Article 14 provides more substantive protection to criminal defendants
than does the Fourth Amendment in the determination of probable
cause.243 On this basis, the SJC held that the test for determining probable
cause is stricter under [Article] 14 . . . than under the Fourth
Amendment.244
With this legal backdrop in mind, the SJC should have supported its
conclusion using principles of state constitutional law rather than using an
analysis of search warrants and their underlying statutory framework.245
Essentially, the SJC should have held that because the test for probable
cause is stricter under Article 14 than under the Fourth Amendment, and
because Johnson was decided under principles of Fourth Amendment
jurisprudence, Johnson could no longer be used as persuasive authority in
Commonwealth v. Amendola, 550 N.E.2d 121, 125 (Mass. 1990) (adopting an automatic
standing rule under Article 14 permitting a criminal defendant to challenge the
constitutionality of a search or seizure even where he or she lacks a reasonable expectation of
privacy in the place or object searched or seized); Blood, 507 N.E.2d at 1037 (holding that
Article 14 forbids warrantless electronic surveillance of conversations where only one party to
the conversation provided consent).
236 476 N.E.2d 548 (Mass. 1985).
237 Id. at 550.
238 Id. at 556.
239 Id.
240 Id. (quoting Commonwealth v. Upton, 458 N.E.2d 717, 724 (Mass. 1983)).
241 See id. at 554.
242 See Upton, 476 N.E.2d at 556.
243 Id.
244 Id. at 550.
245 See supra text accompanying notes 214-217.
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The salient issue before the SJC in Cruz was whether the odor of
marijuana, standing alone, continued to provide law enforcement with
probable cause to arrest and search in light of section 32Ls enactment.249
Simply resolving this issue in the negative, as the SJC did, would have
been more than sufficient to satisfy the dispute between the parties.
Nevertheless, the SJC took a proverbial quantum leap when it
determined that the odor of marijuana failed to satisfy even the minimal
level of suspicion required to support a Terry stop.250
By concluding that the odor of marijuana fails to provide law
enforcement with any level of constitutional justification, the SJC
significantly undercut the integrity of its Cruz opinion as a whole.251
Additionally, the court effectively removed the authority of police to
enforce section 32L.252 Cruz fails to account for the fact that simple
marijuana possession has not been legalized, and law enforcement is still
responsible for issuing civil citations for possession of less than one ounce
of marijuana.253
To determine the appropriate scope of detention for law enforcement
to issue a section 32L citation, the law surrounding civil motor vehicle
infractions is particularly instructive.254 Under Massachusetts statutory law,
a police officer who observes a civil motor vehicle infraction is authorized
to issue the violator a written warning or traffic citation.255 There is no
formal trial on the violation, and the offender is only entitled to a hearing if
he or she chooses to appeal.256 The violators payment of the citation
257 Id.
258 See id.
259 Commonwealth v. Mullen, 664 N.E.2d 854, 857 (Mass. App. Ct. 1996).
260 See infra text accompanying notes 278-84.
261
United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting United States v.
Cummins, 920 F.2d 498, 502 (8th Cir. 1990)).
262 State v. Ladson, 979 P.2d 833, 844-45 (Wash. 1999) (Madsen, J., dissenting).
263Commonwealth v. Alvarez, 692 N.E.2d 106, 108 (Mass. App. Ct. 1998) (internal citations
omitted).
264 Law Enforcement Q&A, supra note 95.
265 MASS. GEN. LAWS ch. 90C, 3 (2010); ch. 94C, 32L (2010).
266 See, e.g., Commonwealth v. Gordon, 716 N.E.2d 1036, 1038 (Mass. App. Ct. 1999)
(Miranda warnings . . . are unnecessary in the typical traffic stop, . . . even though one who is
stopped by a police officer for a traffic violation . . . does not feel free to leave. (internal
citation omitted)).
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traffic stop does not constitute custody for the purpose of issuing
Miranda warnings.267 In recognition of this holding, law enforcements
authority to detain a suspect for a violation of section 32L should be the
same as that constitutionally provided for with civil motor vehicle
infractions.
Unlike the SJCs decision in Cruz, this Note provides both a practical
and reasonable resolution to the tension between section 32L and existing
search-and-seizure jurisprudence in Massachusetts. In light of the
similarities between sanctions for section 32L and civil motor vehicle
infractions, the level of constitutional justification provided by the odor of
marijuana should keep the scope of intrusion the same for each. To further
that objective, the appropriate balance between law enforcements civil
citation authority and section 32Ls decriminalization of simple marijuana
possession is that the odor of marijuana should now provide law
enforcement with reasonable suspicion that marijuana is nearby.268
Opponents will argue that the SJC could never constitutionally adopt
the analysis set forth above. They will assert that, as the SJC explained in
Cruz, the probable cause and reasonable suspicion analyses contemplate
only justification to stop or arrest for criminal but not civil violations.269 Any
such suggestion, however, would be entirely without merit.
The SJCs holding that the probable-cause and reasonable-suspicion
analyses have no application to infractionary conduct flies in the face of the
its holding in Commonwealth v. Washington.270 In Washington, the defendant
filed a motion to suppress physical evidence on the ground that law
enforcement obtained the evidence as the result of an unlawful exit order
from his vehicle.271 In affirming the trial courts denial of the defendants
motion to suppress, the SJC explained that [p]robable cause is the
appropriate level of certainty for the issuance of a seat belt law citation
because that issuance concludes a police officers determination of a civil
motor vehicle infraction.272 Stated otherwise, the Washington case saw the
SJC apply the probable cause standard to a non-criminal infraction.273
At the outset, it must be noted that Washington was decided by the SJC
in 2011approximately six weeks before Cruz274 and more than two years
after section 32L was enacted.275 For the SJC to reach two diametrically
opposed conclusions on an identical subject less than two months apart
shows a significant flaw in the courts legal reasoning.276 Additionally, it
further supports the position that the odor of marijuana should continue to
provide law enforcement with at least some level of constitutional
justification to detain a suspected violator of section 32L.
Opponents will assert that use of the reasonable suspicion standard to
justify investigatory detentions under section 32L would violate both the
state and federal constitutions. Such an argument, however, would
misconstrue the true scope of the reasonable-suspicion analysis.277
Under both the Massachusetts and Federal Constitutions, law
enforcement officers are entitled to make a threshold inquiry where
suspicious conduct gives the officer reason to suspect that a person has
committed, is committing, or is about to commit an offense.278 Police are
permitted to detain a suspect during an investigatory stop,279 as long as the
detention is commensurate with the purpose of the stop.280 Such
detention may last as long as necessary, so long as the police diligently
pursue[] a means of investigation that [i]s likely to confirm or dispel their
suspicions quickly, during which time it [i]s necessary to detain the
[suspect].281
Under the Cruz decision, there is essentially no authority for law
enforcement to detain a suspect for the purpose of ascertaining whether a
section 32L violation has occurred nor is there any legal basis to detain a
suspect pending issuance of a citation when the violation has been
confirmed.282 Under the courts opinion, it appears that law enforcement
must run alongside the suspect while issuing the citation in order to
comply with the constitutional mandate.283 This anomalous consequence of
the SJCs opinion surely could not have been intended. Because section 32L
violations are similar, if not functionally the same as, civil motor vehicle
infractions, law enforcement must be given the authority to detain a
suspect based upon the odor of marijuana to determine whether a section
drivers erratic and dangerous operation of the SUV but by the passengers
movements in the vicinity of the glove box.297 This combination of facts
effectively provided the officer with the elevated standard of probable
cause, exceeding reasonable suspicion, and thereby justifying the officers
actions in conducting a search of the vehicle under the motor vehicle
exception to the warrant requirement rule.298
Had the officer smelled the odor of burnt marijuana under
circumstances that did not involve traffic violations, furtive movements, or
any other combination of bolstering criteria, and then in light of Cruz, he
would not have had the authority to even stop the vehicle much less
inquire as to the presence of any drugs.299 Therefore, the courts holding in
Daniel reinforces the assertion that had the mere odor of burnt marijuana,
by itself, provided the officer with reasonable suspicion under those same
circumstances to conduct a threshold inquiry as to the presence of any
drugs, then arguably the results would have been the same.300 Presumably
the driver would still have voluntarily relinquished the drugs in her
possession and the passenger would almost certainly have exhibited the
same furtive movements in his attempt to conceal the weapon in the glove
box.301
Given the foregoing, the SJCs current reasoning essentially renders
section 32L unenforceable. The decision denies police officers the minimum
authority to make inquiries pursuant to the reasonable suspicion standard
when confronted with the odor of burnt marijuana, absent additional facts,
such as those outlined in Daniel.302 This limits law enforcements ability to
investigate suspected section 32L violations.303
The analysis set forth above represents the best resolution to an
obviously difficult legal issue. It recognizes the need for law enforcement
to retain the authority to conduct a threshold inquiry to issue citations for
or less of marijuana from a crime to a civil violation, [thus] . . . the odor of burnt marijuana
alone cannot reasonably provide suspicion of criminal activity . . . .).
300 See 962 N.E.2d at 219.
301 Id. at 216, 218.
302 See id.
303 See Cruz, 945 N.E.2d at 908 (*T+he lesser standard of reasonable suspicion is tied, by its
CONCLUSION
The SJCs decision in Cruz renders section 32L nothing more than a
mere nullity. Under the courts opinion, law enforcement no longer has the
authority to stop or detain a suspect based solely upon the odor of
marijuana. Without such authority, law enforcement will be unable to
investigate suspects for violations of section 32L, and violations under the
statute are likely to go unpunished. The courts decision has thus, for all
practical purposes, legalized possession of marijuana in Massachusetts.
While the SJC appropriately determined that the Commonwealths
search and seizure jurisprudence had to be altered in recognition of the
legislative change, the court simply went too far by removing the authority
of law enforcement to stop and detain a suspect based upon the odor of
marijuana. Admittedly, the odor of marijuana does notand indeed,
should notprovide law enforcement with probable cause to arrest or
search. Nevertheless, it should most certainly provide a police officer with
a reasonable suspicion to detain a suspect pending investigation for a
violation of section 32L. This unjust legal conclusion on the part of the SJC
has effectively removed any authority for the police to enforce section 32L.
That being the case, the SJC has taken a step even further than the
Committee backing section 32L in the movement to legalize marijuana.