Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.
Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver’s side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger’s seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.
Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.
This issue is whether the search was permissible.
The Court first looked to the recently enacted Massachusetts General Law, chapter 94C, section 32L, which decriminalizes possession of an ounce or less of marijuana. Subsequent case law, Commonwealth v. Cruz, determined that the smell of marijuana alone does not give officers probable cause to believe that specific criminal activity is underway. An officer needs probable cause in order to conduct a search, meaning that a reasonable person believed the actions of the officer were appropriate from the circumstances surrounding the search.
The Court explained that because of the statute and Cruz, citizens at most expect a civil fine when in possession of an ounce or less of marijuana. Conversely, citizens do not expect a significant intrusion of liberty and privacy with a search. Since there were no other articulable facts besides the smell of marijuana, the officer did not have probable cause to search either occupant or the vehicle.
While the Commonwealth also argued that the search was justified because the officer was concerned for his own safety, the Court did not find there was enough evidence to justify the search. When a search is prompted because of officer safety, the officer must establish a reasonable basis for the exit order and the intrusiveness of the search must be proportionate to the degree of suspicion that prompted the search.
The Court found no evidence to support the officer’s justification for the search. There are no facts to indicate that either of the occupant was carrying a dangerous weapon.
The Commonwealth also attempted to assert that the search was justified because the driver was operating under the influence of marijuana. The Court quickly dismissed this claim because there were no facts to support the claim. The driver was not driving erratically, she did not have glassy eyes, there was nothing unusual about the driver’s speech or movement, and she was cooperative throughout the interaction.
The conclusion that the Court came to was consistent with holding in Cruz, limiting an officer’s ability to search a person or a vehicle based on the smell of marijuana alone. It also expands upon an officer’s ability to search based on personal safety or the possibility of the driver being under the influence, absent articulable facts to support the officer’s claim.