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Massachusetts Supreme Judicial Court holds that smell of burnt marijuana is insufficient to justify an exit order

The Massachusetts Supreme Judicial Court addressed an important legal issues that arose once the Massachusetts legislature decriminalized simple possession of under one ounce of marijuana. Does the smell of burnt marijuana justify an order that a motorist exit a motor vehicle. In the case of Commonwealth v. Cruz, decided April 19, 2011, the SJC held that the smell of burnt marijuana alone does not justify an exit order.

The Cruz case involved the following facts. The defendant was a passenger in a car parked in front of a fire hydrant. The windows were rolled down in the car and the officers could see the driver light a cigar known to mask the smell of marijuana. The officers recognized the defendant and testified at the motion to suppress hearing that they saw the defendant smoking marijuana earlier in the day. Significantly, the defendant was not known to the officers as a dangerous person and even was counseled by one of the officers to “do more than hang out.” The driver was unknown to the officers. The officers further testified at the motion hearing that the defendant was smoking a cigar, that they could smell an odor of burnt marijuana and that the driver appeared nervous. The defendant and the driver were ordered out of the car.

In finding the exit order improper under Article 14 of the Massachusetts Declaration of Rights, the court stressed that by decriminalizing possession of under an ounce of marijuana the voters changed the status of the offense, meaning that the voters intended possession of marijuana under an ounce to be treated different from other serious drug crimes. Accordingly, the SJC concluded that the changed status of the offense implicates police conduct and requires some additional facts other than the smell of burnt marijuana to justify an exit order.

Under Massachusetts law, police must have a basis to support an exit order under Article 14 of the Declaration of Rights. An exit order is permissible in Massachusetts in one of three circumstances:

1. The police have a reasonable belief that their safety is in danger;
2. The officer has reasonable suspicion that the defendant is committing a criminal offense, other than a traffic violation.
3. The officer can order a defendant from the car if there is a legal basis for a warrantless search of the vehicle under the automobile exception to the warrant requirement.

Massachusetts provides greater protections to citizens under Article 14 than under the Fourth Amendment to the United States Constitution as under the Fourth Amendment as interpreted by the United States Supreme Court, the police do not need any basis to order a motorist from the vehicle.

In Cruz, the Commonwealth argued that the exit order was justified based on the officer’s belief that the defendant was engaged in criminal activity. The SJC held that there were no facts that would support the conclusion that a criminal amount of narcotics were in the vehicle. Further, the court rejected the reasoning of other State courts finding probable cause to believe a vehicle has any quantity of marijuana is sufficient to justify a warrantless search based on the likely presence of other contraband. In rejecting these other State court decisions, the SJC stressed that the standard to determine the validity of a warrantless search is the same used by a magistrate issuing a warrant. Applying this reasoning, the SJC concluded that under the facts of the case a magistrate could not issue a search warrant.

As a Massachusetts criminal attorney, the SJC’s Cruz decision is an important decision not only for criminal defense lawyers challenging searches in drug cases, but affirms the requirement that there must be a legal basis for an exit order. The decision could be applied in Massachusetts DUI arrests where an odor of alcohol is used to justify an exit order when a motorist is stopped for a technical civil infraction, such as an expired inspection sticker.

Michael DelSignore is a Massachusetts criminal defense lawyer, practicing throughout Massachusetts and maintaining office locations in Attleboro, Stoughton and Westborough. You can reach Attorney DelSignore at 781-686-5924 to discuss your case.

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