Just last week while Robert Smith was driving his Cadillac in Framingham, Massachusetts he had the misfortune of driving in front of a police car. The officer observed some civil motor vehicle infractions and also smelled a strong odor of fresh marijuana coming from the car. The officer stopped the car and continued to smell the marijuana. Smith acted nervously and supposedly tried to hide and object in the console. Officers searched and found a some partially smoked marijuana cigarettes there. They also found packages of wrappers and some cash. Smith has been charged with Possession With the Intent to Distribute Marijuana, a Class D Substance. The case in pending in the Framingham District Court.
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Cases like this one have become fertile grounds for Motions to Suppress the search. Just a few months ago the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Benjamin Cruz. I blogged on that case the day after it was decided. I remember thinking at that time that this decision would trigger a tremendous amount of litigation, particularly in the district courts where the large majority of marijuana cases are prosecuted. I was right. Almost immediately one of my clients benefited from this decision in the Lowell District Court. We won a motion to suppress and his case was ultimately dismissed.
Sow how will Cruz apply to this case? Well in Cruz, unlike this case, the defendant was a passenger. Similar to this case however, the officers in Cruz approached the passenger side of the car. The driver in Cruz was nervous. Sobriety was not an issue. He was not given field sobriety tests and there was no suggestion that he was operating while impaired. This applies for Smith’s case as well. There is no question that the initial stop was lawful. I imagine that Smith was ordered to exit the car. Thus, a court will have to examine whether the exit order was justified for 1) officer safety purposes or 2) based on reasonable suspicion to believe that Smith was engaged in criminal activity. The Metrowest Daily News article sheds a little light on this: the officer thought Smith was acting nervously and thought he was trying to conceal something in his center console. Massachusetts courts have held that a defendant’s nervous demeanor cannot be the grounding factor on which to base suspicion of criminal activity. See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007). Cruz supported this holding that “[i]t is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police, even though, as a passenger, the consequence of receiving a citation is not personal”. The odor of the marijuana might be an integral factor in a judge’s analysis of this case however. Cruz suggested that a strong odor of marijuana might give cause to believe that more than one ounce of marijuana is in a vehicle. If that is the case here then the officer must distinguish between the odor of burnt marijuana and marijuana that had not been yet been smoked. I would argue that a strong odor of burnt marijuana means nothing in terms of the potential quantity in the car. If the officer testifies that he smelled a strong odor of unburnt marijuana in the car his credibility will likely come into question. There is no indication that a large quantity even existed in the car and smelling it in this form while driving behind a car is incredible.
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