Kelly Arzate and Charles Berard, two Holyoke men, were charged Wednesday with cocaine trafficking and possession with intent to distribute marijuana after police conducted a “routine traffic stop,” according to local news outlets. A state trooper conducted the stop after midnight, allegedly because he noticed that Arzate’s license plate light was out. When he approached the car, he allegedly detected an odor of marijuana. He called for backup and ordered the pair out of the car. Troopers searched the car and allegedly recovered a bag of suspected cocaine in the center console, eight cell phones, $13,000 cash, and 15 pounds of marijuana, which was in the trunk, in individual baggies. Arzate and Berard were then arrested. Police estimate that the street value of the cocaine would have been $20,000 and that the street value of the marijuana would have been $4,000.
An experienced Massachusetts defense lawyer would immediately pick up on the fact that this exit order may have been illegal, and these two defendants might have strong grounds for a motion to suppress evidence. Because possession of one ounce or less of marijuana is no longer a crime in Massachusetts, the odor of burnt marijuana alone cannot justify an exit order. This is because exit orders must be based on reasonable suspicion of criminal conduct. Still, officers might be able to conduct an exit order of a driver if there is reasonable suspicion that the driver was operating the under the influence of marijuana. Here, there doesn’t seem to be any indication that Arzate was operating under the influence of marijuana. It’s telling that he was apparently not charged with that crime. Further, he was stopped not because he was driving erratically or in any way indicative of impairment. Rather, he was stopped simply because his light had gone out. There is no indication in news reports that Arzate exhibited any signs, such as blood shot eyes, of marijuana impairment. Also, it seems that there was no apparent reason for ordering the passenger, Berard out of the car. In order to do that, police would need reasonable suspicion of criminal activity, independent of the driver, on the part of the passenger. The alleged drugs here were apparently not in plain view, since the troopers allegedly recovered them from the console and the trunk. It does not seem that the defendants engaged in any activity that could be perceived as a safety concern. Finally, it is unclear whether the trooper smelled burnt marijuana or fresh marijuana. If he smelled fresh marijuana, that would further weaken the case for reasonable suspicion of OUI drugs. A skillful Massachusetts drug crimes attorney will likely be able to make a strong argument for suppression in this case. Successful motions to suppress often lead to dismissal of drug charges.