Criminal Procedure - the Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts - Commonwealth V. Cruz

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Criminal Procedure--The Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts--Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011)

Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures. (1) Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity. (2) In Commonwealth v. Cruz, (3) a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L). (4) The court held that the odor of burnt marijuana alone is no longer sufficient to establish reasonable suspicion of criminal activity and, accordingly, an exit order is impermissible. (5)

On June 24, 2009, in a high-crime area of Boston, two patrolling police officers pulled up beside a vehicle parked in front of a fire hydrant. (6) The defendant, Benjamin Cruz, was seated on the passenger side of the vehicle, and an unidentified person was in the driver's seat. (7) When the officers approached the vehicle, they could smell a "faint odor" of burnt marijuana. (8) The officers testified that both occupants appeared nervous, and the driver admitted he had smoked marijuana "earlier in the day." (9) The officers ordered the occupants out of the vehicle and asked Cruz if he had anything in his possession; Cruz replied he had "a little rock for [him]self in his pocket, which the officers retrieved. (10)

The Commonwealth charged Cruz with multiple counts of possession of a class B controlled substance. (11) He filed a motion to suppress the seized crack cocaine and his admission to the officers. (12) The judge granted the motion on the grounds that an odor of burnt marijuana did not establish probable cause to suspect the presence of more than one ounce, the amount necessary for a criminal offense. (13) The SJC allowed the Commonwealth's petition for interlocutory appeal and affirmed the motion judge's ruling, holding that the odor of burnt marijuana alone does not establish probable cause or reasonable suspicion of criminal activity to justify an exit order to a passenger in a vehicle. (14)

Freedom from unreasonable searches and seizures is a constitutionally protected right. (15) Ordering a passenger from a validly stopped vehicle is a highly intrusive measure and is therefore subject to close judicial scrutiny. (16) There are three possible scenarios that justify an exit order in these circumstances: if there is a reasonable belief that the safety of the police or others is in danger; if there is a reasonable suspicion that the passenger is engaged in criminal activity separate from any offense of the driver; and as a practical measure to facilitate a warrantless search under the automobile exception, which requires probable cause to believe crime evidence or contraband is present. (17)

Prior to the passage of section 32L, the odor of burnt marijuana alone established both reasonable suspicion of criminal activity and probable cause to believe that contraband or evidence of a crime was present. (18) States that have enacted similar laws offer a glimpse of decriminalization's impact on search-and-seizure principles and illustrate the various approaches to warrantless search standards. (19) In Oregon and Maine, although the odor of burnt marijuana alone does not justify reasonable suspicion of criminal activity, a warrantless search is nevertheless justified under the automobile exception. (20) These states generally reason that the odor of burnt marijuana alone establishes probable cause to believe that contraband--criminal or noncriminal--is present. …