Opinion
13-P-1365
11-13-2014
COMMONWEALTH v. JESSICA MCDONALD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 13, 2013, the defendant was charged with possession of more than one ounce of marijuana, in violation of G. L. c. 94C, § 34, and possession with intent to distribute a class D substance, in violation of G. L. c. 90, § 32C(a). The defendant's motion to suppress evidence and her motion to suppress statements were denied by a District Court judge after an evidentiary hearing on April 1, 2013. Subsequently, the defendant filed an application for leave to pursue an interlocutory appeal, pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), which was granted by the Supreme Judicial Court on July 11, 2013. The primary issue on appeal is whether the strong smell of unburnt marijuana provided the police with probable cause to believe that there was a criminal amount of marijuana in the defendant's car to justify the search. Two recent Supreme Judicial Court cases decided on July 9, 2014, Commonwealth v. Overmyer, 469 Mass. 16 (2014) and Commonwealth v. Craan, 469 Mass. 24 (2014) -- which were not available to the motion judge -- are dispositive on this issue. We reverse the order denying the defendant's motions to suppress.
Defendant was also charged with a drug violation near a school or park; failure to signal; and receiving stolen property valued in excess of $250.
Discussion. At the time the motions to suppress were heard in District Court, the issue now on appeal was unanswered. However, Overmyer, supra, and Craan, supra, both conclude that probable cause cannot rest solely on the odor of unburnt marijuana, thus nullifying the Commonwealth's arguments to the contrary. The Commonwealth argues that in Commonwealth v. Cruz, 459 Mass. 459, 472 (2011), the court "made clear that postdecriminalization, the odor of burnt marijuana, standing alone, no longer provided either reasonable suspicion for an exit order or probable cause for a search," but that the strong odor of unburnt marijuana is evidence of drug trafficking, which would establish probable cause to search the vehicle. The Commonwealth relies on Commonwealth v. Fontaine, 84 Mass. App. Ct. 699 (2014), to argue that when there is an overwhelming odor of marijuana in a vehicle, inconsistent with the small quantity of marijuana visible, the police would have articulable facts to support a reasonable suspicion that a criminal amount of marijuana is present. But, because of the additional factors, the court in Fontaine did not need to determine whether the overwhelming odor alone was enough to provide probable cause to search. See id. at 707.
Overmyer addresses the key question left unanswered by Cruz and Fontaine: whether the smell of unburnt marijuana establishes sufficient probable cause to believe that a vehicle is carrying a criminal amount of marijuana, and holds decidedly that it does not. See Overmyer, supra at 17. Therefore, based on strong odor alone, the officers here did not have probable cause to justify the exit order, patfrisk, or search of the defendant's vehicle.
To justify the conclusion that there was probable cause to search the defendant's car, the Commonwealth cites both Cruz and the motion judge's finding that the strength of marijuana odor is correlative to quantity. The Commonwealth asserts that the overwhelming smell of unburnt marijuana fulfilled the "more" requirement set forth in Cruz, and in support, references the judge's reliance on the extensive police experience of Officers Quaglietta and Montecalvo.
As stated in the motion judge's ruling, "What Cruz tells us is that a faint odor of burnt marijuana -- without more -- can no longer provide police officers with . . . probable cause to believe that a criminal amount of contraband is present."
The motion judge references the officer's testimonies as part of his findings, asserting that there is a direct correlation between the strength of the odor of marijuana and the quantity likely to be present.
Overmyer dismisses the notion that one's sense of smell is capable of quantifying the amount of marijuana present in a vehicle. See Overmyer, supra at 20-22. The "characterizations of odors as strong or weak are inherently subjective . . . . [T]he strength of a smell is thus at best a dubious means for reliably detecting the presence of a criminal amount of marijuana." Id. at 21-22. The officers' testimonies in the instant case support the contention that the amount of marijuana cannot be determined solely by smell. The holdings in Craan and Overmyer make it clear that the subjective conclusion that a marijuana odor emanating from the defendant's car is "strong" is not sufficient to establish probable cause for an exit order, patfrisk, or car search.
Officer Quaglietta acknowledged in his testimony that "a smaller amount of high quality marijuana could produce an equivalent odor to a larger amount of low quality marijuana." Officer Montecalvo stated in his testimony that the odor of a large amount of marijuana can be camouflaged using masking agents.
In the alternative, the Commonwealth argues that even if the "more" requirement under Cruz was not met, the police still had probable cause to search the vehicle based on Officer Quaglietta's observations prior to the search of the defendant's car. The Commonwealth points to the officer's testimony that the defendant had departed from a house known for illegal drug activity, located in a "high drug area"; her New Hampshire license plates; and the defendant's "laughable" explanation for the odor of unburnt marijuana as factors establishing probable cause. The Commonwealth proposes that under Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), the appellate court can affirm the trial judge's ruling based on an alternative legal theory as long as it is supported by the record and factual findings. Here, however, from what appears in the record before us, the Commonwealth did not argue the alternative theory now presented on appeal and the motion judge did not have occasion to address it or to make the requisite factual findings; the argument is thus waived. Cf. Commonwealth v. Daniel, 464 Mass. 746, 755 (2013). Contrast Overmyer, 469 Mass. at 19 n.6, 23 (Commonwealth made alternative argument below and matter remanded for factual findings).
In the case before us, the Commonwealth's new argument about the defendant's diversion tactics as a factor demonstrating probable cause is the same new argument brought by the Commonwealth in Craan, which the Supreme Judicial Court refused to address. See Craan, 469 Mass. at 30 n.9. We similarly will not address that issue now.
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Order denying motions to suppress reversed.
By the Court (Green, Graham &
Katzmann, JJ.),
Clerk Entered: November 13, 2014.