Opinion
10-P-1769
11-10-2011
COMMONWEALTH v. FRANCISCO VALLE.
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
The Commonwealth appeals from a Superior Court order, which allowed the defendant's motion to suppress evidence resulting from a search of the defendant's automobile. For the following reasons, we affirm.
Background. On April 23, 2009, at about 11:45 P. M., State police Trooper Matthew Donah was working in downtown Springfield in a marked police cruiser. While stopped at a traffic light, Trooper Donah observed defendant Valle's car traveling toward the intersection at an excessive speed. The car made a turn past the trooper's stopped car at such a high rate of speed that it crossed the marked lines and the trooper thought the car might strike his cruiser or the median. Trooper Donah then followed Valle's car. As he did, Donah observed partially obstructed numbers on the car's rear license plate. He then pulled the car over.
Trooper Donah approached the car and asked the defendant for his license and registration. During the stop, Donah smelled the odor of burnt marijuana coming from the car and the odor of alcohol on the defendant's breath. In response to questions, the defendant admitted to both smoking marijuana and drinking alcohol earlier in the day.
The trooper then ordered Valle from the car, handcuffed him, and placed him in a police cruiser. At this time, the defendant had not been formally arrested. Donah then searched the car for marijuana. He found three burnt cigarettes in the car's ashtray; they carried the aroma of marijuana. The cigarette remains had a total weight of less than one ounce.
Donah continued his search of the car and located a loaded firearm under the front passenger seat of the car. A second trooper, Brian Clapprood, arrived and assisted with the search of the car. Donah then placed Valle under formal arrest and gave him his Miranda warnings.
At the police station, Valle agreed to a breathalyzer test. It determined that he was operating under the influence of alcohol. As a result of the search and subsequent breath test, the Commonwealth obtained grand jury indictments for the offenses of (1) unlawful possession of a firearm, G. L. c. 269, § 10(a); (2) unlawful possession of ammunition without a firearms identification card, in violation of G. L. c. 269, § 10(h); (3) unlawful possession of a loaded firearm, in violation G. L. c. 269, § 10(n); and (4) operating a motor vehicle while under the influence of liquor, in violation of G. L. c. 90, § 24(1)(a) (1).
Valle filed a pretrial motion to suppress evidence, which consisted of (1) the loaded firearm found underneath the passenger seat; and (2) any consequent evidence of operating under the influence of intoxicating liquor (OUI), including the breathalyzer test result at the station house. A Superior Court judge granted the motion in an order dated June 14, 2010. On June 18, 2010, the Commonwealth filed a notice of appeal of the order, and on June 28, 2010, submitted an application to a single justice of the Supreme Judicial Court for leave to appeal. The single justice allowed the application and referred the appeal to this court. See Mass.R.Crim.P. 15(a)(2) and (b)(1), as appearing in 422 Mass. 1501 (1996).
Discussion. The Commonwealth argues (1) that the smell of burnt marijuana furnished probable cause to justify a search of the car under the automobile exception to the warrant requirement, (2) that the search was proper as one incident to a lawful arrest, and (3) that the exit order, handcuffing, and placement in the police cruiser were lawful under either theory of the search.
As discussed infra, the Commonwealth concedes that this issue became moot during the pendency of appeal as a result of the Supreme Judicial Court's decision in Commonwealth v. Cruz, 459 Mass. 459 (2011).
1. The odor of marijuana and the automobile exception. The Commonwealth's claim that the search was valid based on the smell of burnt marijuana emanating from the car, as either evidence of a crime or contraband, was prepared and briefed prior to the decision in Commonwealth v. Cruz, 459 Mass. 459 (2011). As the Commonwealth now appears to acknowledge, the reasoning of Cruz forecloses its first contention.
The Cruz decision was issued following the passage of 'An Act establishing a sensible State marihuana policy,' which reduced the possession of one ounce or less of marijuana from a criminal offense to a civil infraction. This Act is codified at G. L. c. 94C, §§ 32L-32N, and became effective on December 4, 2008. See St. 2008, c. 387.
The automobile exception to the warrant requirement permits a warrantless search of an automobile if police have 'probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable.' Commonwealth v. Cast, 407 Mass. 891, 901 (1990), citing Carroll v. United States, 267 U.S. 132, 149 (1925). In Commonwealth v. Cruz, the Supreme Judicial Court held that the reduction of possession of one ounce or less of marijuana from a criminal offense to a civil infraction prevents the smell of marijuana from qualifying as probable cause to justify a warrantless search under the automobile exception to the warrant requirement. 459 Mass. at 475-476. The court held that the police must instead have probable cause to believe that a criminal amount of contraband is present in the car, not merely some traces or remains of a substance. Id. at 476. Here, the mere odor of burnt marijuana could not, and did not, support the belief that more than one ounce lay in the car.
The court in Commonwealth v. Cruz also rejected the argument that 'contraband' can have a noncriminal character and thereby independently justify a search. 459 Mass. at 474-477. The court instead required that contraband have a criminal character either by quality or quantity, in this case more than one ounce of marijuana, to satisfy the probable cause requirement of the automobile exception. Ibid. In the wake of Commonwealth v. Cruz, it is no longer enough that an officer smells marijuana coming from a vehicle, even when coupled with a defendant's admission of smoking marijuana. To justify the search of an automobile, the officers must have other evidence of criminal activity or of the existence of a criminal amount of contraband.
2. Search incident to a lawful arrest. The Commonwealth contends separately that the search of Valle's car proceeded as incident to a substantially contemporaneous lawful arrest. However, the Commonwealth did not adequately raise the issue of search incident to arrest below and, therefore, has waived the issue on appeal. See Commonwealth v. Robie, 51 Mass. App. Ct. 494, 499 (2001) (because the issue of the exit order was not raised below and the defendant did not alert the motion judge to the argument, the waiver doctrine precludes him from doing so on appeal). See also Commonwealth v. Bettencourt, 447 Mass. 631, 633-634 (2006).
Under Massachusetts standards, an argument must consist of a line of reasoning supported by reference to some authority. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993), and cases cited. In this instance, neither the defendant nor the Commonwealth filed a written memorandum with the motion judge so as to preserve this potentially significant question clearly for the study of that judge and for appellate review. The motion judge provided the attorneys with the interval of the week between the first and second days of the suppression hearing for the preparation of their arguments of law. On the second day of the suppression hearing, the prosecutor referred briefly to an independent source of probable cause for the search. However, she did not clearly characterize it as either a search incident to a lawful arrest or as a search within the automobile exception to the warrant requirement by reason of the defendant's probable operation of a motor vehicle while under the influence of drugs or alcohol. When the judge asked the prosecutor for authority for the alternate basis of search of the car, she replied that Commonwealth v. Garden was supportive. Under Commonwealth v. Garden, 451 Mass. 43, 47-48 (2008), the odor of marijuana alone furnished police with probable cause to search an automobile without a warrant. The judge viewed Garden as inapplicable and apparently as repetitive of prior argument concerning the effect of St. 2008, c. 387. In the absence of a written memorandum, of specific reference to the doctrine of search incident to a lawful arrest, of specific reference to the automobile exception, and of citation to appropriate precedents, the prosecutor did not provide the motion judge with adequate articulation of a separate basis for search of the car now characterized on appeal as a search incident to a lawful arrest. See Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982) ('An issue not fairly raised before the trial judge will not be considered for the first time on appeal'). See also Commonwealth v. Rivera, 425 Mass. 633, 636- 637 (1997).
3. The exit order. The Commonwealth challenges also the motion judge's finding that the exit order was not justified. It argues that the exit order was proper under either theory of the search discussed supra. A lawful exit order requires evidence showing either (1) that the officer had a reasonable belief that his safety or that of others was at stake; (2) that there was reasonable suspicion of criminal activity; or (3) that the exit order served to facilitate an independently valid search of the car. See Commonwealth v. Cruz, 459 Mass. at 466-467, and cases cited. As to the first possible justification, the motion judge explicitly found that no evidence indicated a safety risk during the traffic stop. Our foregoing discussion disposes of the second and third justifications for an exit order.
'Given our conclusion that G. L. c. 94C, §§ 32L-32N, has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.' Commonwealth v. Cruz, 459 Mass. at 472.
--------
4. Breathalyzer result. Finally, we affirm also the exclusion of the station house breathalyzer reading. It resulted from the arrest and transport of the defendant to the station. In turn, the arrest arose from the invalid search of the car. Consequently, the incriminating blood alcohol measurement had its origin also in the roots of the poisonous tree.
Order allowing motion to suppress affirmed.
By the Court (Cypher, Sikora & Hanlon, JJ.),