MA: Smell of unburnt marijuana at a sobriety checkpoint with no signs of impairment doesn’t justify search

A sobriety checkpoint stop produced the smell of unburnt marijuana, and the vehicle was segregated for a search. Here, the search incident doctrine doesn’t apply when the defendant was never arrested. There were no signs of impairment. Commonwealth v. Craan, 2014 Mass. LEXIS 520 (July 9, 2014):

Where no arrest is underway, the rationales underlying the exception do not apply with equal force. Indeed, “[t]o permit a search incident to arrest where the suspect is not arrested until much later, or is never arrested, would sever this exception completely from its justifications” and effectively “create a wholly new exception for a ‘search incident to probable cause to arrest.’” Commonwealth v. Washington, supra at 482, citing Commonwealth v. Alvarado, 420 Mass. 542, 554, 651 N.E.2d 824 (1995). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690, 470 N.E.2d 385 (1984), and cases cited (“Detentions for frisking, questioning, routine traffic stops, and the like, where the detainee is released after the police business is transacted, are treated as ‘“seizures” of the person,’ subject to Fourth Amendment scrutiny … , but are differentiated from ‘formal,’ or ‘custodial,’ arrests, the custodial aspect of which serves as the theoretical justification for the incident search” [citations omitted]). Given that it lacked the critical element of an arrest, the search of the defendant’s vehicle cannot be sustained as a search incident to arrest.

In any event, the testimony at the motion hearing would not have supported a finding of probable cause to arrest the defendant for operating a motor vehicle while under the influence of marijuana.8 There was no evidence that the defendant bore any of the classic indicia of impairment, nor did the trooper administer a field sobriety test in order to gauge the defendant’s level of impairment, notwithstanding the fact that the vehicle had been stopped at a sobriety checkpoint. Cf. Commonwealth v. Daniel, 464 Mass. 746, 756-757, 985 N.E.2d 843 (2013) (“[T]he Commonwealth elicited no testimony that [the defendant] showed any signs of impairment during [her] encounter [with police]. The officer did not testify that [the defendant’s] eyes were red or glassy, that her speech or movements were unusual, or that her responses to questioning were inappropriate or uncooperative. He did not perform any tests to assess [the defendant’s] physical and mental acuity”[footnote omitted]).