MA: Smell of fresh marijuana, nervousness, and rental car not RS to order occupants out

The fairly strong smell of fresh marijuana isn’t enough to order defendant out of the vehicle, even with nervousness and driving a rental vehicle. Commonwealth v. Locke, 2016 Mass. App. LEXIS 63 (June 7, 2016):

As discussed above, Trooper Driscoll’s observations were not sufficient to support an exit order or a patfrisk of the minivan’s occupants. The standard, a reasonable belief that the officer’s or another’s safety is in jeopardy, is not a high standard, but the Supreme Judicial Court has made it clear that nervousness alone is insufficient to support an exit order. The odor of marijuana, burned or unburned, perceived as strong or faint, is insufficient for a search of a vehicle. Two observations, insufficient alone, do not, in these circumstances, add up to probable cause to search the minivan under the automobile exception. The additional fact that the rental agreement was not in the name of the driver adds nothing to the equation.

Although the initial stop was valid and the officer detected what appeared, subjectively to him, to be a “very strong” odor of unburned marijuana, the exit orders, patfrisks, and search of the minivan were not valid under recent Supreme Judicial Court precedent, discussed supra. Accordingly, we must affirm the orders allowing the motions to suppress.