MA: Faint odor of marijuana and sharing a cigar was not RS for exit order from car where possession of <1 oz is a civil offense

Faint odor of marijuana coming from a car and occupants’ sharing a cigar while parked in front of a fire hydrant in a high crime area still was not reasonable suspicion to order them from the car. Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899 (2011):

The Commonwealth argues that the stop’s location, a high crime neighborhood; the defendant’s nervous demeanor; and the occupants’ sharing of a cigar are facts that bolster the suspicion of criminal activity first aroused by the odor of burnt marijuana. We disagree.

The stop’s location, although potentially relevant to an objective assessment of officer safety, cannot justify reasonable suspicion to believe a person is involved in criminal activity. See Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125 (2005), quoting Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001) (traffic stop taking place in high crime area must be “considered with some caution because many honest, law-abiding citizens live and work in high crime areas”). Further, the officers knew that the defendant lived on Sunnyside Street, the very street on which the encounter occurred. Surely the officers could not find it suspicious that the defendant was spending time on his own street. Moreover, the defendant’s nervous demeanor cannot be the grounding factor on which to base suspicion of criminal activity. See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007). It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police, even though, as a passenger, the consequence of receiving a citation is not personal. Here, even though the defendant may have recognized Officer Diaz, a myriad number of innocent reasons other than hiding criminal contraband may more readily explain why a nineteen year old man would appear nervous while being addressed by a police officer. See United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (“Nervousness is a common and entirely natural reaction to police presence …”).

The Commonwealth’s contention that because the occupants were sharing a small cigar, known to the officers to mask the odor of marijuana smoke, they were also sharing a marijuana cigarette is without merit. The Commonwealth’s assertion of such sharing is based on Diaz’s noticing the driver light the cigar as the officers drove down the street and Morgan’s noting the defendant smoking the cigar once the officers had stopped. The judge made no finding whether she credited the inference that the occupants shared the cigar. Further, there was no evidence that the occupants shared marijuana. The driver’s admission to smoking “earlier in the day” does not require, as the Commonwealth argues, the inference that the defendant smoked as well. Even if we assume the occupants shared the cigar, it does not necessarily follow that because the occupants shared one legal item, they shared another illegal substance. We will not infer the defendant’s participation solely from the driver’s admission concerning his own conduct at some point earlier in the day. See Commonwealth v. Wren, 391 Mass. 705, 707 (1984) (suspicion must be based on reasonable inferences; “hunch will not suffice”).

Here, there could be no suspicion of a criminal offense. When the people of this Commonwealth answered “yes” to Question 2 on the 2008 ballot, the offense of possessing one ounce or less of marijuana changed from being a criminal to a civil offense. 19 See G. L. c. 94C, § 32L (“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense …” [emphasis added]). The ballot informed voters that a “yes vote would replace the criminal penalties for possession of one ounce or less of marijuana with a new system of civil penalties.” Information for Voters: 2008 Ballot Questions, Question 2: Law Proposed by Initiative Petition, Possession of Marijuana. The arguments in favor of a “yes vote,” written by the Committee for Sensible Marijuana Policy 20 and presented on the ballot, told voters that the change would remove the threat of various criminal “sanctions” for those who possess one ounce or less of marijuana and instead impose a “$100 fine, similar to a speeding ticket.” Id. It also explained that the police would be “freed up” by the new law to focus on serious crimes and “taxpayers would save $30 million a year in arrest costs.” Id. In contrast, arguments against the change in the law warned voters that “[m]arijuana decriminalization is an endorsement of substance abuse and dangerous criminal activity ….” Id. We assume that before casting their votes, voters read the arguments “for” and “against,” as well as the new law itself. Because we have the benefit of the written explanation in support of the initiative, the people’s intent in answering Question 2 in the affirmative was clear: possession of one ounce or less of marijuana should not be considered a serious infraction worthy of criminal sanction.