MA: Simple MJ possession case did not justify a full search of the person and cell phone

Massachusetts decriminalized small marijuana possession cases. Where the officers only had knowledge of smoking of marijuana and not delivery, a full search of the person and cell phone was unjustified, and the motion to suppress was properly granted. Defendants were rousted by the police after a parent called to complain they wouldn’t stop smoking. Commonwealth v. Keefner, 461 Mass. 507, 961 N.E.2d 1083 (2012):

An intent to distribute “is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had … by inference from all the facts and circumstances ….” Commonwealth v. Rivera, 425 Mass. 633, 648, 682 N.E.2d 636 (1997), quoting Commonwealth v. Ellis, 356 Mass. 574, 578-579, 254 N.E.2d 408 (1970). In this case, while Officer Finnerty had been informed by another about recent marijuana use by the defendant, Officer Finnerty, prior to searching the defendant, did not observe any illegal or suspicious activity on the part of the defendant indicative of an intent to distribute marijuana and there was no information relayed to him concerning any actions by the defendant to support probable cause that the defendant intended to distribute any marijuana. Although Officer Finnerty permissibly could take into account his knowledge of the defendant’s prior criminal record, see Roe v. Attorney Gen., 434 Mass. 418, 442, 750 N.E.2d 897 (2001), without additional facts specifically concerning an intent to distribute, Officer Finnerty’s knowledge of the defendant’s prior criminal record by itself could not justify police intrusion, see Commonwealth v. Kennedy, 426 Mass. 703, 709, 690 N.E.2d 436 (1998). In these circumstances, we conclude that probable cause was not met. See Commonwealth v. Levy, 459 Mass. 1010, 1011, 947 N.E.2d 542 (2011), quoting Commonwealth v. Kennedy, supra at 711 (rejecting per se rule that officer must see object exchanged to have probable cause to arrest for possession of controlled substance with intent to distribute, but noting that such observation is important piece of evidence supporting probable cause and its absence weakens prosecution’s probable cause showing).

Because Officer Finnerty lacked probable cause to search the defendant, his search of the defendant was unlawful and the evidence obtained therefrom, namely, the marijuana, cash, and cellular telephone, must be suppressed. Further, because all text messages recovered from the defendant’s cellular telephone and information derived therefrom was the direct product of the unlawful search, such evidence also must be suppressed under the “fruit of the poisonous tree” doctrine set forth in Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). See Commonwealth v. Ferguson, 410 Mass. 611, 616, 574 N.E.2d 990 (1991). The motion to suppress was properly allowed.