MA: Because of traffic offenses, smell of marijuana from car warranted search despite decriminalization

Smell of marijuana in a car also implicates the dangerous use of the car. Here, the officer observed three traffic violations in short order, and, on stopping the car, he smelled marijuana coming from the car. Commonwealth v. Cruz, 459 Mass. 459 (2011) [posted here] distinguished. Commonwealth v. Daniel, 81 Mass. App. Ct. 306, 962 N.E.2d 213 (2012):

Our analysis begins with the reasoning and holding of Cruz [decriminalization of marijuana and search], but does not end there because the criminality afoot in this case does not depend solely on the amount of marijuana present in the vehicle. Rather, it derives from the presence of a noticeable odor of freshly burnt marijuana inside a vehicle that was being operated in a dangerous manner on a public way by an operator who had marijuana on her person, together with a passenger who made movements in the vicinity of the glove box upon the approach of the officer. Put differently, what rendered the activities of Tayetto and Daniel criminal was not the amount of marijuana possessed, but their consumption of marijuana in a vehicle that was operating on the ways of the Commonwealth in a manner that put the public at considerable risk. See G. L. c. 90, §§ 24(1)(a)(1) (operating under the influence of marijuana), & 24(2)(a) (operating negligently so as to endanger the lives and safety of the public).

Here there was far more to establish criminality than the faint odor of marijuana emanating from an illegally parked vehicle. First was the manner of Tayetto’s operation: she operated the vehicle at night without a driver’s—side headlight; made a left intersection turn in front of DeLeo’s cruiser without signaling; and in response to the cruiser’s blue lights, applied the brakes immediately, stopping in the middle of the travel lane. Second was the likelihood that Daniel’s movements signified his hiding of contraband. As DeLeo approached, Daniel was leaning over, and rocking his shoulders back and forth with his head down. Third was the noticeable odor of freshly burnt marijuana, which suggested an immediate explanation for Tayetto’s erratic operation, followed by an explanation for the odor that DeLeo was free to reject as implausible given his observations, and Tayetto’s quick surrender of two baggies of marijuana from her person. Viewed objectively and reasonably, and without parsing each individual component, these facts provided DeLeo with probable cause to believe that Tayetto and Daniel were engaged in the consumption of marijuana in a moving vehicle, that Tayetto’s capacity to operate was impaired thereby, that Tayetto’s negligent operation endangered the lives and safety of the public, and that additional marijuana and evidence of recent marijuana usage could be found inside the passenger compartment, including the glove box. See Commonwealth v. Garden, 451 Mass. at 50 (“any contraband hidden on the passengers’ person easily could have been transferred to a location in the passenger compartment”). See also Commonwealth v. Correia, 66 Mass. App. Ct. 174, 177 (2006) (odor of burnt marijuana emanating from vehicle gave probable cause to search vehicle’s occupants as well as vehicle for evidence of marijuana use and possession whether or not police had probable cause to arrest any particular occupant).

While it might have been preferable for DeLeo first to have made detailed observations of Tayetto’s eyes or conducted field tests for additional evidence that she was operating under the influence of marijuana, his failure to do so is not fatal to the determination of probable cause. Having observed Tayetto commit three moving violations in the span of only a short distance, readily detected the odor of freshly burnt marijuana emanating from the passenger compartment, and recovered two baggies of marijuana from her person, DeLeo did not require more to establish probable cause. …