COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

No. 2012-P-534

COMMONWEALTH OF MASSACHUSETTS, Appellant

V.

ANTHONY CRAAN, Defendant-Appellee

BRIEF & SUPPLEMENTAL APPENDIX FOR THE COMMONWEALTH ON APPEAL FROM A JUDGMENT OF THE DORCHESTER DIVISION OF THE BOSTON MUNICIPAL COURT

SUFFOLK COUNTY

DANIEL F. CONLEY District Attorney For the Suffolk District

AUGUST 2012

ZACHARY HILLMAN Assistant District Attorney For the Suffolk District BBO# 670258 One Bulfinch Place Boston, MA 02114 (617) 619-4000

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TABLE OF CONTENTS .TABLE OF CONTENTS TABLE OF AUTHORITIES ISSUES PRESENTED STATEMENT STATEMENT
A. B. " i ii

1
, 2

OF THE CASE ......... OF FACTS

findings rulings

3
: ~ 3 6 8

The judge's The judge's

SUMMARY OF THE ARGUMENT

ARGUMENT ........................ .................... 10

I.

IRISH HAD PROBABLE CAUSE TO TROOPER THAT THE DEFENDANT WAS BELIEVE HIS CAR WHILE UNDER THE OPERATING INFLUENCE OF MARIJUANA TROOPER IRISH WAS DUTY-BOUND TO SEARCH THE DEFENDANT'S CAR TO ENSURE THAT, IN THE EVENT THAT THE DEFENDANT WAS ALLOWED TO LEAVE THE CHECKPOINT, HE WOULD NOT SMOKE. ADDITIONAL MARIJUANA WHILE DRIVING HIS CAR TROOPER IRISH HAD PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT'S CAR CONTAINED EVIDENCE OF A FEDERAL CRIME POSSESSION OF MARIJUANA AND THUS, COULD SEARCH THE CAR PURSUANT TO' THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT ~ ;

11

. -II.

14

III.

23 29 30

CONCLUSION ADDENDUM

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ii

TABLE

OF AUTHORITIES Cases

I
\
L.Ed.2d ~ 25 18 16 16

Arizona
351

v. v.

United United v. v. v. v. v. v.

States,
~

183

(2012)

{
j

Carroll

267 U.S. 132 ( 192 5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

States,

Commonwealth
(1998)

Blais, Brooks, Cast, Clermy, Connolly,

428 366 407 421 394

Mass.

294 ', 423 891 11,18,27 325 13 169. '. . . . . . . . . . .. 12

App. Mass.-

~
Mass.

Commonwealth
(1974)

Commonwealth
(1990)

Mass.

'!

Commonwealth
(1995)

Mass.

Commo~wealth
( 1985)

Mass.

'I )
l

Commonweal th
Ct. 1102 (2011)

174, (2006)

Correia, 66 rev. denied, Cruz,'

459

Mass.

447 ....................................
Mass.

14 459
passim App. Mass.

~
j j
J

Commonwealth Commonwealth
Ct. 1101 Ct. Ct. 1101 Ct.

v. v.

306, rev. (2012)

Daniel, 81 granted, Davis,

41

Mass.

~ 20

462
Mass.

; j

)1

Commonwealth
793

v.
(1996)

App.

'
Mass,.

10

Commonwealth

88, (2005) 923

v. Davis, 63 rev. denied, Fortune, Garden, Gaynor,

57

444

App. Mass.

1 17,18

)
17,18

Commonwealth Commonwealth
(2008)

v. v. v.

Mass.

App.

(2003) 451 443.

Mass.

/j."<~

~j
43 pa s s im
Mass.

Commonwealth
(2005)

245 22

-~ "':;

"j

~ .,

( 'I

iii
,

Commonwealth
(1997)

v.

Gonzalez, Isaiah Johnson, Keefner, Mercado, Motta, Murdough, Nelson, O'Connor, Rivet, Roviaro, Santaliz, Storey, Tynes,
~

426

Mass.

313 26
Mass.

Commonwealth
334 ( 2007)

v~

l.,
461 4 61 422 424 ': 428 ~. 460
o

448

'
v. Mass.

, 3 44 13,19,24,28

" Commonwealth
(2011)

Commonweal th
(2011)

v.

Mass .

507 11 367 10 117 ' 23

Commonwealth .":,.~~

v. v. v. v. v. v.

Mass.

(1996)

Commonwealth
( 1997)

Mass.

Commonwealth
( 1999)

Mass.

760 . . . . . . . . . . . . . . . . . . . . 21 564 23 630 13

App.

Commonwealth
( 2011)

Mass.

Commonwealth
(1995)

420 Mass.
30 Mass.

Commonwealth
Ct. Ct. 973 956

(1991)

:
32 Mass. App.

13 13

Commonwealth Commonwealth
(1992)

v. v.

(1992) 413 .........................................

Mass.

238 12 312 11 369 ' . . .. 12

Mass.

Commonwealth
(1979)

v. v. v.

378 400

Mass.

Commonwealth
( 1987)

Mass.

Commonwealth
App. Mass.

ct.
1101

645, (2010)

Villatoro, rev.

76

denied,
79 Mass.

458 27
App. Mass.

Commonwea 1 th
Ct. 1110 ~...

v.

Virgilio,

rev. denied, 460 570, .................................... (2011) v. Washington,

449 (2007)

16
Mass . 11

cl

Commonwealth
0

476

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r
I'

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iv
...

Commonwealth
(1995)

v. v. United Jimeno,

Welch,

420

Mass.

646 . 10

....
"

~,~

'.

'"

0";';'

Commonwealth
736

Yesilciman, States,
500

(1 9 9 0)

406 Mass. -. . . . . . . . . . . . . . . . .. . . . . . . . . . . . 10 358 248 F.2d U.S. (1991) 468 (9th 307 . 11 . 22

Draper Florida Gonzalez

v.
( 1959)

t,
:$

v. v.

u.s.
722

Peoria,
1983),

Cir.

grounds, Vina, 199

1999)

rev'd Hodger~Durgin
of.3d 545 Mass. 1037 U.S. 745 1

on v.
(9th

other De La
Cir.

l
'II

...r.""

24

Gonzalez Irwinv. Uni ted United United United

897 (1st (5th F.2d

v.

Raich,
392

(2005) (1984) 16, 53

26 17 27 26

Ware, Sta tes

Cir. Cir. 1298

v. v. v. v .. v.

FrankLin, Harold,

630 588 ~

2011) 1979) (10th Cir.

F. 3d ~ F.2d

States States States

1136

Salinas-Calderon,
1984) 272

728
25

Sapp,
2003)

F.Supp.2d 27 c176 . . 25, 27

(N.D.Ca.

United

States
F . 3 d 12 94

Vasquez-Alvarez,

( lOt h Ci

r. 19 9 9) ........:.......
Statutes

21 21

U.S.C. U.S.C.

~ 844(a) ~ 878 ~ 1252c ~ 10 ~ 10(h) ~ 98 ~ 32C(a) ~ 32L ~ 34 (1) ' ~ -

26 24 24 24 2

8 U. S. C. G.L. G.L. G. L. G.L. G.L. G.L.

cO. 22C, c.
c. c. 269, 41 , 94C, 94C, 94C,

' . . . . . . . . . . . . . . . 24 2 passim 2

c.
c.

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Rules

Mass.

R. Crim.

P.15(a)(2)

Constitutional

Provisions

art.

Massachusetts 14 of the Declaration of Rights

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ISSUES

PRESENTED

I.

Whether

state

trooper

had

probable

cause

to

r
)
I
J

believe under smelled

that the defendant the and influence saw car, car, of

was operating marijuana where

his car while the

"

trooper the was

fresh, and

unburned wh~re the to

marijuana defendant, having

inside who

defendant's driving weed."

i

the

admitted

"just

smoked

II.

Whether

the

trooper's marij uana

smell

and

observations defendant's to having

of car,

fresh, coupled smoked

unburned

inE)ide the admission

with the defendant's weed," gave the

"just to

1 trooper probable cause

search the defendant's to ensure not that, consume if

cai for more marijuana allowed to leave, the while

in order defendant operating

would

any more

marijuana

his car. III. Whether fresh, the the trooper's marijuana smell and observations of

unburned

in the defendant's cause

\

car gave that crime cause the of to

trooper was

probable
\

to the

believe federal probable

defendant possessing

committing and

marijuana,

thus,

search the defendant's

car for more marijuana.

.,
/..'1

.I.

STATEMENT OF THE CASE This the Boston is the Commonwealth's Court appeal of an order of

Municipal 6,

suppressing

evidence. issued Division, illegal out. of the

On August Boston the of Municipal

2010, Court,

a complaint Dorchester Craan, violation of.a in class violation of a class with

charging possession c. with c. 269,

I

defendant, ammunition,

Anthony in

of

G.L.

~ 10 (h) (1); intent to

possession distribute, and

D substance of G.L.

the

94C, in

~ 3?C (a); violation On Honorable mot.ion to May 12,

possession

B substance,

of. G.L. c. February Rosalind suppress 2011,

94C, ~ 34 (C.A. 1).1 2011, Miller evidence after denied a the hearing, the

25,

defendant's C.A. 4). On for

(Add. 44-50; filed a

the

defendant

motion

reconsideration, 19 , 2011

which Judge

Miller

allowed

on October day, 7). the On for

(C.A. 5, filed 2012,

12 ; Tr . 11/2 / 11: 10) . a the notice of appeal

That (C.A.

Commonweal th January 13,

Commonwealth filed

a motion

Citations to the Commonwealth's appendix will be cited, as (C.A. [page]), and citations to the Commonwealth's addendum will be cited as (Add. [page]). Citations to the transcripts will be cited as (Tr. [date]: [page]).

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written denied

findings on January to filed

and

rulings,

which

Judge

Miller

19, 2012 Mass. a

(C.A. 7, 23-24). R. Crim. for single

Pursuant Commonwealth Judge Miller's

P.

15

(a)

(2),

the appeal of the

petition with a

leave

to

ruling

justiGe

Supreme The

Judicial

Court on November Botsford, on be

25, 2012 . J. , 12, in

(C.A. 27). the and Court

single

justice, petition the

allowed 2012, this

Commonwealth's directed
(C.A. 27).

March docketed

that

appeal

STATEMENT OF FACTS
A. The judge's

indings2

On Scott

June

11,

2010,

Massachusetts as a "screening on Gallivan

State

Trooper at a in

Irish was working checkpoint

officer" Boulevard

sobriety
2.

The judge made oral findings of fact and ruli~gs of law (Add. 44-50; Tr. 2/25/11:40-46). The Commonwealth has inserted citations to those portions of the suppression record that support the judge's findings. Where necessary, it has also supplemented the judge's findings of fact with the officers' uncontroverted. testimony in order to provide a full narrative. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (upon review, an appellate ,court may add facts if evidence was uncontroverted apd undisputed and if motion judge explicitly or implicitly credited wi tnesses' testimony). Any fact that the judge did not explicitly find is denoted solely by citation to the transcript of the motion to suppress.

Dorchester role,

(Add.

45;

Tr.

2/25/11:11"":'12, every were (Add. car

41). that

In passed

that to

Trooper if

Irish the of

stopped

determine the
41) .

operators alcohol

operating 45; Tr.

while

under

influence

2/25/11:12, driven by the 12-13, car

As

At approximately came to Irish 45; the

1:3D a.m., checkpoint directed Tr. the

a car (Tr.

defendant 41) . pullover approached

\

2/25/11:

Trooper

defendant's 41). Irish

to
he

(Add. the

2/25/11:13-14, car, Trooper

defendant's of fresh,

smelled coming 45; the and

the from Tr.

strong the

odor

unburned

marijuana (Add. smell

1.

passenger 25, 41). with

compartment This based 'was a

2/2-5/11: 13, was

that

,
t,

trooper

familiar (Add.

on his

training

,experience this odor,

45-46; Irish the

Tr. had

2/25/11:10-11). the defendant,

Due to 'who was area

Trooper pull into

driving,

designated 41). area, scent of

screening

(Add. 45; Tr. Once in still coming smelled from

2/25/11:13-14, the the inside screening strong the still car, the

Trooper unburned car, car,

Irish,

who

marij uana the could if Tr.

defendant's In the

informed that he

defendant, smell he

who was

marijuana any

in the more in

and asked car

the

defendant 45-46;

had

(Add.

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2/25/11:14-15, the Tr. was fresh, 42) . was passenger 2/25/11:16, not burned unburned The any

41). had 27,

The "just 42).

defendant smoked Trooper that (Add. asked car, he

stated weed." Irish smelled, Tr.

that

he

and 46; it

(Add. said but that

marijuana marijuana then in

I

instead

46; the to

2/25/11:16-17, if there

trooper

defendant which weed," the

marijuana "yes, 16-17, the

the

defendant (Add. 46;

responded, Tr. over, 2/25/11: opened

have

some The

27-29). glove

defendant

then and

reached a

compartment, bag 46; that Tr. was

exposed a quarter 27-29,

T
sandwich-sized full
42) .

plastic (Add.

about

of

marijuana

2/25/11:16-17,

After get out of

asking the

the car, Irish 27,

defendant pat-frisking searched 42).

and

the them,

passenger and

to

finding 46;

nothing, Tr.

Trooper

the In

car the which

(Add.

2/25/11:17, he of

29-30, several

passenger contained 31-32, additional ecstasy 42-43). door, he 43-

compartment, small 43), amounts and

found

baggies

marijuana center he

(Tr. console,

2/25/11:18, he to found

if)- the and

marij uana pills

what 46-47;

recogni Tr. of

zed

be .three 31-32, side

(Add.

2/25/11:18, the driver's

From. the

st.orage

shelf

found grind In the

grinder,

which (Add.

he 46; four

knew was commonly used. to Tr. 2/25/11:18, of loose 31, 42-43).

marijuana trunk,

he found

rounds 32-33,

ammunition

(Add. 47; Tr. '2/25/11:18-19,

B.

43).

The judge'

s ru~ings

The search of the vehicle, which resulted in the seizure of evidence, was conducted without a warrant. Therefore, the Commonwealth bears the burden of establishing that the search and seizure was validly conducted pursuant to an exception to the warrant requirement, see Commonweal th v. Franklin, 376 Mass. 885, 898, 1978. The smell of marijuana alone can supply probable callse to believe that marij uana is nearby. Commonwealth v. Garden, 451 Mass. 43, at 48 2008. In Garden, the court found the smell of burnt marijuana coming from a vehicle's occupant's clothes supplied probable cau.se for a search of the vehicle. However, the court did not distinguish between burnt and unburnt marij uana in its conclusion that the smell of marijuana alone can provide probable cause for a search of the vehicle. The enactment of General Laws, 94C, section 32 I through N does not change the probable cause analysis, that is, that the smell of marijuana alone can supply probable cause to believe that marijuana is nearby. Also citing Commonwealth [v.l DeGray, 77 Mass. Appeals Court 122, 2010, and Commonweal th v. Villatoro, 76 Mass. Appeals Court, also the year 2010. The search of the vehicle was justified by exigent circumstances supported by probable cause. A search of a vehicle based upon

-- -.~

exigency commonly involves a claim that a crime is or has been' committed and that evidence of the crime can be located in the vehicle. ,See Commonwealth v. Motta, 424 Mass. 117, 120,1997. In this case, the basis for the search was the odor of unburnt marij uana. There was no basis to believe that any particular quantity of marl]Uana was concealed anywhere in the vehicle and there was no basis to believe that any quantity exceeding an ounce necessary to provide a basis for an arrest was present. However, the rule on probable cause to search under the automobile exception is broader than requiring that a crime has been or is being committed. The automobile exception permits warrantless searches where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being moved contains contraband or evidence of a crime, Commonwealth v. ~ostock, 450 Mass. 616, 624,
2008; also Commonwealth v. Alvarado, 420

Mass. 542, 554, at 1995. "C6ntraband" quote/unquote, does not mean only iterns that are intrinsically criminal, but also includes articles which it is unlawful to have in one's possession. Commonwealth v. Wojcik, 358 Mass. 623, 628 1971. See also Sullivan [v.l the District Court of New Hampshire, 384 Mass. 736, 742, 1981. The enactment of General Laws 94C, Section 32, did not legali ze marij uana. It simply decriminalized it. The statute authorized the issuances of a civil fine for possession and requires forfeituie of the marijuana. The police are, authorized to seize and forfeit less than an ounce of marijuana from anyone ln possession of that substance, despite the decriminalization of such possession.

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In this case the offense in question, which the officer. had reason to be.lieve at. first, that is, possession of m,arl] uana, does implicate contraband which lS, subject to seizure and forfeiture. The search 0as permitted under the autom6bile exception. For those reasons, the,mot~on isdefiied. (Add. 47-50; Tr. 2r25/ii:43-46;.
,

The'defendant initial Court's ruling decision

.

moved the in light of

judge

to

reconsider

her

th~Supreme
v. Cruz,

Judicial 459 Mass. issue, ,the

i

in, Commonwealth hearing defendant's

4.59 ' (2011)

After the

argumerit on ,the

judge
(

allowed

motion .to suppress

based

on
I.

Cruz {C.A. 12). SUMMARY OF THE ARGUMENT Trooper. Irish had probable his The to the Icauseto car believe under that the

the 'defendant inl~ence driving his of

was opeTating' marijuana. admitted That

while

defendant,
,.

who' was that he had

car,

trooper

"jtistsmoked trooper's

weed.u smell

statement ; of to

coupled

with, the in the

and observations probable to cause

fresh

marijuana that

the

car,

provided ability

believe vehicle the

defendant's had

operate As a the

a'motor result, defendant

safely had him

been,dimini cause 'to that

shed. to arrest arrest

trooper

probable incident

and search'
.
;

(pp~II-14).

.1

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II. the

Even

if h~ did not have probable for operating under

cause the

to arrest influence,

defendant

Trooper

Irish had probable marijuana. His

cause to search the car for smell and

<

additional

observations

of

fresh marijuana cause to believe

in the car provided that more marij uana

him with was

probable car.

in the

In the event that the defendant on his way, car that and to the trooper there who was was

was allowed

to proceed the

duty bound no

to search

ensure

that

additional to smoking an

marijuana marijuana greater

the defendant, driving, could

admitted to

ingest

become

even

risk to the travelling III. Trooper evidence car. of

public

(pp. 14-23). cause in to believe the that

Irish had probable a federal crime of

was less

defendant's an ounce of it the he

Although

possession

than

marijuana remains authority smelled car, a

had been decriminalized federal to crime.

in Massachusetts, Irish crimes; has once

Trooper federal

investigate

and saw fresh mariju~na he could permissibly

inside the defendant's search the car to

investigate

that crime further

(pp. 23-29).

10

ARGUMENT

In

reviewing

motion

to

suppress,

this

Court

will accept

th~ motion error.

judge's' findings
Commonweal th v,,

of fact unless 420 Mass.

406

there is clear
646, 736, 651 743 (1995); (1990).

Welch,

Commonwealthv.

Yesilciman,

Mass. an the to
422 Davis,

This

Court 'will, however, of the correctness

"make of

independent judge's the Mass. 41

determination of

application as
369

constitutional
Commonwealth accord v.

principles
Mercado, v.

facts
367,

found."
(1996);

Commonweal th

Mass.

App.

Ct.

793,

795

(1996)

Here, search

the

Commonwealth car was

argued

that Trooper for.

Irish's

of the

permissible

three

separate

reasons:

1) that that t~e defendant under the influence of

was operating marijuana (Tr.

his car while

5/19/11:2S);

2) that the Fe was additional the offic~r 25); and 3) was duty bound

marijuana to' seize was

in the car that (Tr. 5/19/11: committing (C.A.

13-

that of

the

defendant

the 14-

federal
22) .

offense

possession

6f marijuana

Because these

the trooper's the

search

was proper allowance

on each of the

of

bases, motion

judge's

defendant's

to suppress must be reversed.

-_.

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11

I.

TROOPER IRISH THE DEFENDANT THE INFLUENCE

HAD PROBABLE CAUSE WAS OPERATING HIS OF MARIJUANA.

TO BELIEVE THAT CAR WHILE UNDER

" [P] robable and are that circumstances enough the to

cause within warrant

exists the a

where knowledge person has of in

the the

facts police

prudent

believing or was

individual an 476, Mass. probable "In name not offense." 481 312, (2007) 321 cause dealing imRlies,

committed

committing 449 Mass. 378

Commonwea 1 th

v.

Wash

i ngt on,
v.

(quoting (1979)). exists with is

Commonwealth

Storey,

The determination firmly rooted in

of

whether

common sense. as the veryare

probable with are the

cause, probabilities. factual on and which

we deal they of men,

These practical

technical;

considerations and prudent v. v.

everyday not 407 legal

life

reasonable act."

technicians, 895 307, (1990) 313

Commonwealth Draper

Castr

Mass. 358

891, U.S.

(quoting (1.959) )'. rationally

United

,States,

"'The 'more

officers than

must

have of

entertained criminal but a crime, ' "

a
definite of the

suspicion and

involvement, not let a prima alone

something facie case

substantial, of

commi-ssion a reasonable 507,

a
v.

case

beyond 461

doubt. 517

Commonwealth

Keefner,

Mass.

(2011)

.12

(quoting (1992) ) . To influence . believe only

Commonwealth

v.

Santaliz,413

Mass.

238,.240

make

an

arrest

for an officer is

operat~ng is not

under require& rather, that

the to \he ~~the the

of marijuan~~ that the

defendant cause of to his

intoxicated; to believe

needs

probable consumption abiLity ~that a

defendant's def'Emdant' s safely,' l'eft him

[marijuana] operate
a

.diminished motor of

vehicle

i.e., with

consumption '.' capacity

intoxicants to op.erate. 369,' 374-, 394 Mass:

'diminished v.'

safely.'" ']5 (1987)

Commonwealth (quoting

Tynes,

400~Mass. Connolly, . and that

.Commonwealth (emphasis Irish

v.;

L69, 173 (1985))

Here ,.

in original) smelled" admitted Tr.

Trooper, and the

observed

marijuana,

defendant

he had just

smoked some ~weed" (Add.>45-46; These tr6oper's marijuana, to. believe while
".\

2/2S/1L1~-17,.

25,
the with cause.

observations, trainj,ng ~and

coupleq

with

extensive prov~ded that the the

experience probable his

Trooper'

Irish>

with

defendant influence

was' operating ofrnarijuana/.3

car See

under

That the defendant was ui timately operating while ,under the influence
,
v

not charged with does not impact

~-~--------_._---------_._.~._--~---_. - - --_ .._ ... _--- .. _--~_ .... __ ...--"_.--

--

__ ._---~._

.. ---_

_-----_.'-+--_ __.__._.... __ ... _-.-----_ ... _ .. _--_. __ .-

--~--------~~ -----------~0 ._.~." "

13

Commonwealth (officer influence violation, red-glassy App. Ct.

v.

O'Connor, defendant

420

Mass.

630,

631

(1995)

arrested where admitted eyes);

956, 959

for

operating
a

under

the

defendant to drinking Commonwealth

(1992)

committed that v.

traffic and had 32 Mass. of OUI

evening,

Roviaro,

(delay where based

in. issuance police on his had

charges cause

was to

not

reasonable defendant

probable to five App.

charge

admission

officer or Ct. six

973,

directly beers);
975

after accident Commonwealth v.

that he had drank Rivet, alcohol 30 Mass.

(1991)

(smell of to consuming

'on defendant's and "glassy w~s

breath, eyes",

admission equaled

alcohol,

probable

cause to believe

defendant

intoxicated) . Once the Trooper for Irish had probable under cause the to arrest or for or
v.

defendant
he

operating validly

influence the car-

marijuana, evidence of

could that

search more See

crime,

i. e. ,

marijuana Commonweal th

marijuana-related Johnson,
461

paraphernalia.
50 (2011)

Mass .. 44,

(after

arresting

,defendant for OUI,' officer was permitted

to search the

the
325,

analysis.
330 (1995).

See

Commonwealth

v.Clermy,

421

Mass.

14

r,
.-: ,
,

car for evidence the contrary

II.

of that crime).

The judge's

order

to

was erroneous.
TO SEARCH IN THE EVENT ~.TO LEAVE SMOKE THE THAT THE

TROOPER IRISH WAS DUTY-BOUND DEFENDANT'S CAR TO ENSURE THAT, THE DEFENDANT WAS. ALLOWED CHECKPOINT, MARIJUANA HE WHILE WOULD DRIVING NOT HIS CAR.

ADDITIONAL

Even to believe

if Trooper that the

Irish did not have probable defendant was operating

cause car

his

und~r

the influence search

of marij~ana, the

he nonethel~ss

could

permissibly When- he had

car, for, addi tiona1 fresh, unburned that

See

marijuana.

smelled

and saw cause

marijuana,- he there was v. v. 447 two the G.L. unseen had

probable

to

believe

additional
Garden, Correia,
f

marijuana Mass.

in the car. 43, 50 Ct. This as

Commonweal th Commonweal th denied,

451

(2008) ; 174,

66 Mass. 1102

App.

177, rev.
..r'

I
.i

Mass.

(2006) . First, from

fact

lS

important Irish

for

I
\

reasons. marijuana

even

Trooper box as

seized by

the

glove

required been have more,

fI

c. 94C, marijuana

32L, that

there the

could

have could

defendant away~ in

accessed

he been allowed Judicial contraband in any Court

to drive noted

Second,

as the Supreme remains

Cruz,

marijuana

despite

~ 32L:

\\ [P]ossession

of marijuana,
lS

amount,

remains

illegal;

decriminalization

t
I

15

not

synonymous remains

with

legalization to possess, any Cruz,

Because amount of

marij uana marijuana at 473.

unlawful

is considered

contraband."

459 Mass.

Trooper smoked

Irish

also

knew while

that

the

defendant or just

had

marijuana indeed,

either

driving admitted

before

driving; trooper Irish

the defendant

as much to the Trooper if he the

(Add. 45-46; Tr. thus have

2/25/11:16,

27, 42).

could the

reasonably to drive

believed away,

that, and

allowed defendant defendant

defendant

if

had any additional

marijuana

in the car, the

would smoke that marijuana on these

while driving. Irish was

Based

circ;umstances, Trooper

faced with a choice. knew had smoked

He could let a defendant, and then gotten

who he the

marij uana

behind

wheel, more

leave, which would marijuana and

allow the defendant more

to smoke while the that

become

intoxicated could

driving. defendant's marij uana

Alternatively,

the trooper

search

car for additional remains illegal to

marijuana, possess, ability

knowing

that

ingestion and

of marijuana

impairs

a person's

to drive,

that the defendant

had admitted

to ingesting

marijuana

----~~

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~~

--~ """'"" .. _ _~ .. ~~~~~~~=~IlIIIII!IIIIIII"""""'-----. , ..c-..... _ .... _,_

.. ,-

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.-

.'...

c ....._..... _...

' . _ .......

~...~

.. _ . _ ....._

...................

_.....

. ...

...

.. c. "

.....

before

driving.

Trooper

Irish

reasonably

chose

the

latter option. Operating influence legislature increased declared of a an motor vehicle is an while under the The

intoxicant

epidemic.

has recognized the penalties an

as much: for

when

they recently drivers, necessary safety. and they for St. the

drunk law

the

increase

emergency

the immediate 2005, c. 122.

preservation Likewise, Court

of the public both this

Court the v.

,supreme risk

Judicial

have

recogni zed Commonwealth rev.

"lethal Virgilio,

of impaired App. Ct.

driving."

79 Mass. 1110

570, 580-81,

denied,

460 Mass. in

(2011)

(Sikora, J., dissenting).

v.

For example, 425-26

Commonwealth

Brooks,

366 Mass.

423,

(1974),

the Supreme Judicial

Court said:

In this century the automobile has become a major implement of life and death Periodic empirical studies have confirmed the intuitively obvious: person who drive while under the influence are likely to kill or injure themselves or others . See also Commonwealth
v.

Blais,

428

Mass.

294,

298 is a

(1998) ("A drunk driver. let loose on the. highways deadly with menace Irwin v. to anyone sharing the

highways (1984)

him");

Ware,

392 Mass.

745,

756

17

("the

threat

[of serious

intoxicated physicai to protect App. Ct.

driving] injury";

is

immediate;

it

threatens have
v.

those

endangered

"no

chance

themselves").; 88,.91, under public) 923, the ; 924

Commonweal th denied,
444 poses
v.

Davis,
1101

63 Mass. (2005) danger Mass.

rev.

Mass. an

(driving to App. to the Ct.

influence

extreme 57 have

Commonwealth
(2003)

Fortune,
officers criminal implicates does").

("Police reports of

a duty

investigate

citizen if as the

activity, the safety

particularly of the public,

conduct driving

drunk

Against enforcement roadways the the are

this officer, safe duty

backdrop, has for is car the such in a

Trooper
(

Irish, ensure public.

as that In not

law the

duty

to

traveling that, this to

fact,

trooper's defendant's

had case,

he

searched had the

and after and could 754-62

defendant, marijuana, accident, held be liable. held to

who left, the

admitted smoked

driving marijuana,

smoking caused have (town an been can in .

more and

trooper See Irwin,

the

city at

392 Mass.

liable

for

police

officer's/ motorist

negligence from roadways)

failing

remove intoxicated

18

Trooper substance Mass. at that 901

Irish is

also illegal

has

duty

to See

seize Cast,

to possess. search of

407

(warrantless automobile to believe

a motor when

vehicle have on a

pursuant "'probable public and

to the cause

exception that

police vehicl~

a motor

way contains

contraband

or evidence obtaining v.

of a crime, a warrant Sta tes,

exigent

.circumstances (quoting

make Carroll

impracticab~e.'") 267 U.S. 132, 149

Uni ted

(1925)); see also

G.L. c. 94C, ~ 32L of marijuana so where, impact Fortune, as the 57

(person who' possesses must here, ~afety

J.

less than one ounce This is particula~ly substance public. could See

forfeit drug). ingestion of the

o.f that tr~velling

'.

'i .jt ,.

Mass. App. Ct. at 924 crime under that the implicates influence

(officer has duty to investigate public see safety, also as operating 63 Mass. under

does);

Davis,

App. Ct. at 91 influence poses

(anonymous created

call of person

driving

emergency

situation

justifying to do?"). if way and the with given Trooper

stop; "Simply put, what else was the officer Given defendant marijuana marijuana's the was potential allowed to for serious on

harm his

continue to

immediately continued

available status as

him,

contraband,

._._--_.,._--

._-------_

..-

------,._--_ ..~---.-'-

------_._._-"-'

19

Irish that,

reasonably if the

decided

to

search

the to or

car

to

ensure way,

defendant gravely

was allowed injure inside a himself. the car, eye

go on his

he would not Once he not

someone else. trooper was

was validly to ecstasy, seize turn

the to -the

required

blind

additional he

marijuana, could
See,

or ammunition that those items,

he observed; are illegal.

properly
e.g.,

~s they at that to 51

Johnson,

461 Mass. a revolver

(office.r was the

could

permissibly during a

seize search . in the

discovered automobile

conducted

pursuant

exception)

Nothing the voted contrary. to

purpose

or language people an of

of 5 32L is

to

When the less

the

Commonwealth of marijuana ensure not

make

than penal ties, less

ounce they one did

punishable that

by civil of

so to

possession

than

ounce

would aid,

become a ba.:;;is to housing, motor' parent. 471-72. intended the roads

deny student

financial the right foster

Cruz,

public a

unemployment benefits, or
G.L.

to or

operate adoptive

vehicle,
See

serving c.

as

94C, 5 32L; indicates

459 Mass. the

at

Nothing, that of

however,

that operate

voters on

drivers the'

be allowed

to

a car

Commonwealth after

having

ingested

20

marijuana; herein laws motor shall

indeed,

~ 32L~states" to repeal

"[n]othing
Or modify

contained existing

be construed or policies or other

concerning actions taken

the

operation under v.

of
the

vehicles

while

influence 81 Mass. Mass.

of marihua~a." App. Ct. (2012)

See,Commonwealth n~,13, rev.

Daniel, 462

306, ,314

granted, the

1101

(" en]othing of of

:in

referendum amounts of
\, "

decriminalizing marijuana the reflects

possession the of will

small

the .. publicto on the roads in

perm.it 'of the

consumption

marijuana

Commonwealth by vehicles. it makes

drivers

and,; passet:lgers is" true") that, fresh, .

moving :J;'eason,

The contrary reasonabl~ smells a the car, car and that for

For this when, as

sense sees officer' additional

here,

an

officer inside search the

unburned be

marijuana to tpat the

should

permitted to ensure under.

marijuana to, is

driver

doe~

not

c?ntinue This to

operate

influence the'

of marijuana. admits getting is

particularly having wheel.

so when smoked See surely id . it who be

defendant before

already the

marijuana . (" if

behind to

reasonableness a police

mean anything,

..

allows is

officer.

t'o. asc'ertainthat operating

a driver . 'will not

smoking marijuana

while

c.;:f=::::-::== ..= .. =.==.= ..... =.======----:-:======:=::::.:-.-.:-

= ...

... = ....

=..'... -'-----. ,----.-. _.--...-..--...-.~~-21

... - ..-...-.... -..-.-.~~_=__,_ __=__=_-_ _=__=_-_

_c:c_=__-_-.~ - .. -....-.. ~ ...-.. -.---..

----.-=-.-.-=.-.-.."

able
of

to resume contraband

operation still
see also

of the vehicle available

Commonweal th v.

with for

a supply further
428

consumption"); Mass. 760, 764

Murdough,

(1999)

("It is not a crime although vehicle of a

to be under it is a the in a

the influence crime' to influence. narcotic the

of narcotics, a motor

certainly while

operate And

under when

operation

vehicle

stupor presents thus,

a danger to the driver "eminently

and to for under search

public"; -who of

it was

reasonable" was to

officer influence

suspec"):ed that drugs to order

'defendant defendant out

for evidence)
Commonweal th Cruz, v. Cruz,

is not to the contrary. Court

5

In the

the Supreme of G.L. one

Judicial c. 94C,

held which the

that,

after

passage less

32L,

decriminalized smell of burnt cause

than

ounce

of marijuana,

marijuana to believe at 469.

alone no longer

gives rise to probable

that a crime is being c9mmitted.

459 Mass. out of

In order to permissibly

order a person

a car based on the smell of burnt marijuana, held, facts an officer that must be able to point a belief

the Court

to articulable the defendant or that the

support

possessed

more than one ounce of marijuana

22

defendant
&

was committing The Cruz

some other crime. did not alter

Id.

at

469

n.14.

opinion

the Court's an officer's e~anating that the not hold that who

holding

in Garden, of the

451 Mass. -at 47,that odor of unburned

detection

marijuana

from a car provides car that contains an more

probable

cause to believe also an did

marij uana. . Cruz confronted '. with unburned

officer,

automobile and a driver car to

smells

of fresh,

marijuana,

produces, marij uana, that, should

cannot' search allowed

that

ensure way,

the driver. be

to go on her

he does not have additional In choice

J

marijuana. Irish was presented was with a

the

end,

Trooper

and the decision reasonableness and seizure 245, 248,

that is

he made

reasonable. for any v. v.

Because search Gaynor, Jimeno, evidence

the

touchstone see

inquiry, 256 250

CommonweaLth (citing Florida

443 Mass. 500 U.S. recovered rule

(2005)

(1991)) ~ suppression

of the "The search;

from the car was unwarranted: is a remedy to an illegal

exclusionary its purpose judicial unlawful exclusion

is to deter police 'misconduct integrity by dissociating Rigid adherence

and preserve courts from of

conduct is unnecessary

to a rule wh~re

in' situations

these

.. _-~:-::--.

--::-"".-"-:''::

---

"'~--_.-''"_

... --'---"'''---------~--

.--_._-~'-'--.'---'-----~---.,._-_._-_

..

_--

.--_.__ ._----------_.

__ ._ ----~
.. ...

23

purposes
460 III. Mas s.

are
564,

not

furthered.
(2011).

/I

Commonwealth

v.

Nelson,

570 - 71

TROOPER IRISHHAD PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT'S CAR CONTAINED EVIDENCE OF A FEDERAL CRIME POSSESSION OF MARIJUANA AND THUS, COULD SEARCH THE CAR PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT. The trooper's search was to also permissible under

the

automobile art. at

exception
14

the

warrant

requirement.

Although Rights Fourth

of

the

Massachusetts

Declaration' of than the

times

provides to the in

greater. protection United area States of

Amendment law

Constitution, automobile precedent.

124 (1997) .

Massachusetts exception
Commonweal th

the

the

follows
v. Mot ta,

Supreme 424 Mass.

Court
117.,

Thus,

"[a]ccording

to the automobile the search officers of

exception [a

to the is] cause car./1

warrant justified to

requirement, as long that Mass. vehicle and

vehicle

as the there at 47.,

had probable in. the way,

believe
451

was

contraband another

Garden,

,Put

the search where

of a motor the facts

is reasonable circumstances

and permissible within an

officer's

knowledge were

at the time of making to the warrant defendant

the search and seizure a prudent was person in an

sufficient that

'believ:ing

committing

,,---~-.-'!"-. -~--~-_ .."""""!I--}"!'!!'-~._"""""""~~~~

t
(

... ~.. _ ._ ..... _~_._._ ..... ~_

~J!III'_

.... _._~ ...._~

~_.__

=~_~_,, __ ,,""" .. .._--_ ..- __ ... _ ,,_-. _ __ --

~
i

24

offense.

Johnson,

461

Mass.

at

49

&

n.6.

In

this that

case, Trooper the

Irish had probable car contained of

cause to believe evidence of a he

defendant's

federal could

crime: validly ,

possession

marijuana.

Thus,

search the car for evidence state

of that crime. officers whom are they G.L.

Massachusetts to

and local police all of 22C, persons unlawful 5 10.

empowered have

"examine to iuspect G.L. c.

abroad

reason 5

design." This

c. 41,

98;

authority "[t]he

extencls to the investigation general rule is that local

of federal police are

crimes: not

precluded
v. Peoria,.

frO~ enforcing 722 F.2d 468,

federal 474

statutes." Cir. De

Gonzalez rev'd

(9th
v.

1983),
La Vina,

on F.3d

other

grounds,

Hodger~DurCJ,in

199

1037

(9th Cir.

1999)

"Where

state enforcement

activities

There are federal statutes that specifically authorize state and local officials to arrest a person suspected of committing, a federal offense. See, e.g., 8 U. s. C. 5 1252c (statute authorizes state and local police to arrest suspect of violating immigration laws in .. limited circumstances); 21 U.S.C. 5 878 (statute authorizes attorney general to designate state and local officers with powers of a drug enforcement officer) . These statutes, however, do not "limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law Instead, [these statutes] merely create[] an additional vehicle for the enforcement of federal law. " Vasquez-

25

I do not impair federal regulatory interests

u

concurrent See Uni ted

&

enforcement States n.4

activity

is authorized.

Id.

v. Vasquez-Alvarez, (10th Cir. 1999)

176 F.3d 1294,1296,1299 (state law-enforcement

officers

have general for

authority of

to investigate laws);

and make arrests Uni ted 1301 has into States & v. n.3

violations

federal 728 (state

Salinas-Calderon,
(loth

F.2d

1298,

I 1

Cir. 1984)

trooper to inquire

general possible

I 1

investigatory federal crime

authority of knowingly

transporting States); see

aliens who are also Arizona v.

1
J

unlawfully United

in the United 183 L.Ed.2d part and that

1 ,

States, in

351, 398

(2012) in

(Alito, J.,
("It is

I ,

concurring well

dissenting state to make and

part) local

established

officers for

generally violations Here,

have authority

stops and arrests

U ).

of federal criminal Trooper impair the Irish's

laws

search

of

the

defendant's On a

car did not the

a federal trooper

regulatory was acting

interest. to further

contrary,

Alvarez, 176 F.3d at 1295. See also Arizona v. United States, 183 L.Ed.2d 351, 400 (2012) (Alito, J., concurring in part and dissenting in part) ("a grant of federal arrest authority in some cases does not manifest a clear' congressional intent to displace the States' police powers in all other cases
U ).

~~~.""!"' ..~... !""'..._"."" .. ~~~~""'!.~

.. ~_ .. ~ ..

""!".

_.~

.....

""""' ..

_= ..... ~

......,.-...~~"""'IIIIIIl . """"'-.._ ... _.- ..... .... .... ....... -.... -...__ ..-_-... .... _.... -._.... - .. .. ----

26

federal ounce

interest;
of

although has

possession been

of iess

than

an in

marijuana under any v. ("[i]t a

>

decriminalized

Massachusetts, to possess in

federal amount.

law, marijuana See 588 21 F.2d U.S.C. 1136,

is illegal 5 844 (a); (5th

United

States

Harold, is well

1143

Cir. 1979) law that

established be

under

federal any is

conviction amount of

will any

upheld

where

measurable found"; is even

controlled or. scintilla a

substance

a trace to

amount

of marijuana see also

sufficient

support 545 U.S.

conviction); 1, .29 use (2005) of

Gonzalez state

v. Raich,

(California did

law

legalizing federal

medicinal agents

marijuana

not prevent marij uana Irish's consistent of federal,

from seizing law).

and destroying Indeed, Trooper was law in

pursuant

to

federal in

investigation with

.the

instant in the

case case

the numerous and local

examples officers See, 317 a law,

state,

cooperating

drug-related v. Gonzalez, the

investigations. 426 Mass. claim 313, that

e. g.,

Commonweal th (in dismissing violated noted, a his

(1997) wiretap Court assisting v.

defendant's under

rights Lowell

Massachusetts were Uni ted

"[t]he Federal

police-

merely Sta tes

investigation");

Franklin,

630

F. 3d

,--_

.._-_ .... '~- .__ ._------------ -,--_._,---, ...- ._._.-

.__ .... _.-.-----

27

53, 54 local

(1st Cir. authorizes of

2011)

("In 2003,

federal,
a

state,

and

began the drug

conducting trade [in a

coordinate housing

investigation complex]") Thus, marijuana cause to

.5

Boson

when

Trooper

Irish smelled

and saw unburned

inside ,the defendant's believe' that the

car, he had probable car possessed more

marijuana. v. Villatoro, 458 Mass.

See Garden,

451 Mass.

at- 50; Commonwealth

76 Mass. App. Ct. 645, 647, rev. denied,

(

1101 search

(2010) . those

As areas

result,

he

could could
of

permissibly house

of the "'The . the

car that scope

additional search of

marijuana.

warrantless by the

of an automobile
';

[is defined] places in whlch

obj ect

the

search

and

theie

is probable 451 Mass. Those as the

cause at 50

to believe (quoting the have

it may be found.'" Cast, center 407 Mass. console at and in

Garden,
906) .

areas

included could

trunk,
5

defendant

kept marijuana

In Gonzalez and -Franklin, state. agents worked in conjunction with federal agents. Cooperation among federal and, local agents, however, is not a prerequisite for a state or local officer to investigate a federal crime. See Vasquez~Alvarez, 176 F.3d at 1295-96 (state employee arrested suspect for violation of immigration laws); United States v. Sapp, 272 F.Supp.2d 897, 900-01 (N.D.Ca. 2003) (state officers arrested defendant on federal warrant) .
. /

~.........,

....

_~-~

~,IIIIII.

~_~

. ~_

.. "":':. __

!"'"""""_~.. ~.__ ""! ..

111111_ ~ .

"!""_ ..

~~~-

.."'

- ..

-~

-._-

-._

.. -

-.-

-.

.. _.-.~_-

_-

..

---:

.-.

..

-,

.-

-....

,--.-

28
:",

either might drug,

spot.

See,

e.g.,

id.

(odor of fresh marijuana or transporting cause that the fresh as

reasonably which would

suggest provide found

selling

probable in

marijuana noted, inside illegal

Johnson,

would supra

be

trunk) . trooper properYy view.

could

Moreover, was seize See,

13-14,

once he were at

the

validly those e. g. ,

of

the

car, that

could in 51

items 461

plain (officer

Mass.

permissibly
/

seize

a revolver pursuant Supreme mandate

that

was

discovered

quring ,

a search

conducted The does the not

to the automobile Judicial Court's

exception). decision in Cruz case,

a different argued under

result.

In that

Commonwealth contraband

that, state

because law, the to at

marijuana smell of for The only that, than

remained burnt

marijuana

permitted 459

oficers Mass.

search 466-77. were and less

additional Court

contraband. holding for

disagreed, to S search

that

officers contraband of

enti tIed because

criminal

32L

decriminalized the

possession smell cause

one ounce no longer

of marijuana, provided

of burnt under

marijuana law to The had

probable

state" Id.

search

for

additional did not argue that the

Commonwealth

officers

29

probable crime was

cause

to believe

that

evidence

of a federal the Court did

inside

the car, and therefore

not consider

that argument.
CONCLUSION

For

the

foregoing requests judge's

reasons, that order this

the

Commonwealth Court evidence

respectfully reverse recovered the

Honorable

suppressing car.

from the defendant's

Respectfully submitted FOR THE _COMMONWEALTH,

Attorney

AUGUST

2012

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30

ADDENDUM

1252c. Authorizing state enforce~ent officials to arrest and illegal aliens

USC,

and local law detain certain

(a) In general. Notwi thstianding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who \. (1) is an a'lien illegally States; and present in the United

(2) has p~eviously been convicted of a felony in the. United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required c. for the Service to take tDe individual into Federal custody for purposes of deporting or removing the alien from the United States. (b) -Cooperation. The Attorney General' shall cooperate with the States to assure that information in the control of the Attorney General, including information in the N'ational Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) is made available to such officials.
21 USC, ~ 844. Penalty for simple possession

(a) Unlawful acts; penalties. It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless' such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course "of his professional practice, or except as otherwise authorized by this title or title III. It shall be unlawful for any person knowingly' or intentionally to possess any list I chemical obtained

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31

pursuant to or under authority of a registration issued to that person under section 303 of this title [21 uses ~ 823] or section 1008 of title III [21 uses ~ 958] if that registration has been revoked or suspended, if that registration has expired, or if the registrant has ceased to (:10 business in the manner contemplated by his registration~ It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 ,day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product, except that, of such 9 grams, not 'more than 7.5 grams may be imported by means of shipping through any private or commercial carrier or the Postal Service. Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $ 1,000, or both, except ,that if he commits such offense after a prior conviction under this title or title III, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentence~ to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $ 2,500, except, further, that if- he commi ts such offense after two or more prior convictions under this title or ti t-le II I, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $ 5,000. Notwithstanding any penalty provided in this subsection, any person convicted under this subsection for the possession of ,flunitrazepam shall be imprisoned for not more than 3 years, shall be fined as otherwise provided in this section, or both. The imposition or execution of a minimum sentence required to be imposed under this subsection shall not be suspended or deferred. Further, upon conviction, a person who violates this subsection shall be fined the reasonable costs of the investigation and prosecution of the offense, including the costs of prosecution of an offense as defined in sections 1918 and 1920 of

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ti tle 28, United States Code, except that this sentence sh?ll not apply and a fine under this section need not be imposed if the court .determines vnder the provision of title 18 that the defendant lacks the ability to pay. (b) [Repealed] (c) "Drug, narcotic, or chemical offense" defined. As used in this section, the term " drug; narcotic, or chemical offense" means any offense which proscribes the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to 'possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited under this title.
21 USC, ~ 878. Powers of enforcement personnel

(a) Any officer or employee of the Drug Enforcement tribal, or local law Administration or any State, by the ~ttorney General enforcement officer designated may (1) carry firearms; arrest execute and serve search warrants, inspection warrants, warrants, administrative subpenas, and summonses issued under the atithority of the United States;
(2,)

(3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony; (4) make seizures of property provisions of this title; and pursuant to the

(5) perform such other law enforcement the Attorney General may designate.

duties

as

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33

-(b) State and local law enforcement officers performing functions und~r this section shall not be deemed Federal employees and shall not be subj ect to provisions of law relating to Federal employees, except that such officers shall be subject to section 3374(c) of title 5, United States Code.
G.L. c. 22, Regulations; ~ 10. Officers Qualifications; -- Appointment; Assignments. Rules and

Whenever the governor shall deem it necessary to provide more effectively for the protection of persons and property and for the maintenance of law and order in the commonwealth, he may authorize, in writing, the corone~ to make appointments to the department of state police, together with such other employees as the governor may deem necessary for the proper administration thereof. The appointment of the officers herein provided for shall be by enlistment and such appointees shall be exempt. from the requirements of chapter thirty-one; provided, however, that the classification of such positions shall be subject to the provisions of section forty-five of chapter thirty. Said officers shall have and exercise within the commonwealth all the powers of constables, except the service of civil p:t:'0cess, _and of police officers and watchmen. The colonel may, subject to the provisions of this chapter and of chapter one hundred and fifty E, make rules and regulations for the force, including matters pertaining to the discipline, organization, government, training, compensation, 'equipment, rank structure, and means of swift transportation; provided that no member of said force shall be used or called upon for service in any industrial dispute, unless -actual violence has occurred therein, and then only by order, in writing, of the governor. Any member of said -force violating any of the rules and regulations for said force shall be subj ect to discipline and discharge in accordance with said rules and regulations. The colonel may expend annually for the expenses of administration, organization, government, training, compensation, equipment and maintenance such amount as the general court may appropriate.

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No person who has not reached his twenty-first birthday shall be enlisted for the first time as an officer of the state police. No person shall be eligible to take a competitive examination conducted pursuant to section 11 if he has reached his thirtyfifth birthday on or before the final date for the filing of applications for s0ch examination, as stated in the examination notice. Subsequent to January first, nineteen hundred and eighty-eight, no person who smokes any tobacco product shall be eligible for appointment as a uniformed member of the department of state police, and no person so appointed after said date shall continue in such office or position if such person thereafter smokes any 'tobacco product; the personnel administrator shall promulgate regulations for the implementation of the provisions of this sentence. No person shall be enlisted as an officer of the state police until he shall have undergone an ini tial medical and physical fitness examination .and shall have met such initial medical and physical fitness standards as prescribed by rules and regulations promulgated by the colonel. No person shall be enlisted as a uniformed member of the state police except in accordance with the provisions of this section; provided further, that no person employed as a police officer for an agency other than the department of state police, including but not. limi ted to, any agency' of the commonwealth or any of its political subdivislons, shall be allowed to transfer into a position asa uniformed member of the state police. Except as otherwise provided, no officer appointed under this section shall be denied continued enlistment if he has served satisfactorily for six years or more; provided, however, that as a condition of such continued enlistment. he shall undergo a biennial . in-service medical and physical fitness examination and shall meet such in-service medical and . physical fitness standards as prescribed by rules and regulations by the colonel to ensure that any such officer appointed under this section is physically able to perform the necessary duties and functions necessary to the normal operation of the department'of
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35

state police. If any such officer fails to meet such in-service standards, he shall be eligible to undergo a reexamination wi thin sixty days of the date of the in-service medical or physical fitness examination failed. If he fails the reexamination, he shall be eligible to undergo a second reexamination within ninety days of the date of the first reexamination. If he fails to pass the second reexamination, his continued enlistment shall be denied; provided, however, that if the failure to meet such in-service standards is due to a temporary injury, illness or incapacity, such officer shall continue to be employed wi th duties adapted to such injury, illness or incapacity until such time as such officer shall pass such in-service standards. An officer whose continu~d enlistment is denied because of his failure to meet such in-service medical or physical fitness standards shall not be presumed by virtue of said denial to be disabled for the purposes of chapter thirty-two. The colonel may assign, reassign or transfer any uniformed member of the state police at any time to any duties in any of said divisions or said bureaus within the department. All such ,uniformed members within the department without 'exception and regardless of rank, assignment or duties "regularly performed shall be subject to all duties of the uniformed members of the state police including, but not limited to, emergency duties.
G.L. c. Officers. 41, ~ 98. Powers' and Duties of Police

The chief and other police officers of all cities and towns shall have all the powers and duties of constables except serving and executing civil process. They shall suppress and prevent all disturbances and disorder. They may carry within the commonwealth such weapons as the chief of police or the board" or officer having control of the police in' a city or town shall determine; provided, that any law enforcement officer of another state or terri tory of the United States may, while on official business within the commonwealth, carry such weapons as are authorized by his appointing authority. They may examine all persons

1
\

36

I
abroad whom they. have reason to suspect of unlawful design, and may demand of' them their business abroad and whither they are going; ma~ disper~eany assembly of three or more persons, and may ehter any building ~o'suppress a riot or breach of peace ,therein. Persons so suspected who do not give a satisfactory account of themselves, persons so assembled ,and who do. not dis~erse when ordered, and pefson~ making, aiding and abetting in a riot. or disturbance may be, .arrested by the police, and may thereaft~r' be safely kept by: imprisonment or otherwise unless released in the manner provided by law, and' tlbken 'before a district . ~ court to be examlned and prosecuted. , Whoever is arrested and chafged with any offense committed during a riot, '( disturbance or mass. demonstration may be fingerprin!ited, in,accordance with th'e protocol of the identif+cat~on system of the department of. the state fPollce and may 'be photographed. ~ !;
~
,
"
.

If a police officer stops a jperson for questioning pur~uant to this section and~ea~onably suspects that he .is in danger of life or lilmb, he may search such .1' person for a dangerous weapon. lIf he finds such~weapon or any other thing the po~session bf which may constitute a crime, hso may tak~ and keep it until the completion of the questioning ,'~ at which time he shall return it; if lawfully .posses~ed, or he shall arrest su~h person. II :l
G.L. c. 90, Violations;

5 21.

Arrest

~ Without ~ ~I
JI

Warrant

for

Certain

Any officer authorized to m~ke arrests may arrest wi thout a warrant and keep ln custody for not more than twenty-four hours, unless ~a Saturday, Sunday o~ a legal holiday intervenes,' arlY person who, while operating a. motor vehicle on :ianyway, .as defined in section one, violates the ptovisions of the first Paragraph of section ten of chapter ninety. Any arrest made pursuant to this paragr~ph shall be' deemed an ,arrest for the criminal offense or offenses invol \jed and not for any' civil motor vehicle infraction arising out of the same incident. ,:
II .
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37

Any officer authorized ta make arrests, provided such officer is in uniform or conspicuously displayin~ his badge of office, may arrest without a warrant and keep in custody for not more than twenty-four hours, unless Saturday, Sunday or legal holiday intervenes, any person, regardless of whether or not such person has in his possession a license to operate motor vehicles issued by the registrar, if such person upon any way or in any place to which the public has the right of acces s, or upon any way or in any place to which members of the public have access as invitees, operates a motor vehicle after his license or right to operate motor vehicles in this state has been suspended or revoked by the registrar, or whoever upon any way or place to which the public has the right of access, or upon any way or in any place to which members of the public have access as invitees, or who the officer has probable cause to believe has operated or is operating a mo~or vehicle while under the influence of intoxicating liquor, .marihuana or narcotic drugs, or depressant or stimulant substances, alIas defined in section one of chapter ninety-four C, or under the influence of the vapors of glue, carbon tetrachloride, acetone, ethylene, dichloride, toluene, chloroform, xylene or any combination" thereof, or whoever uses a motor vehicle without authority knowing that such use is unauthorized, or any person who, while operating or in charge of motor vehicle, violates the provisions of section twenty-fi ve of chapter ninety, or whoever operates a motor vehicle upon any way or in any place to which members of the public have a right of access as invitees or'licensee~and without stopping and making kn~wn his name, residence and the register number of his motor vehicle goes away after ~nowingly colliding wi th or otherwise causing injury to any person, or whoever operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered in violation of paragraph (a) of subdi vision (2) of section 24 and by such operation causes another p~rson serious bodily injury as defined in section 24L, or whoever commits motor vehicle homicide in violation of subsection (a) or (b) of section 24G.

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38

Any person who is arrested pursuant to this section shall, at or before the expiration of the time period . prescribed, be brought before the appropriate district court and proceeded against according to the law in criminal or juvenile cases, as the case may be, provided, however, that any violation otherwise cognizable as a civil infraction shall retain its character as, and be treated as, a civil infraction notwithstanding that the violator is arrested pursuant to this section for a criminal offense in conjunction with said civil infraction. An investigator or examiner appointed under section twenty-nine may arrest without a warrant, keep in custody for a like period, bring before a magistrate and proceed against in like manner, any person operating a motor vehicle while under the influence of intoxicating liquor or marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, irrespective of his possession of a license to operate motor vehicles issued by the registrar. G.L. c. 94C, ~ 32C. Class D Controlled Substances Unauthorized Manufacture, Distribution, Dispensing or Possess~on; Penalties. (a) Any person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense. or cultivate a controlled substance in Class o 6f section thirty-one shall be imprisoned in a jail or house of correction for not more than two years or by a fine or not less than five hundred nor more than fiVe thousand doliars, or both .. ' such fine and imprisonment. (b) Any person convicted of violating this' section after one or more prior convictions of manufacturing, distributing, dispensing, cultivating or possessing with intent to manufacture, distribute, dispense or cultivate a controlled substance as defined by section t0irty-one under this or any prior law of this jurisdiction or of any offense of any other

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39

jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense shall be punished bya term of imprisonment in a jailor house of correction for not less than one nor more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars, or both such fine and imprisonment. G.L. c. 94C, ~ 32L. Possession of One punce or Less of Marihuana -- Civil Offense. 'Notwithstanding ariy general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subj ecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfei tureof the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfei ture and civil penalty provisions, provided he or she completes i drug awareness program which meets the criteria set forth in Section 32M of this Chapter. The parents or legal guardian of any offender under the age of eighteen shall be notified in accordance wi th Section 32N of this Chapter of the offense and the availability of a drug awareness program and community service option. If an offender under the age of eighteen fails within one year of the offense to complete both a drug awareness program and the required community service, the civil penalty may be increased pursuant to Section 32N of this Chapter to one thousand dollars and the offender and his or her parents shall be jointly and severally liable to pay that amount. Except as specifically provided in "An Act Establishing A Sensible State Marihuana Policy," neither the Commonwealth nor any of its political subdivisions or their respective agencies, authorities or instrumentalities may imp/ose any form of penalty, sanction or disqualification on an offender for possessing an ounce or less of marihuana. By way of illustration rather than limitation, possession of- one ounce or less of marihuana shall not provide a basis to deny an offender student financial aid, public 'housing or. any form of public financial assistance

40

including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent. Information concerning the offense of possession of one ounce _ or less of marihuana shall not be deemed "criminal offender record information," "evaluative information," or "intelligence information" as thos~ terms are defined in Section 167 of Chapter 6 of the General Laws and shall not be recorded in/the Criminal . . Offender Record Information system. As used herein, "possession of one ounce or less of marihuana" includes possession of one ounce or less of marihuana or tetrahydrocannabinol and having cannabinoids or cannibinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body. Nothing contained herein shall be construed to repeal otmodify existing laws, ordinances or bylaws, regulations, persorinel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, ~aws concerning the unlawful possession of prescription forms of marihvana ,or tetrahydrocannabinol such as Marinol, possession of more than one ounce of marihuana or tetrahydrocannabinol, or selling, manufacturing or trafficking' in marihuana or tetrahydrocannabinol. Nothing contained herein shall prohibit a political subdivision of the Common~ealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penal ties for the public use of. marihuana or tetrahydrocannabinol: G.L. c. 94C, ~ 34. Unauthorized Possession; Penalties; Dismissal and Sealing of Record in Certain Cases of First Offense. No person knowingly or intentionally shall possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the provisions of this chapter. Except as provided in Section 32L of this

41

Chapter or as hereinafter provided, any person who violates this section shall be punished by imprisonment for not more than one year or by a fine of not more than one thousand dollars, or by both such fine and imprisonment. Any person who violates this section by possessing heroin 'shall for the first offense be punished by imprisonment in a house of correction for not more than two years or'by a fine of not more than two thousand dollars, or both, and for a second or subsequent offense shall be punished by imprisonment in the state prison for not less than two and one-half years nor more than five years or by a fine of not more than five thousand dollars and imprisonment in a jail or house of correction for not more than two and one-half years. Any person who. violates this section by possession of more than one ounce of marihuana or a controlled substance in Class E .of section thirty-one shall be punished by imprisonment in a house of correction for nqt more than six months or a fine of five hundred dollars, or both. Except for an .offense involving a controlled substance in Class E of section thirty-one, whoever violates the provisions of this section after one or, more convictions of a violation of this section or of a felonY under any other provisions of; this chapter, or of a corresponding provision of earlier law relating to the sale or manufacture of a narcotic drug as defined in. s'aid earlier law, shall be punished by imprisonment in a house of correction for not more than two years or by a fine of riot more than two thousand dollars, or both. If any person who is charged with a violation of this section has not previously been convicted of a violation of any provision of this chapter or .other provision of prior law relative to narcotic drugs or harmful drugs as defined in said prior law, or of a felony under the laws of any state or of the United States relating to such drugs, has had his case continued without a finding to a certain date,. or has been convicted and placed on probation, and if, during the period of said continuance or of said probation, such person does not violate any of the conditions of said continuance or said probation, then upon the expiration of such period the court may dismiss the

42

proceedings against him, and may order sealed all 6fficial records relating to his arrest, indictment, conviction, probation, continuance or discha~ge pursuant to this section; provided, however, that departmental records which are not public records, maintained by police and other law enforcement agencies, shall not be sealed; and provided further, that such a record shall be maintained in a separate file by the department of' probation solely for the purpos~ of use by the courts in determining whether or not in subsequent proceedings such person qualifies under this section. The record maintained by the department of probation shall contain only identifying informatipn concerning the person and a statement that he has had his record sealed pursuant to, the provisions of this section. Any conviction, the record of which has been sealed under'this section, shall not be deemed a conviction for purposes of any disqualification or for any other purpose. No person as to whom such sealing has been brdered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, indictment, conviction, dismissal, co~tinuance, sealing, or any other related court proceeding, in response to any inquiry made of him for any purpose.
i

Notwi thstanding any other penalty provision of this section, any person who is convicted for the first time under this section for the possession of marihuana or a controlled substance in Class E and who has not previously been convicted of any offense pursuant to the provisions of this chapter, or any provision of prior law relating to narcotic drugs or harmful drugs as defined in said prior law shall be placed on probation unless ~uch person does not consent thereto, or unless the court files a written memorandum stating the reasons for not so doing. Upon s,uccessful completion of' said probation, the case shall be dismissed and records shall be sealed.
\

of It shall be a prima facie defense to a charge section that the possession of marihuana under this in a defendant is a patient certified to participate

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43

program described in chapter research therapeutic possessed the marihuana for D, and ninety-four to such program. personal use pursuant
G.L. c. 269, ~ 10(h) (1) Weapons - Dangerous Weapons

Unlawfully

Carrying.

****
(h) (1) Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished by imprisonment in a jailor house of correction for not more than 2 years or by a fine of not more than $500. Whoever commits a second or subsequent violation of this paragraph shall be punished by imprisonment in a house of correction for not more than 2 years or by a fine- of not more than $1,000, or both. Any officer authorized to make arrests may arrest without a warrant any person whom the officer has probable cause to believe has violated this paragraph.

****

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44

THE COURT: Mr. Drysdale? anything,

Okay-

Anything

else,

I'm not saying you have to say

just if you doNo, no.

MR. DRYSDALE: THE COURT:

I'm going to deny the The defendant, ~

defendant's. motion to suppress. Anthony

Craan, was taken into custody following

a stop -- was not taken into custody, was charged following,a the State police. led to discovery stop of his motor vehicle by The stop of the motor vehicle of some marijuana, three pills,

and'some ammunition, In this docket.

which led to the complaints

The defendant has filed a motion

to

suppress which seeks to suppress all evidence seized during the stop on. the grounds that his rights have been violated under the Fourth Fourteenth Amendment, Article Declaration of Rights. 14 of the

For the reasons stated,

the motion to suppress is denied. After an evidentiary hearing and a of the witness, [

determination of the credibility

State police Trooper Scott Irish, the court finds based on the credible evidence and the

G & M COURT REPORTERS, LTD. 1.800.655.3663 - www.gmcourtreporters.com

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45

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reasonable

inferences drawn from that evidence

2 3 4 5
6

that on June the 11th, 2010, the State Police were conducting around 1:30 a.m. a sobriety checkpoint in and

Trooper Irish was the officer to

who was the contact trooper, first person have contact with vehicles.

Each and every if the operator

7 8 9

vehicle was stopped to determine was operating

under the influence of alcohol.

At the time, Mr. -- Trooper Irish came In 10

11

contact with the defendant, Mr. Craan. Mr. Craan was operating a gray Mercedes. stopped by the trooper. He was

The trooper identified The

12 himself. 13 troOper immediately 14 unburnt marijuana 15 The trooper then asked Mr. Craan if he 16 would pull into the screening area. 17 pulled about 50 feet away. 18 approached him on foot. 19 through the open window with Mr. Craan, again
20

Mr. Craan rolled down his window.

smelled the strong odor of

from within the vehicle.

Mr. Craan

The trooper

He made contact again

smelled the strong odor of unburnt marijuana 21 said to Mr. Craan that he smelled the strong 22 odor of unburnt marijuana, 23 any more marijuana
24

and

and asked if he had

in the motor vehicle.

G & M COURT REPORTERS, LTD. 1.800.655.3663 - www.gmcourtreporters.com

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Mr. Craan was responded another that person they had been smoking, there in the vehicle,

II

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marijuana. The by saying: trooper It's then confronted marijuana I smell. the glove could see, aided from he to the defendant I smell; At that

not burnt that

II

it's unburnt point,. Mr. compartment

marijuana Craan where then

II

opened

the trooper

9'
LO

by a flashlight the generators, believed based

and the overhead green on his vegetable training

lighting matter

that

Ll
12

and experience

be marijuana. At that his passenger

H

13 14
!

point

he removed

Mr.

Craan them

and

from the vehicle. was seized

patted

15
16 17 18 19

down.

No evidence

as a result also

of

that pat-down. this search.

Another

trooper

observed

The trooper vehicle grinding and found marijuana

then went

into

the motor used side for

a grinder

commonly

20
21
r

in the driver's and some marijuana some baggies

door,

I
II
!I'

three blue pills, center console,

in the appeared

I 22
23
24

also

which

II

to have

a residue

of burnt

marijuana

in them. vehicle

He then popped

the trunk

of the motor

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---:-----.

------

. 47

Page

43

and
2

in plain tralnlng

view and

saw what experience,

he believed,

based

on

his

to be marijuana

3 4 5 6
7

[sic] The Mr. Craan trooper there had was some conversation made with to the

and

a statement that the

effect belonged was that

th.at he believed to a friend,

ammunition guard. There

a security

8
9

further they

conversation. weed came

Mr. Craan but they from. the had

indicated no idea

do smoke

10
11

where

the Ecstasy The

trooper from size, has

identified the console shape

three

blue

12
13 14

pills based The

received on the

as Ecstasy, on them.

and stamping

trooper

the experience. court said

He is qualified

to know,

as the

in Commonwealth Based on

15 16
17 The 18 in the seizure 19 without a warrant. Therefore, of establishing validly conducted the Commonwealth that the search to an of evidence, was conducted search of the vehicle, which resulted versus Garden, the odor of marijuana.

his experience,

he is qualified

to know.

20
bears 21 and seizure 22 exception 23 COfl\.ITIonwealth v. Franklin, 24
b===========7 ... ================:;=========:!J

the burden was

pursuant see 885,

to the warrant

requirement, 376 Mass.

898,

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48

II
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1 2

1978.

The smell of marijuana

alone can supply is

I
II

31
4'

II

probable nearby.

cause to believe Commonwealth

that marijuana

versus Garden,

451 Mass.

43, at 48, 2008.

In Garden, the court found the coming from a vehicle' s cause for a

6 7 8 9 10
11

II

smell of burnt marijuana occupant's clothes

II

supplied probable

search of the vehicle. not distinguish marijuana marijuana

However, the court did

between burnt and unburnt that the smell of caus~ for a

in its conclusion

alone can provide prob~ble

12
1 --,

search of the vehicle. The enactment of General Laws, 94C,

.lJ

14 15 16 17 18 19 20 21 22 23 24

section 32 I through N does not change the probable cause analysis, of marijuana that
lS,

that the smell cause to

I
I
\I

alone can supply probable is nearby.

believe that marijuana Commonwealth

Also citing

versus DeGray, 77 Mass. Appeals v. Villatoro,

Court 122, 2010, and Commonwealth

76 Mass. Appeals Court, also the year 2010. The search of the vehicle was justified by exigent circumstances cause. supported by probable

II !!

A search of a vehicle based upon

\

exigency commonly involves a claim that a crime

G & M COURT REPORTERS, LTD. 1.800.655.3663 - www.gmcourtreporters.com

~-~-_._~-_._-..
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Page

1 2

r
6 7 8.

49

been committed and that evidence is or has the crime can be located in the 'vehicle. Commonwealth

of See

II

versus Motta, 424 Mass. 117, 120,

3 4 5 basis to believe marijuana that any particular quantity of 1997. In this case, the basis for the search There was no

was the odor of unburnt marijuana.

was concealed anywhere in the vehicle

and there was no basis to believe that any quantity exceeding 9 10 11 search under the automobile exception 12 than requiring 13 committed. 14 .warrantless 15 probable cause to believe that a motor vehicle 16 parked in a public place and apparently 17 of being moved contains contraband or evidence 18 of a crime, Commonwealth 19 616, 624, 2008; also Commonwealth 20 21 22 only items that are intrinsically 23 also includes articles which it is unlawful 24 to criminal, but 420 Mass. 542, 554, at 1995. "Contraband" .quote/unquote, does not mean
v. v.

an ounce necessary

to provide

a basis for an arrest was present. However, the rule on probable cause to is broader

that a crime has been or is being

The automobile exception permits searches where the police have

capable

Bostock, 450 Mass. Alvarado,

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..1

46 have In one's possession. Wojcik, Sullivan 358 Mass. versus

50

Ii

!i

Commonwealth

versus

623, 628, 1971.

See also

I
II

the District Court of New

Hampshire,

384 Mass. 736, 742, 1981. of General Laws 94C, It ~

The enactment Section.32,

did not legalize marijuana.' it. The statute

simply decriminalized authorized possession marijuana.

the issuances of a civil fine for and requires forfeiture of the to seize from

The police are authorized

and forfeit less than an ounce of marijuana anyone in possession the decriminalization of that substance,

despite

of such possession.
II

In this case the offense in question, which the officer had reason to believe at first, that is, possession
r

of marijuana,
lS

does

implicate contraband which and forfeiture.

subject to seizure under

The search was permitted

the automobile exception. the motion is denied.

For those reasons,

Ms. White, did you take down those -those times so that if Mr. Drysdale wants to appeal me, he has something to appeal on? THE CLERK: Yes.

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j Sl

SUFFOLK,

ss. '

' doscon

],r.

.' .\/lUH1Clpa

I""'t.... " :::)urt

},.-10.

Dorchester Division 1007 CR OO"-iA27

COMMONWEALTH OF MASSACHUSETTS
v.

Anthony Craan, Defendant

) ) ) ) )

~OTXON TO SUPPRESS EVIDENCE Nowcomes the Defendant in the above entitled matter and moves this Honorable

Court to enter an order suppressing as evidence at trial or hearing on the above complaint the following items seized by officers ofthe Commonwealth: .i ! 1. Marijuana 2. 3 blue pills: Ecstasy 3. bullets '
'C' "., ....

As grounds therefore, Defendant asserts that such warrantless selzure of the evidence violated Defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article Fourteen of the Declaration Constitution of the Commonwealth. Defe.ntf~~t,', By:his Attqthey,
~ ~
t --.-~(

of Rights of the

(\
~

____

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--'-

Leon P J. Drysdale, Esq. 2038 Dorchester Avenue Dorchester, MA. 02124

617 -825-6483

I certify ;,hat [ mailed "a copy 9f this l\'Iotion, postage prepaid, to the District Division on Attorney's Office of Boston Municipal Court, Dorchester
,.<, ," ,.''''''~~-'-' """ ~._.

f\)~1
," '

2010.

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52

SUFFOLK, ss.

Boston lvIunicipai ('(!\.Jrt Drorchester Division 10 CR 004427

COM1'v10NWEALTH OF ) MASSACHUSETTS )
)
v. ) I J

Anthony CIaan, Defendant

) )

}Yli01'1LON FOR RECONSIDERATJl.ON OF JUDGE'S Q:ENIAL OF DEFENDANTS M01'Jl.ON 1'0 SUPJP1CffiSS Now comes the Defendant in the above-captioned matter and moves this

Honorable Cou~1re-consider it's denial of Defendant's Motion to Suppress that was held bv the court on February 25,2011, Justice Miller sitting.
J

The reason for this is that the Supreme Judicial Court of Massachusetts

decided

Commonwealth

v. Cruz (SJC-l 073 8) on April 19, 2011 and this decision has a direct

bearing on this case. The Ji~fendant ( ; By h\s (\tWlney,

'\.
-':;.
"

o .c "'.,\,>

Leon P]. Drysdale, Esq. 2038 Dorchester Avenue Dorchester, MA. 02124 671-825-6483

------_
.
J." ~~_.. {

..

~
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Leon PJ. Drysdale, Esq .

_---

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;

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BOST01~

UNICIFAL COURT DORC}-1E~)TEF. DIVISION DKT NO l007CR004427

.COMMONWEALTH
v.

ANTHONY CRAAN COMMONWEALTH'S REQUEST FOR WRITTEN FINDINGS AND RULINGS

Now comes the Commonwealth that this Honorable

in the above-entitled

matters and respectfully oflaw

requests

Court issue written fmdings of fact and written-rulings 19,2011, allowing the Defendant's

of the Order

(0/lill , J.) dated October er The Commonwealth Commonwealth

Motions To Suppress.

states that such findings and rulings are necessary to permit the its appeal from that Order pursuant to Mass. R. App. P. 3(a), Mass. v. Hernandez, 421 Mass. 272, of

to prosecute

R Crim. P. 15, and M.G.L. ch. 278, ~ 28E. See Commonwealth

2.78-80 (1995) (vacating order dismissing complaint where trial judge made neither findings
fact nor rulings oflaw,
.

and remanded

to trial court for such findings and rulings).

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COMMONWEALTH'S

RECORD

APPENDIX

Criminal Criminal

complaint docket

l007CR004427

C.A.

l007CR004427 to suppress evidence of

C.A. 2-8 C.A. 9-11 12-13

Defendant's Defendant's denial

motion

motion for reconsideration of motion to suppress

Commonwealth's opposition to the defendant's motion for reconsideration of the denial of the defendant's motion to suppress Commonweal th' s request for written findings and rulings with judge's endorsement Commonwealth's
.~.

14-22 23-24 25-26 27

notice of appeal

Single justice docket No. SJ-2011-0509

:~
i

C.A. 1

_.
DOCKET NUMBER NO. OF COUNTS"

.'

CRIMINAL
POLICE

COMPLAINT

Trial ~ourt of Massachusetts BMC Department

COURT NAME & ADDRESS

~~ i,_t
.;,

~;

copy

1007CR004427

3
BMC Dorchester

DEFENDANT NAME & ADDRESS

Anthony

Craan Street MA

510 02136

Washington MA

Street

62

Thatcher

Dorchester,

02124\

Hyde Park,

(617)288-9500

,
SP South Boston
Obii'.

?rraignment 2010003149
ROOi"ll SESSION

Arraignment

(1 st) Session

The undersigned defendant committed

complainant, the offense(s)

on behalf

of the Commonwealth, and on any attached

on oath complains pages.

that on the date(s)

indicated

below

the

listed below

COUNT 1 . On 06/11/2010

CODE 269/10fTT

DESCRIPTION AMMUNITION WITHOUT

FlO CARD, POSSESS

c269 s10(h)(1)

did own, possess or transfer possession of ammunition, as defined in G.L. c.140, S121, without complying with the requi~ements relating to

firearm identification cards as provided for in G.L. c.140, S129C, in violation of G.L. c.269, S10(h). PENALTY: jailor house of correction not more than 2 years; or not more than $500; S10(e): item to be ordered :orieited. 2 On 06/11/2010, 94C/32C/C DRUG, POSSESS TO DISTRIB CLASS 0 c94C S32C(a)

not being authorized by law, did knowingly or intentionally possess with intent to manufacture, distribute, dispense or cultivate a controlled

substance in Class D of G.L. c.94C, S31, to wit: Marijuana, in violation of G.L. c.94C, S32C(a). PENALTY: imprisonment not more than 2'h years; or not less than $500, not more than $5000; or both; G.L. c.280, S6B: plus Drug Analysis Fee of not less than $35, not more than $100, with maximum fee of $500 for multiple offenses from single incident. . 3 94C/34/C DRUG, POSSESS CLASS B c94C S34

PENALTY: imprisonment not more than 1 year; or not more than $1000; orboth.

SWORN TO BEFORE CLERK.MAGISTRATEJASST.CLERKIDEP. SIGNATURE OF COMPLAiNANT

ASST, CLERK

DATE

><

CLERK-MAGISTRATEJ

ASST. CLERK

DATE

NAME OF COMPLAINANT

x
requires this notice: If you are convicted of a misdemeanor crime of domestic violen' and/or possessing a firearm and/or ammunition pursuant to 18 U.S.C. S 922 (g) W-

Notice to Defendant: 42 U.S.C. S 3796gg-4(e) may be prohibited permanently from purchaSing olher applicable

related Federal, State, or local laws

_...:---=~'- ~-~---_._-

"
',.

I
1;

---'C';:-;'NDAI'H l~i;ME AND ADDRESS

------.

Anthony Craan 52 Thatcher Street Hyde Park, [VlA 02136

PRECOMPLAINT

ARREST DATE

FIRST FIVE OFFENSE c:;mJNT CODE

COUNTS OFFENSE DESCRIPTION

QFFENSE

DATE

1 2 3

269/10/TT 94C/32C/C 94C/34/C

AMMUNITION WITHOUT FlO CARD, POSSESS c259 S10(h)(1) DRUG, POSSESS TO DISTRIB CLASS D c94C S32C(a) DRUG, POSSESS CLASS B c94C S34

06/11/2010 06/11/2010 06/11/2010

DEFENSE~TV

. ,.' t.

,'._.. .>'6b'-"~'"
DATE & JUDGE

I
Bail

OFFENSE CITYfTOWN

POLICE DEPARTMENT

Boston
DATE & JUDGE

SP South Boston
FEES IMPOSED Counsel F~e $

DOCKET ENTRY

o
o

Attomey appointed (SJC R. 3:10) Atty denied & Deft. Advised per 211 D 32A Waiver of Counsel found after colloquy OPR

J1 ~D 3 2A112) j/-;,L.

o o

WAIVED WAIVED

Counsel Contribution (2110 3 2)

$
Default Warrant Fee (276 3 30111) $ condition Default Warrant Arrest Fee (276 3 30 'lI2) $ ~robation Supervision Fee (276 3 87 A)

o WAIVED o
WAIVED

1-./"

Terms of release set: 1 ~ .. -,,;-', :fb'-J_~'" -..

,r.v.'Jl.(.,'

o See Docket for special o Held (276 358A)

Arraigned

and advised:

'0 Right to bail

o Waiver

[illiPotenlial

of bail revocation (276 358) to review (276 358)

o WAIVED

o Right to drug exam (111E 3 10)

of jury found after coJloquy Advised of right to jury trial

Bail Order Forieited

o Does not waive

Advised of trial rights as pro se (Dist. Ct. Supp,RA) Advised of right of appeal to Appeals Ct. (M.R. Crim P.R. 28) SCHEDULING HISTORY NO. SCHEDULED DATE EVENT Arraignment RESULT JUDGE TAPE START! STOP

1 2 3 4 5 6 7 8

09/24/2010

1-(.'1' i:,.f 4 ~iV , '~:r! .

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o Held o Held o Held o Held o Held o Held o Held o Held o Held

0
Held "

o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved o Not Held but Event Resolved
0
Not Held but Event Resolved ' .

o Cont'd

o Cont'd ,J... o Cont'd ~,! L',~A\. ,..,1,,,--. Iq .. o Cont'd < j('} (~-..J o Cont'd J2, :.zof~ /lUAIJIJL ~ 'ff4 - /(!f',ff o Cont'd ?rtf ilJl)Sl) o Cont'd S'-S II "M) (fp;,/ 21107 t ,}-I]; o Cont'd Nl 01l0M {Ji lfY'vL ~.( 2A'){1 Li'~4 o Cont'd
F I

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0 Cont'd
PCH

' ,"

APPROVED ABBREVIATIONS ARR;. Arraignment PTH -= Pretrial hearing

SRP :; Status review 01 payments OFT A :; Defendant failed to appear

DeE:; Discovery comphance e.JUryselecllon

in jury session Warranllssued SEN:; Sentencing

BTR = Bench tna!

CWF:; warrant

JTR = Jury tnal

= Probable cause hearing

to terminale recalled PRO:; warrant

MOT = Motion hearing

Probation scheduled

SRE.:::Status review

FAT.::: First appearance

Continuance-without-finding issued WR

scheduled or default

to terminate hearing.

& was

defaulted

WAR:;

WARD:;

Default

Warrant

PVH :; probation

revocation

A TRUE COpy ATTEST:

lC:RK-MAGISTRATE!

ASST CLERK

\ TOTAL NO. OF PAGES

'ON

(DATE)

Vers,on 20 - '''06 OalefTime Printed08_06.201013:0903

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MIlIv'lur-JITION WiTHOUT FID CARD, POSSESS c269 SiO(h)('l)

)ISPOSITION METHOD

I
COSTS RESTITUTION
VNV

~
OUI 32'0 FEE OUI V:CTIMSASMT

FIf,EiASSESSMENT

SURFINE

JGuilty Plea or 0 AdmisSion to Suflicient Facts 3ccepled after COllOQUY and 278 9290 warning ] Bench Trial ]Jury T"al ] Dismissed upon' o Requesl of Commonwealth o Requesl of Defendant

HEAD INJURYASMT

ASSESSMENT

BATTERER'SFEE

OTHER

SENTENCE OR OTHER DISPOSITION o Sufflctent fa CiSfound bul continued without a finding unlil:

0 Request of Viclim

o Defendanl placed on probation unlil: o Risk/Need or OUI

Failure to prosecute

o Administrative

Supervision

o Other:

o Defendant placed on pretrial probation (276 987) unlil: oTo be dismissed if court costs / restitution paid by:

0 Filed with Defendant's consent

o Nolle ProsequI o Decriminalized (277 970 C)

FINAL DISPOSITION FINDING o Guilly o Responsible o Probable Cause COUNT/ OFFENSE

JUDGE

DATE

o Not Guilty o Not Responsible o No Probable Cause

0 Dismissed on recommendation of Probalion Dept. 0 Probation terminaled: defendant discharged 0 Sentence or disposition revoked (see cont'd page)
rlSPOSITION DATE ANDJUDGE

DRUG, POSSESS TO DISTRIB CLASS D c94C S32C(a}

FINE/ASSESSMENT SURFINE COSTS :lUI 9240 FEE OUI VICTIMS ASMT

DISPOSITION METHOD oGuilty Plea or 0 Admission to Sufficient Facts accepted after colloquy and 278 929D warning OBenchTrial oJury Tnal o Dismissed upon o Request of Commonwealth

HEAD INJURYASMT

RESTITUTION

VNV

ASSESSMENT

BATTERER'SFEE

OTHER

SENTENCE OR OTHER DISPOSITION o Sufficient facts found but continued without a finding until:

0 Request of Victim

o Defendant placed on probation until:

o Request
OOlher:

of Defendant

o Failure to prosecute

o Risk/Need

or OUI

o Adminislralive

Supervision

o Defendanl placed on pretrial probation (276 987) unlii:

o Filed with Defendant's consent o Nolle prosequI o Decriminalized (277 !i70 C)

FiNDING oGuil!y

o To be dismissed if court costs / restitution paid by:

FINAL DISPOSITION

JUDGE

DATE

o Not Guilly
o Nol Responsible

o Responsible
o Probable Cause COUNTI OFFENSE

0 Dismissed on recommendation of Probation Dept. 0 Probation terminaled: defendant discharged 0 Sentence or disposition revoked (see cont'd page)
' rSPOSITION DATE AND JUDGE

o No Probable

Cause

DRUG, POSSESS CLASS B c94C S34

FINE/ASSESSMENT SURFINE COSTS OUI 924D FEE OUI VICTIMS ASMT

DISPOSITION METHOD o Guilty Plea or 0 Admission to Sufficient Facts accepted after colloquy and 278 9290 warning o Bench Trial oJury Trial o Dismissed upon: o Request of Commonweallh o Request of Defendant Other:

HEAD INJURYASMT

RESTITUTION

VNV

ASSESSMENT

BATIERER'S FEE

OTHER

SENTENCE OR OTHER DISPOSITION

o Sufficient
0 Request of Victim

facts found but continued without a finding until: placed on probation until: or OUI

o Defendant

o Failure to prosecute

o Risk/Need o Defendant

o Adminislrative

Supervision

placed on pretrial probalion (276 987) until:

0 Filed with Defendant's consent 0 Nolle Prosequi

o DeCriminalized (277 970 C)

oTo be dismissed if court costs / restitution paid by:

FINAL DISPOSITION FINDING o Guilly o Responsible o Probable Cause

OalelTime Pr,nted 08_06_2010 13:09:03

JUDGE

DATE

o Not Guiily o Not Responsible o No Probable Cause

0 Dismissed on recommendation of Probation Dept. 0 Probation lerminaled: defendant discharged 0 Sentence or disposilion revoked (see cont'd page)
.

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FAT:: &

Discovery

compliance

& jury seleclion SEN

BTR

::

Bench trial

JTR

=::

Jury trial

PCH::

Probable

cause hearing
PRO::

MOT::

Motion hearing
scheduled

First appearance

in jury session

Sentencing

CWF

:: Continuance-without-finding

scheduled

to terminate

Probation

SRE to terminate

S'a'

u.s revIew

'

DFTA

= Delendan'

lailed to appear

was delaulled

WAR

= Warran'

Issued

WARD

= Delaull

warran' 'ssued

WR

= Warrant

or detaull warrant ,ecalled

PVH

probation revocation hearing,

VersIon

2.0.

111u6

Dale/Time Printed: 08_06_201013:09:03

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C.A.9

COMM ON WEAL TH C F 1v1/.:= S/\.CHUSETTS SUFFOLK,

S3.

Boston Municipal C::mrt Dorchester Division No. 1007 CR 004L\.27

)

COMMONWEALTH OF MASSACHUSETTS
v.

)
)

)
) )

Anthony Craan, Defendant

MOTION

TO SUPPRESS EVIDENCE

Now comes the Defendant, in the above entitled matter and moves this Honorable Court. to enter an order suppressing as evidence at trial or hearing on the above complaint the following items seized by officers ofthe Commonwealth:

1.

Marijuana

2, 3 blue pills: Ecstasy 3. bullets As grounds therefore, Defendant asserts that sucb warrantless evidence violated Defendant's United States Constitution seIzure of the

rights under the Fourtb and Fourteenth Amendments to. the and Article Fourteen of the Declaration of Rights of the

Constitution of the Commonwealth.

.r.'~r."',~_

Defe,li1<1ant,\, By l~is At~ney,

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.Leon P J. Drysdale, Esq.' 2038 Dorchester Avenue Dorchester, MA. 02124 617-825-6483

1 certify that I mailed a copy of this tvlotion, postage prepaid, to the District Attorney's Office of Boston l'Aunicipal Court, Dor,ch-e,ster Division on
\.

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2010.

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C.A.

10

COJVIlvl01'-T\VEALTH OF MASSACHUSETTS SUfFOLK, ss. Boston Municipal Court Dorchester Division No. 1007 CR 004427
) ) )

COMMONWEALTH OF MASSACHUSETTS
v.

)
)

Anthony Craan, Defendant

AFJFIDA VIl' IN SUPPORT I, Anthony~raan,

OF MOTION 1'0 SUPPRESS

do state the following is true to the best of my knowledge and belief: EVIDENCE

2.
')

J.

-'-.
~"':

,1

Without my permission or consent, the police searched my person. The police questioned me without advising me of my rights. The pohce did not show me a warrant to search me. STATEMENTS

6. I was in custody. 7. The police did not give me my Miranda Rights before they questioned me. ALSO 8. This paper does not contain everything that happened. It is filed only to preserve my Constitutional, statuary and common law rights. ' ,; .. . Signed mi~er4kkiFl:sJkqll~llaHles}of Perjury [:IV~\,;.t;~0itJj~Y~{j/~#0i;-v-/' --- -' Anthony &Iraan , Dated: _~~]~:_L~:.I certify that I mailed the above Affidavit to the DistricJ;,Attorney' s Office of Boston Municipal Comi, Dorchester Division, postage prepqlcl on ",v ;:.,-) ;';- 2010.
\ . "-l:'::~~ , ,

~\~~~'~'~.':=~~~~:o:~,~=:~~~_. _ ...
Leon PJ. Drysdale, Esq.

C.A.

11

i\ly nar-D.e is Anthony

Cr2',fH1

and I 2rn the defend",nt

I was stopped by the Massachusetts State Police in the early moming hours of June 2010, on Ga11ivan Blvd, Dorchester. Dorceus.

i j,

My front seat passenger, and only passenger, was Jaym"

I immediately asked the officer 'Nhy I vv'asstopped and he replied that he smelled marijuana in the car. I knew at that point that I Vias under suspicion for criminal activity. Befme I was further instructed to do anything the officer asked me if there were any drugs in the car. I replied in the affirmative to his questioning. I believe the officer who told me he smelled marijuana in my car \-vasin no position to smeii marijuana from my car because he was dearly in front of my car when he made that statement; he had not been alongside my car where he could have conceivably smelled marijuana before he made that statement to me. Aftcr I 'yvasunder suspicion and I was directed to pull ri~ycar over to the side ofthc road I believed I v.,'as not free to leave the scene. Before the officer questioned me about the marijuana I had not bee informed that I had the right to remain silent, i.e., I had not been read my IVIir<llida
'Narnings.

+:fileer T rl . After I told the Oi: _h 1 au marijUana In the car the

passe.nger to get out of the car. Vile were Lhen handcuffed.

,+:. Oillcer

mstructe d me and my

I believe the officer who elicited my incfiminating state from me violated my right to rernain silent in this circumstance.

Antheny email.'

C.A. 12

COMMONWEALTH SUFFOLK,
SS.

OF MASSACHUSETTS Boston Municipai Court Dorchester Division 10 CR 004427

COlvlMONWEALTH OF ) MASSACHUSETTS )
v.

) ) )

Anthony Craan, Defendant

)
)

MOTION FOR RECONSIDERA TilON OF JUDGE'S DENJIAIL OF DEFENDANT'S MOTION TO SUPPRESS

Now comes the Defendant in the above-captioned matter and moves this

Honorable Court re-consider- it's denial of Defendant's Motion to Suppress that was held by the court on February 25, 2011, Justice Miller sitting. The reason for this is that the Supreme Judicial Court of Massachusetts
Commonwealth

decided

v. Cruz (SJC-10738) on April 19, 2011 and this decislon has a direct

bearing on this case. The J,i~fenc\ant i" By h\s Att,~iTIey,

"

"' ...

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Leon PI Drysdale, Esq. 2038 Dorchester Avenue Dorchester, MA. 02124 671-825-6483

"

I certify that I mailed a copy of this Motion to the District,Att-qrney's Boston Municipal Court, Dorchester Division, postage prepaid, on / ~ _.A~-'fL
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Office at , 2011.

-------_._--~ Leon PI. Drysdale, Esq ..

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C.A.

13

COMMONWEALTH

OF MASSACHUSETTS Boston Municipal Court Dorchester Division 10 CR 004427

SUFFOLK.,

ss.

COMMONWEALTH OF ) MASSACHUSETTS )
v.

) ) )

) Anthony Craan, Defendant

) )

MOTION FOR REHEARING AND/OR RE-OPENING OF DEFENDANT'S MOTION 1'0 SUPPRESS

Now comes

the Defendant

m the above-captioned

matter

and moves

this

Honorable Court to re-hear or re-open Defendant's Motion to Suppress that ws held by the court on February 25, 2011, Justice Miller sitting. The reason for this is that the Supreme Judicial Court of Massachusetts decided Commonwealth v Cruz (SJC-10738) on April 19, 2011 and this decision has a direct bearing on this case.

The If~fend~t By His f\-ttor~ey,

~!

, ,

'. ~ .. -_.'/

Leon PJ .Drysdale, Esq. 2038 Dorchester Avenue Dorchester, MA. 02124 671-825-6483

",

. I certify that I mailed a copy ~f .t~is Motion to the ?iStli~t Att~}'ney' ~ Oftlce at 'Boston Municipal Court, Dorchester DlVlslOn, postage prepmd, o~ /1 \",..,; '''-~' 2011.
\.

",

Leon PJ. Drysdale, Esq.

_.~~0'''-' ,.,./.,

./

C.A.

14

COMMONWEALTH SUFFOLK, ss.

OF MASSACHUSETTS BOSTON MUNICIPAL COURT DORCHESTER DIVISI01\.1 No.1007CR004427

COMMONWEALTH
v.

ANTHONY CRAAN

COMMONWEALTIHPS OPPOSITION TO THE DEFENDANT'S MOTION FOR RECONSIIDERA Tl[ON OF THE lllENIIAJLOF THE DEFENDANT'S MOTION TO SUPPRESS

On February 25, 2011, Anthony Craan's (hereinafter "the defendant") motion to suppress 'evidence seized from his vehicle on June 11, 2010 was denied afterafull . evidentiary hearing by the Honorable Justice Rosalind Miller. The defendant attempted to tender a plea for the court's consideration on May 5,2011. The tender was rejected by

the court due to the Supreme Judicial Court's recent decision in -------"--'--~=, Commonwealth v. Cruz 459 Mass. 459 (2011), and a hearing on the defendant's motion to reconsider was scheduled for May 19, 2011. After hearing, the matter was then scheduled for a decision on June 17, 2011. On that date, the Commonwealth requested a new hearing to be heard on

a final issue not raised at the hearing

on May 19

th

The Commonwealth submits this

memorandum oflaw to supplement its response to the defendant's motion to reconsider the denial of his motion to suppress.

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C.A.

15

lFAC1fS

On June 11,2010 at ilpproximat~ly 1:30 am, I\!lassachusetts State Trooper Scott Irish ("Trooper Irish") vv'as .working a sobriety checkpoint on Gallivan Boulevard in Dorchester. He was acting as the screening officer.
1

Trooper Irish made contact with the Immediately upon making contact,

defendant, who was operating a gray Mercedes-Benz.

with the defendant's vehicle, Trooper Irish could smell the strong odor of fresh un-bu.rnt marijuana coming from the passenger corp.partment. Based on this odor, Trooper Irish had the defendant pull into the designated screening area. Once in the designated screening area, Trooper Irish obtained identification from both the driver, Anthony Craan, and the passenger, Jayar Saint Dorceus. While conversing with the defendant, Trooper Irish informed him that he could smell marijuana in the vehicle. The defendant stated that he smoked "weed" earlier. Trooper Irish informed the defendant that it was not burnt marijuana that he could smell, but instead fresh un-burnt marijuana. The defendant was asked ifthete was any marijuana in the car. He responded "yeah," before reaching over, opening the glove compartment, and exposing a small plastic bag of marijuana. The defendant and his passenger were then removed from the vehicle and pat frisked. Nothing was found on either occupant's person. With the assistance of Trooper John McCarthy, the vehicle was searched. Two additional plastic baggies of marijuana, one empty glassine bag, and a plastic baggie containing three ecstasy pills were recovered from the center console. A grinder was recovered from the storage shelf of the driver's side door. An additional glassine baggie containing a small amount of marijuana was

The screening officer's function is to make contact with the operators' vehicles entering the checkpoint and determine whether or not to have them pull off into the designated area for field sobriety testing.

C.A.

16

recovered from the floor behind the passenget seat. Four rounds of loose ammunitior:iwere recovered from the trunk. The Commonv'lealth asks this Court to deny the defendant's motion because 1) the holding of Commonwealth v. Cruz does not affect the outcome ofthe defendant's motion to suppress; 2) the fact that the stop and exit order took place at a sobriety checkpoint', coupled with the odor of marijuana, take this case out of the ambit of Cruz; 3) notwithstanding Cruz, the troopers had probable cause to search the entire vehicle for marijuanabased on Federal Law; and, 4) the seoIch of the defendant's vehicle was valid

as incident to lawful arrest?

ARGUMENT I. THE DEFENDANT'S MOTION TO RECONSIDER THE DENIAL OF HIS MOTION TO SUPPRESS SHOULD BE DENIED BECAUSE UNDER FEDERAL LAW, POSSESSION OF MARiJUANA IN ANY AMOUNT IS IlLLJEGALAND JP'ROVJIDES THE NECESSARY PROBABLE CAUSE TO JUSTIFY AND lEJall ORDER FROM A MOTOR VEHICLE AND SUBSEQUENT SEARCH OF THAT VEHICLE.

There are three possible justifications for an exit order, during a motor vehicle stop: officer safety; reasonable suspicion, based on articulable facts, that the defendant was engaged in criminal activity; or, pragmatic reasons such as the performance of a warrantless search under the automobile exception. Cruz, 459 at 466-467. Here, two justifications are implicated - so-called reasonable articulable suspicion and a probable cause search performed pursuant to the long recognized automobile exception to the warrant requirement.

Only the Commonwealth's third and fourth arguments are addressed in this memorandum,

as the previous

. ground.s were raised and argued at the hearing on May 19, 2011 ..

C.A.

17

Under Federal Law, simple possession of marijuana is illegal. 21 U.S.c. (a). "It shall be unlawful for any I.Jersonknowingly or intentionally to possess a

84.0:

controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except otherwise authorized by this title or title III. Id. Absent a prior drug conviction under Federal or State law, an individual may be sentenced to up to one year in prison and shall pay a fine of no less than $1,000 or both. 1d. "[I]t is well established under federal law a conviction will be upheld where Any measurable amount of Any
th

controlled substance is found." United States v. Harold, 588 F.2d 1136, 1143 (5 Cir. 1979). Even an amount so small as to be categorized as a trace amount or scintilla is enough. 1d. State agency cooperation with federal agencies is mandated "in discharging their responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances." M.G.L. ch 94C,

S 42.

Here, there was both reasonable suspicion and probable cause to believe that Mr. Craan violated 21 U.S.c.

S 844.

When informed by Trooper Irish that the odor of

marijuana he smelled was un-burnt, Mr. Craan opened the glove compartment, exposing a bag a marijuana. At that point, Trooper Irish possessed both reasonable suspicion that the defendant was engaged in criminal activity and probable cause that there was illegal contraband in his car. This all occurred prior to the exit order. There was no testimony at the motion to suppress regarding whether or not Trooper Irish believed Mr. Craan possessed or would possess over an ounce of marijuana. Equally important, was the fact that Trooper Irish had no knowledge of whether the defendant would be prosecuted in state or federal court for any contraband

C.A.

18

found in his vehicle. However, this is immaterial to the probable cause detenninatiorl

as

it is the same in federal and state cOUli. See Commonwealth v. Cast, 407 Mass. g91, 901 (1990) guoting Carroll v. United States, 267 U.S. 132,149 (1925) (warrantless search of a motor vehicle pursuant to the automobile exception when police have "probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining awarrant impracticable."). "Probable

cause is a flexible, common-sense standard, [which] merely requires that the facts available to the officer would warrant a man of reasonable caution in the beliefthat certain items may be contraband ... it does not demand any showing that such a belief be correct or more likely true than false." Commonwealth v. Skea, 18 Mass. App. Ct. 685, 689 (1984). Additionally, "[it] is well settled that in federal prosecutions evidence admissible under federal law cannot be excluded because it would be inadmissible under state law." United States v. Quinones, 758 F. 2d 40,43 (1 Cir. 1985). See also United ~tates v. One Parcel of Real Property, 873F.2d 7 (l
st st

Cir. 1989) (evidence seized by state

police without any federal participation and in violation of state law pertaining to execution qfvvarrants at night was admissible in federal prosecution where, under federal law, ptClperty was fully subject to search at that hour).
"l

While marijuana may be punishable by a civil fine, See G.L. ch. 94C, ~~ 32L32N, it is still illegal in Massachusetts. Cruz, 459 at 473. Contrast Commonwealth v.

Landry, 438 Mass. 206,210 (2002) ("Possessing a hypodermic needle is not necessarily a crime"; licensed physicians and private citizens "may lawfully possess hypodermic needles"); Commonwealth v. Alvarado, 423 Mass. 266,270 (1996) ("carrying a concealed weapon is not, standing alone, an indication that criminal conduct has occuned

----------------~---

C.A.

19

or is contemplated");

Comrnonwealth v, Tooie, 389 Mass. 159, 163 (1923) ("carrying a Unlike firearms and hypodermic

,45 caliber revolver is not necessarily a crirfle"),

needles, marijuana is illegal under both state and federal law. Therefore, Trooper Irish had probable cause to search for more contraband. Probable cause is determined atthe

j
',I

moment of the event. See Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980) (probable cause determination at "the moment of arrest", not in hindsight). See also Commonwealth v. Cast, 407 Mass. 891,896 (1990) (independent police corroboration may compensate for deficiencies in either or both of the Agui1ar,Spinelli prongs). Courts cannot view the probable cause determination in hindsight based on the amount of marijuana recovered or even seen to predicate the initial search. This would create an unworkable standard for law enforcement. To require a police officer to have probable cause that there is more than an ounce of marijuana in a vehicle before conducting a vehicle search would ignore the substance's illegality under the laws of the United States. After all, a police officer is not to ignore what he smells, sees, or hears during a motor vehicle stop. Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996). Accordingly, Trooper Irish was justified in conducting a search of the defendant's car. U. TROOPER IRISH HAJJ) PROBABLE CAUSE TO ARREST T1HDE DEFENDANT FOR POSSESS:n:ON OF MAJiUJJUANA AN]) THE SUBSEQUENT VEHliCLE SEARCH WAS A VAJUJJ)SEARCH INCIDENT TO LAWFUL ARREST.

Once the bag of marijuana was shown to Trooper Irish, he had probable cause to arrest the defendant. See M.G.L. ch. 94C, ~ 41 (2011) ("A police officer shall have the authority to arrest without a warrant: (a) any person committing in his presence any offense set forth in this chapter ... ") (emphasis added): In Massachusetts, possession of

C.A.

20

marijuana, even under one ounce, is still an offense under chapter 9trc. See M.G.L. ch 94C,

S~ 32L-l'I.

Therefore, Trooper Irish could have arrested Mr. Craan once marijuana

was seen in the vehicle. A search incident to arrest may be conducted prior to the arrest of the defendant. Commonwealth v. Alvarado, 420 Mass. 542 (1995). A search incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings. M.G.L. eh. 276, vehicle.

1. The scope of the search may extend to the interior of a motor v.

See New York v. Belton, 453 U.S. 454, 460 (1981); Commonwealth

Barganzone, 390 Mass. 326,351(1983).

"

While the defendant was not placed under arrest

prior to the search of his motor vehicle, the search was permissible as incident to lawful arrest for an offense outlined under M.G.L. ch 94C. Therefore, the defendant's should be denied. CONCLUSiON Based on the foregoing reasons, the Commonwealth respectfully requests that this Court deny the defendant's Motion. motion

--:-,-- .. .::::::::=-::--

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C.A.

21

Respectfully submitted FOR THE COMMONWEALTH,

DANIEL F. CONLEY District Attorney F6tfh'e Suffolk District ~ ,,',

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Dated: July 21, 2011

Erik Bennett Assistant District Attorney 50 Meridian Street, Suite 3 East Boston, MA 02128 (617) 567-8650

C.A.

22

1, the undersi gned, do hereby certify under the pains and penalties of perjury that I have today mad~ service on the defendant by directing that a copy of the attached motion be served in hand, to his attorney: Leon Dry,sc6i~/ _! !( _,_/:.-:-~~/ ,,".-/-1-~

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~Erik Bennett Assistant District Attorney Dated: July 21, 2011

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C.A.

23

BOSTON MlJNICIPAL COURT DORCHESTER DIVISION DKT NO.: 1007CR004427 COMMONWEALTH

v.

ANTHONY CRAAN COMMONWEALTH'S REQUEST FOR WRITTEN FINDINGS AND RULINGS

Now comes the Commonwealth in the above-entitled matters and respectfully requests that this Honorable Cou~t issue written findings of fact and wri~ten rulings of law of the Order (Miller, J.) dated October 19,2011, allowi~g the Defendant's Motions To Suppress. The Commonwealth states that such findings and rulings are n~cessary to permit the Commonwealth to prosecute its appeal from that Order pursuant to Mass. R. App. P. 3(a), Mass. R. Crim. P. IS, and M.G.L.ch. 278, 928E. See Commonwealth v. Hernandez, 421 Mass. 272,

278-80 (1995) (vacating order dismissing complaint where trial judge made neither findings of fact nor rulings oflaw, and remanded to trial court for such findings and rulings).
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C.A.

24

\Iv'HEREFORE, the Commonwealth respectfully requests that this Court issue a \lvTit:cen decision explaining the grounds for its decision on October 19,2011. Respectfully Submitted For the Commonwealth,

by:

tt~

~.

DATED:

----

-------=====----_-:-" ----

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C.A.

25

COMMONWEALTH SUFFOLK ss,

OF MASSACHUSETTS BOSTON l\IfUNICIPAL COURT DORCHESTER DIVISION DOCKET NO. l007CR004A27

COMMONWEALTH

v.
ANTHONY CRAAN

COMMONWEAL

TlHl'S NOTICE OF APPEAL

The Commonwealth of Massachusetts, pursuant to Mass. R. Crim. P. 15 and G.L. c. 278, ~ 28E, hereby respectfully appeals the judgment of this Court, Miller, J., entered on September 7, 2011, allowing the Defendant's Motion to Suppress Evidence Seized Without a Warrant. Respectfully submitted For the Commonwealth, DANIEL F. CONLEY District Attorney For tJ(Sy~ District
j

/
Dated: October 19,2011
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-----~--------Do"i-chester, \

retc en P. Sherwood . ant District Attorney Dorchester District Court 510 WashingtQn-Street-----~--,--. MA 02124 (617) 287-1195 ext. 114

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~ C.A. 26

~~~-

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CERTIFICATE OF SERVICE

I, Gretchen P. Sherwood, Assistant District Attorney ror the Commonwealth, do hereby certify that I have served a copy of the Commonwealth's foregoing Notice of Appeal in hand on this date to Defense Counsel Leon Drys~al"l

.
Date: October 19,2011

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/Gre / en P. Sherwood i.(..ssi ant District Attorney orchester District Court 510 Washington Street Dorchester, MA 02124 (617) 287~1195 ext. 114

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}
Mass Appel late Courts - Public Case 1ntorrrlatlOn C.A. 27

SUPREME JUDICIAL COURT for Suffolk County Case Docket

COMMONWEALTH VS. ANTHONY CRAAN SJ-2011-0509 .------------------------_._-.--_._---------_._-------------~-_._------\ CASE HEADER \Case Status \Nature \sub-Nature \TC Ruling \SJ Ruling iPet Role BeloW \Lower Court I-INVOLVED PARTY \ Commonwealth Plaintiff in lower court Boston Municipal, Central Div. Interlocutory appeal allowed Status Date Entry Date Single Justice TC Ruling Date TC Number Full Ct Number Lower Ct Judge .__ ~~sali~ Hens~n Mille~ __ 03/12/2012 11/25/2011\ Botsford, J. 10/19/2011 ----------_._-

---'-1
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Lv for interloc appeal Mot to Suppress Motto Suppress allowed

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ATTORNEY APPEARANCE

-------.--.-----------1

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Zachary Hillman, Assistant District Attorney

Plaintiff/Pelilioner __ .. _. Leon P. Drysdale, Esquire ~_e. __ o_n_p_._D_ry_sd_a_l_e_,_ E_S_q. __ u_ir_e __ .__.__ . DOCKET EN'TRIES ----------...---------- -------

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I

Anthony Craan I DefendantlReSponde~t_-

r-----.~--_.---._-._.. ---------->-----.
\Entry Date Paper 111/25/2011
!

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\

Entry Text Case entered. Commonwealth's Mass. R. Crim. P. 15(A)(2) and G.L. c. 278, s. 28E Application Requesting that This Court Grant Leave to Appeal an Order of the Boston Municipal Court, Central Division, Suppressing a Witness's Identification of the Defendant at Trial filed by ADA Zachary Hillman with certificate of service. Defendant's Motion to Dismiss filed by Atty Leon Drysdale with certificate of service and attached Exhibits A-B, (02/01/12 Per the within, Motion is DENIED WITHOUT HEARING. By the Court. (Spina, J.)) Affidavit of Defendant's Attorney filed. Opposition pursuant to Mass. RAP. 11 (c), to Commonwealth's Application for Leave to pursue Interlocutory Appeal filed by Atty Leon Drysdale with certificate of service. Status Report with attached Certificate of Service filed by Assistant District Attorney

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Zachary Hilman. Notice to counsel/parties, regarding paper #2 filed. Commonwealth's Second Status Report with attached Certificate of Service filed by Assistant District Attorney Zachary Hillman . Memorandum In Support Of Commonwealth's Mass R. Crim. P. 15(A) (2) And G.L. C. 278,1 S 28E Application Requesting That This Court Grant Leave To. Appeal An Order Of The Boston Municipal Court, Dorchester Division, Granting The Defendant's Motion To Suppress Evidence with Attachments 1-4 and Certificate of Service filed by ADA Zachary Hillman. ' Under advisement. (Botsford,J.). ORDER: Interlocutory appeal allowed; to Appeals Court. (Botsford, J.)

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103/07/2012 103/12/2012 #9

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11atecourts.org/display_docket.php?dno=SJ-20 11-0509&pf=y

8/9/2012

CERTIFICATION

hereby

certify

that,

to

the

best

ot

my

knowledge,

this brief

complies

with the rules of court including those

that pertain

to the filing in Mass. R.

of briefs, App. P.

rules specified

'1

6(k).

~/
cha
~ ssistant

Hillman District

Attorney