COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

CASE NO.: 2012-P-0534

COMMONWEALTH OF MASSACHUSETTS Appellant v. ANTHONY CRAAN Defendant-Appellee

ON APPEAL FROM A JUDGMENT OF THE BOSTON MUNICIPAL COURT-DORCHESTER DIVISION

BRIEF OF THE DEFENDANT-APPELLEE

Brian J. Anderson Cant ant Law Offices, P.C. 141 Tremont Street, 4th Floor Boston, MA 02111 (617) 227-8383 brian@contant-law.com BBO#: 670871

TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT I. OF ISSUES i iv 1

Whether the trial judge correctly suppressed the evidence where the trooper lacked permissible grounds to order Mr. Craan out of his vehicle and subsequently search it based only on: (1) the smell of unburned marijuana coming from the interior of the vehicle and (2) the observation of a small quantity of marijuana inside the vehicle ...1 Whether the trooper lacked probable cause to believe that Mr. Craan was operating under the influence of marijuana where Mr. Craan exhibited no characteristics of impairment and there was no evidence of consumption in the vehicle 1

II.

III. Whether the trooper could search Mr. Craan's vehicle based on violation of federal law where there was no evidence of a federal investigation or prosecution and Article 14 provides heightened protections against unlawful search and seizure as compared to the Fourth Amendment 1 STATEMENT STATEMENT A. B. OF THE CASE OF THE FACTS Judge's Judge's Findings Rul ing of Fact 2
3

3 8 9 12

SUM~~RY OF THE ARGUMENT ARGUMENT

I.

The trial judge correctly suppressed the evidence because the trooper lacked permissible grounds to order Mr. Craan out of his vehicle and subsequently search it based only on: (1) the smell of unburned marijuana coming from the interior of the vehicle and (2) the observation of a small quantity of marijuana inside the vehicle 12 A. B. Legal Standard The trooper did not possess a reasonable fear for his safety or that of others to justify the exit order and search The trooper did not have reasonable suspicion based on articulable facts to believe that Mr. Craan was engaged in criminal activity 12

15

C.

19

D.

The trooper did not have probable cause to search the vehicle under the automobile exception because there was insufficient evidence that it contained a criminal amount of marijuana 22 The Article 14 protections pronounced in Cruz apply regardless of whether the smell of marijuana is burnt or unburned 27

E.

II.

The trooper did not have probable cause to believe that Mr. Craan was operating under the influence of marijuana because he exhibited no characteristics of impairment and there was no evidence of consumption in the vehicle 30

III. The trooper could not search Mr. Craan's vehicle based on violation of federal law because there was no evidence of a federal investigation or prosecution and Article 14 provides heightened
ii

protections as compared CONCLUSION ADDENDUM U.S. Const. Mass. Const.

against unlawful search to the Fourth Amendment

and seizure 33 39 40

amend. IV Pt. 1, art. XlV ::

40 40 40 .41 .41 .43

G.L. c. 90, ~ 24(1)(a)(1) G.L. c. 94C, ~ 32C (a) G.L. c. 94C, ~ 32L. G.L. c. 94C, ~ 34. G.L. c. 269, ~ 10 (h) (1) G.L. c. 276, ~ 2B.

.46 .46 1115 47

Commonwealth v. Valle, 80 Mass.App.Ct. (2011) [Rule 1:28 Decision]

Memorandum from Department of Justice Deputy Attorney General David W. Ogden on Investigations and Prosecutions in States Authorizing Medical Use of Marijuana, to United States Attorneys (Oct. 19, 2009) 50 CERTIFICATE OF COMPLIANCE PURSUANT TO MASS.R.APP.P. WITH RULES OF COURT Rule 16(k)

53

iii

TABLE OF AUTHORITIES Arkansas v. Sanders, 442 U.S. 753 (1979) 12 31 266 266 (1977) ....15,16 (1996) ...4 n.3 20

Beck v. Ohio, 379 U.S. 89 (1964) Commonwealth Commonwealth Commonwealth Commonwealth Commonwealth Commonwealth v. Almeida, v. Alvarado, v. Bacon, 373 Mass. 423 Mass. 642

381 Mass.

(1980)

v. Bostock,

450 Mass. 891

616

(2008) ....19-20 22,23

v. Cast, 407 Mass.

(1990)

v. Cruz, 459 Mass. 459

(2011) ..3,14,15-16 18,19,20,21,22 23,24,25,26,27 28,29,30,35,36 164 21,24,29

Commonwealth (2012) Commonwealth (2012) Commonwealth Commonwealth Commonwealth Commonwealth Commonwealth Commonwealth (2012)

v. Damon,

82 Mass.App.Ct.

v. Daniel,

81 Mass.App.Ct.

306 24,25

v. Fraser, v. Garden,

410 Mass.

541

(1991) ........ 16 (2008) ...... 27,28 658 334 (1999) ..15-16 (2007) ..4 n.3

451 Mass. 43 429 Mass.

v. Gonsalves, v. Isaiah

I. , 448 Mass. 461 Mass. 44

v. Johnson,

(2011) ........ 14 803 14,19,21,24 27,29,36,38

v. Lobo, 82 Mass.App.Ct.

Commonwealth Commonwealth Commonwealth

v. Loughlin, v. Hason, v. Murphy,

385 Mass. 169

60 (1982)
(1982)

14 23

387 Mass. 454 Mass. iv

318

(2009) ....13 n.4

Commonwealth Commonwealth (1992) Commonwealth (1991) Commonwealth (1992) Commonwealth Commonwealth Commonwealth Commonwealth Commonwealth

v. O'Connor, v. Rivera,

420 Mass.

630

(1995)

31

33 Mass. App. Ct. 311 16,17

v. Rivet,

30 Mass. App. Ct. 973 31

v. Roviaro, " .'" v. Silva,

32 Mass. App. Ct. 956 "

31

366 Mass. 402 393 Mass.

(1974) ...... 19,20 127 (1984) ...... 16

v. Sumerlin, v. Thomas, v. Trumble, v. Upton

429 Mass. 403 396 Mass.

(1999) ..... 4 n.3

81 (1985) .... 13 n.4 363 (1985) ...34-35 1115 21,24,29,47-49

II, 394 Mass.

Commonwealth v. Valle, 80 Mass.App.Ct. (2011) [Rule 1:28 Decision] Commonwealth (1996)

v. Va Meng Joe, 40 Mass. App. Ct. 499 16 States, 389 U.S. 347 (1967) 13 13 (1997) (1983) (1977) 36 16 16,36 13 n.4,15

Katz v. United

Mapp v. Ohio, 367 U.S. 643 (1961) Maryland Michigan v. Wilson, 519 U.S. 408

v. Long, 463 U.S. 1032 v. Mimms,

Pennsylvania

434 U.S. 106

Terry v. Ohio, 392 U.S. 1 (1968)

United States v. Lewis, 816 F. Supp. 789 (D. Ma ss. 1993) ..................................... Whiteley v. Warden, 401 U.S. 560
(1971)

13 23

G.L. c. 90, Si 24(1) (a) (1) v

31,40-41

G.L. c. 94C, ~ 32C (a) G.L. c. 94C, ~ 32L.

I
I

.2,41 .9,11,20,21,24 27,28,29,35 37 n.7,38,41-43 .2,43-45 .2,46 .23,46 11,14,33,36,38,39 11,33,36,38,39

G.L. c. 94C, ~ 34. G.L. c. 269, ~ 10(h) (1) G.L. c. 276, ~ 2B. Mass. Const. U.S. Const. Pt. 1, art. XlV amend. IV

Memorandum from Department of Justice Deputy Attorney General David W. Ogden on Investigations and Prosecutions in States Authorizing Medical Use of Marijuana, to United States Attorneys (Oct. 19,2009) 37-38,50-52 State Police General Order TRF-15 13 n.4

Joseph A. Grasso, Jr. & Christine M. McEvoy, Suppression Matters Under Massachusetts Law, ~ 1-11 (2009-2010 ed.) 16-17,34-35

vi

STATEMENT

OF THE ISSUES

I.

Whether the trial judge correctly suppressed the evidence where the trooper lacked permissible

grounds to order Mr. Craan out of his vehicle and subsequently smell of search it based marijuana only on: (1) the from the

unburned

coming

interior of the vehicle and of a small quantity of

(2) the observation inside the

marijuana

vehicle.

II.

Whether believe

the

trooper

lacked

probable

cause

to the

that Mr.

Craan was operating under

influence of marijuana where Mr. Craan exhibited no characteristics of impairment and there was no evidence of consumption in the vehicle.

III. Whether

the

trooper

could

search

Mr.

Craan's

vehicle based on violation of federal law where there was no evidence of a federal investigation or prosecution and Article 14 provides heightened protections against unlawful search and seizure

as compared to the Fourth Amendment.

STATEMENT OF THE CASE This is the Commonwealth's appeal

of

the

allowance of

the defendant/appellee, Anthony

Craan's

(hereinafter "Mr. Craan") motion to suppress evidence. On August 6, 2010, of a the complaint Boston issued Municipal in the

Dorchester

Division

Court

charging Mr. Craan with: 1) possession of ammunition without an FID card in violation of G.L. c. 269, ~

10 (h)(1); 2) possession of a class D substance with the intent to distribute in violation of G.L. c. 94C, ~ 32C(a), and; 3) possession of a class B substance in violation of G.L. c. 94C, ~ 34 (C.A. 1)1. On February 25, 2011, there was a hearing on Mr. Craan's Police Motion Trooper to Suppress. Irish Massachusetts (hereinafter State

Scott

"Trooper

Irish") was the only witness (C.A. 3). Miller

Judge Rosalind

(hereinafter "Judge") denied Mr. Craan's motion

to suppress evidence at the conclusion of the hearing

(C.A. 4).

Record references are as follows: Commonwealth's Brief will be (C.B. [page]); Commonwealth's Appendix will be (C.A. [page]); Appellee's Addendum will be (A.A. [page]); and transcripts will be (Tr. [date]:[page])
2

On

May

12,

2011, of

Mr.

Craan

filed for

Motion

for

Reconsideration Motion to

Judge's and

Denial

Defendant's and/or

Suppress

a Motion Motion 459

for Rehearing to Suppress 459

Re-Opening of had Court

of Defendant's v. been Cruz,

in light which

Commonwealth recently and was

Mass. by the

(2011),

decided

Supreme

Judicial case

directly

applicable

to Mr.

Craan's

(C.A. 5, 12, 13). On Craan's Judge wanted suppress remind May 19, 2011, for there was a hearing (C.A. Craan the 5) that motion in order on Mr. The she to to

motion told to the listen

reconsideration and Mr.

prosecution to the

recording

of

hearing herself

held on February of the facts

25, 2011 making

before

a decision

(Tr. 5/19/11: On made her

34). 16, 2011, the Judge Mr. said that she

November final

decision

allowing

Craan' s

motion

for reconsideration

and motion

to suppress 10) 2

on October

19, 2011 (C.A. 6) (Tr. 11/16/11:

The docket notes that the Judge initially allowed Mr. Craan's motion to reconsider and suppress on September 7, 2011 (C.A. 6) (Tr. 9/7/11: 3), however, there was confusion as to whether the Judge made her decision after giving the prosecution an opportunity to present oral argument in opposition (Tr. 10/19/11:
3

The
2012.

Commonwealth filed

its

brief

on August

13,

STATEMENT OF THE FACTS A. Judge's On Trooper assigned Dorchester consisted June Scott to Findings
11,

of Fact3
2010,

Massachusetts "Trooper

State Irish")

Police was in

Irish

(hereinafter

an OUI roadblock (Tr.

2/25/11:

on Gallivan
41)

Boulevard The

11-12,

roadblock in each

of

two

lanes,

with

three

troopers

8) . The Judge explained that she would listen to a recording of the hearing to determine when she made her final decision (Tr. 10/19/11: 8,9). Mr. Craan's trial court counsel obj ected to the judge's decision regarding the date the motion was actually allowed arguing that the prosecution's notice of appeal was not filed within the required time (Tr. 11/16/11: 10).

The judge made oral findings only and denied the Commonwealth's request for written finings (C.A. 4450) (R.A. 23-24). "Appellate courts may supplement a judge's findings of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony." Commonwealth v. Isaiah 1., 448 Mass. 334, 337 (2007); citing Commonwealth v. Alvarado, 423 Mass. 266, 268 n. 2 (1996). Further, '''motion judge's findings of fact are binding in the absence of clear error.'" Commonwealth v. Isaiah 1., 448 Mass. 334, 337 (2007); quoting, Commonwealth v. Thomas, 429 Mass.
403, 405 (1999). 4

1ane the

( Tr . 2 /25/11: duty of every

25).

Trooper Irish was fulfilling officer," his meaning that and he made

"screening vehicle

stopped

at

checkpoint

contact with the operator to determine if he/she was under the influence of alcohol (Tr. 2/25/11:
12, 41).

At around 1: 30 am, Mr. Craan approached the OUI roadblock driving a gray Mercedes
41) .

(Tr. 2/25/11: with Mr.

13,

Trooper

Irish

made

contact

Craan

through the open driver's side window and smelled a strong odor of unburned marijuana coming from within the vehicle (Tr. 2/25/11:
13, 25, 41).

Trooper Irish

then directed Mr. Craan to pull his vehicle into the screening
2/25/11:

area
13-14,

off
41).

to

the

side

of

the

road

(Tr.

Trooper Irish spoke with Mr. Craan again at the screening area and informed him that he could smell a strong order of marijuana in the vehicle (Tr. 2/25/11:
14, 41).

Trooper Irish then asked Mr. Craan if he had In the vehicle (Tr. 2/25/11:
15, 27,

any marijuana
41) .

Mr. Craan replied "yes" and stated that he and (Tr. 2/25/11:

his passenger had just smoked some weed

16, 41).

However, Trooper Irish reiterated that he

did

not

smell

burnt

marijuana, 2/25/11:

but 16,

rather 28, 42)

fresh, Mr. and glove

unburned Craan

marijuana

(Tr.

then acknowledged to open a

that he had some marijuana the small passenger plastic to Craan be did side bag

proceeded compartment, what

exposing Irish 28, 42)

containing (Tr. the

Trooper 17,

believed Mr.

marijuana not remove

2/25/11: plastic rather vantage driver's outside, illuminate also

bag from the passenger Trooper point Irish standing was able

side glove to the see

compartment, it from at his the

outside

vehicle

side door so

(Tr. 2/25/11: Irish

28, 42) his

It was dark flashlight There up at to were the Irish a

Trooper

used

the area

(Tr. 2/25/11: overhead

29, 42). set

generator-run (Tr.

lights 42).

checkpoint claimed quarter 2/25/11: of it that

2/25/11 :

29,

Trooper

it was

a sandwich

sized-baggie

"maybe

full of marijuana, 29). Trooper 29). then

if I recall did not

correctly" know the

(Tr. weight

Irish

(Tr. 2/25/11: Trooper Irish

removed

Mr.

Craan a pat any

and frisk

the Tr. or

passenger 2/25/11:

from 17,

the vehicle 42). He did

to perform not find

weapons

contraband
17, 42).

on

either

of

their

persons

(Tr.

2/25/11:

Trooper passenger 18). the

Irish

then

proceeded

to (Tr.

search 2/25/11:

the 17-

compartment

of the vehicle of the that Mr. to small

He took possession glove compartment and (Tr.

plastic had the

bag from previously

Craan

showed him, the vehicle Irish

continued 2/25/11: several in the

search

interior the

of

18). small center to

Within baggies console, be

vehicle

Trooper marijuana, blue center grinding 2/25/11: could vehicle, There Irish 2/25/11:

found

containing three in used door claimed in (3) the for (Tr. he the 32).

marijuana that he and

pills

believed a the 42). strong the in

Ecstasy

console, marijuana 18-19,

device driver's

commonly side Irish

in

31-32, a

Trooper odor trunk trunk, caliber or

still so

smell he

marijuana (Tr. 2/25/11:

checked

was no marijuana found rounds of

the

however,

Trooper (Tr.

0.38

ammunition

18-19,

32-33). passenger search Irish were at was asked the front of (Tr. the

Mr. Craan and the the vehicle while

the Trooper

occurring them about

2/25/11:

19-20).

marijuana, Ecstasy and ammunition once he was finished with the search
(Tr.

2/25/11:

20)

Mr.

Craan

acknowledged that he smoked marijuana, but that he did not know where the Ecstasy came from (Tr. 2/25/11: 2122, 43).

Mr. Craan initially denied knowing where the

ammunition came from, but later acknowledged that he believed the ammunition belonged to a security guard friend to whom he had recently given a ride (Tr.

2/25/11: 20, 43) At the end of the interaction, Mr. Craan and the passenger were issued summonses for criminal offenses and sent on their way (Tr. 2/25/11: 23). B. The Judge's Ruling Mr. Craan incorporates by reference the judge's ruling as set forth in the Commonwealth's Brief
6 - 8) .

(C.B.

SUMMARY OF THE ARGUMENT I. Trooper Irish's search of exit Mr. order Craan provided The order and and by subsequent his the two vehicle Fourth factors and his

warrantless violated Amendment causing

the and

protections Article Irish 14. to

only Mr.

Trooper

Craan

passenger out of the vehicle and subsequently search it were: 1) the smell of unburned marijuana allegedly emanating from the vehicle, and; 2) the sight of a

small baggie containing what Trooper Irish believed to be marijuana. Since the enactment of G.L. c. 94C, ~

32L and cases decided subsequently, these two factors alone did not provide Trooper Irish with probable

cause or reasonable suspicion that a criminal amount of marijuana was present in order to justify the exit order and search. permissible grounds Additionally, there were no other for the exit order and search

because there were no factors showing that Mr. Craan and/or his passenger were engaged in criminal activity or presented a danger to the troopers or others. See
pp. 12 -30.

II. believe

Trooper that

Irish Mr.

did Craan

not was

have

probable

cause under First,

to the Mr.

operating reasons. of

influence Craan glassy evidence Craan facts

of marijuana no

for three

exhibited eyes,

characteristic speech).

impairment there

(red, was no Mr. no or

slurred

Second,

of consumption

in the vehicle. weed earlier, it in

Al though there the were

admitted showing

to smoking that he

consumed

vehicle

specifying Trooper smelled marijuana. recent at

what

"earlier" explicitly marijuana marijuana Third,

meant. clear
as

Additionally, that he burnt

Irish was unburned Burnt

and adamant opposed likely to

is more although

to indicate occurred not to and for the

consumption.

the stop elected Mr.

sobriety

checkpoint, field

Trooper tests a to

Irish to

administer instead charges

sobriety issued him

Craan summons under

merely

criminal operating

completely

unrelated

influence.

See pp. 30-33.

III. vehicle

Trooper based the on

Irish

could of

not

search law

Mr.

Craan's it to

violation

federal State and

because courts

undermines

power

of this
10

its

enact amounts

laws of

with

regard

to

the

possession Article unlawful 14

of

small

marijuana. protections

First, against the by

provides and as

heightened seizure illustrated to G.L. c.

search

compared more 94C,

to recently ~ 32L.

Fourth cases

Amendment

decided Trooper of

subsequent Irish the was

Second, direction

acting without

solely any

under federal

the

state, was no ever a

involvement, federal

and

there

indication considered. memorandum federal

that Third,

prosecution of Justice

was

the Department the

issued

addressing

inconsistency laws, advising federal existing

between federal on laws.

law and state marijuana to in not direct with

prosecutors individuals

resources state

compliance

See pp. 33-38.

11

ARGUMENT I. The trial judge correctly suppressed the evidence because the trooper lacked permissible grounds to order Mr. Craan out of his vehicle and subsequently search it based only on: (1) the smell of unburned marl]Uana coming from the interior of the vehicle and (2) the observation of a small quantity of marijuana inside the vehicle. A. Both Legal Standard the Fourth Amendment to the United (hereinafter and of Article Rights protect referred
14 of to
as

States "Fourth

Constitution Amendment" ) Declaration "Article

the

Massachusetts to as

(hereinafter referred against unreasonable

14")

searches

and seizures.

See U.S. Const. amend.

IV. and Mass.

Const. Pt. 1, art. XIV. must be both reasonable

"A search of private property and pursuant to a properly

issued search warrant. search, assessed in

The mere reasonableness of a the light of the surrounding

circumstances,

is not

a substitute for the judicial

warrant required under the Fourth Amendment." Arkansas v. Sanders, 442 U.S. 753, 758
(1979)

"Searches

conducted outside the judicial process, without prior approval

by

judge

or

magistrate,

are

per

se

12

unreasonable to a few

under

the

Fourth well

Amendment

subj ect

only

specifically

established States, has not

and delineated 347, 357 the

exceptions./J Katz v. United (1967). government and seizure warrant Supp. "Where bears a warrant the burden

389 U.S. been

obtain~d,

of proving

that

its search to the 816 F.

falls within
/J

a recognized States 1993).

exception v. Lewis, "All

requirement. 789, by 792

United Mass. and

(D.

evidence of the

obtained

searches is, by

seizures same v.

in violation

Constitution in a state

that

authority, 367

inadmissible U.S. 643, 655

court./J Mapp

Ohio,

(1961) . Assuming, stopped as part arguendo, that Mr. Craan was validly

of a sobriety

checkpoint4,

the proper

The stop of a motor vehicle at a fixed roadblock constitutes a warrantless seizure of that vehicle and driver without individualized suspicion under the Fourth Amendment and Article 14. Commonwealth v. Murphy, 454 Mass. 318, 322 (2009); citations omitted. However, the Supreme Judicial Court has endorsed certain guidelines for sobriety checkpoint procedures so that they do not offend the guarantees of the Fourth Amendment and Article 14. See Commonwealth v. Trumble, 396 Mass. 81, 82-83 (1985); State Police General Order TRF-15. A driver directed to the secondary screening area in a sobriety checkpoint has been stopped in accordance with principles set forth in Terry v. Ohio, under the familiar standard of "reasonable suspicion./J Commonwealth v. Murphy, 454 Mass. at 325. 13

analysis

is

whether search grounds. (2011). of

the were

exit

order

and

subsequent on other 461

warrantless permissible Mass. 44, 48

valid

based

See Commonwealth "Article

v. Johnson,

14 of the Massachusetts three or

(1)

Declaration issuing routine reasonable reasonable others; Lobo, or 82 an

Rights order to

recognizes a driver stop:

of

bases

for in a

exit

passenger

motor

vehicle

particularized activity;
(2 )

suspicion apprehension (3)

criminal danger to

of

the

police

or

'pragmatic

reasons.'" 803, 808

Commonweal th v. (2012) ; (2011) when Trooper and all and v. as be citing

Mass.App.Ct.

Commonwealth None Irish

v. Cruz, 459 Mass. 459, 466 justifications exit his order applied to

of these the

issued

Mr.

Craan

subsequently evidence search

searched after

vehicle. improper See

Therefore, exit order

obtained must be

this

suppressed. 60, 63

Commonwealth obtained must

Loughlin, a result

385 Mass. of

(1982) (evidence police the

unconstitutional "fruit
of

conduct poisonous

excluded doctrine) .

under

tree"

14

B.

The trooper did not possess a reasonable fear for his safety or that of others to justify the exit order and search. every circumstance Even that justifies search a stop also for weapons

Not justifies

a frisk.

a limited

is a serious See Terry

intrusion v. v. Ohio,

on the sanctity 392 u.S. 373

I,

of the person. 16-17 266, (1968) ; 270-271 search is the

Commonweal th (1977) . is not

Almeida,

Mass.

The purpose investigatory,

of the limited but protective. of a crime,

Terry-type

The purpose but to allow

not to discover police to

evidence

pursue

appropriate rd. is validly may

investigation

without

fear of violence. Once suspicion, search

a suspect an

stopped a

upon

reasonable Terry

officer

conduct

limited

of the suspect believes See "an prudent warranted or that

for weapons

only

if the officer of others at 27. 'a

reasonably is in

that Terry exit man in of

his safety v. order in the belief Ohio, is

or that 392

danger.

U.S.

Accordingly, reasonably would the be

justified

if

policeman's that the in

position safety of
11

the

police

other

persons

was

danger.

15

Commonweal th Commonwealth The determining Terry-type v. Long,

v.

Cruz,

459

Mass

at

466,

quoting (1999). in a

v. Gonsalves, following whether search:

429 Mass. are

658, 661

factors the police observation

considered may conduct

officer of

a weapon

[Michigan v. of 112 Meng

463

U.S.

1032,

1051

(1983);

Commonwealth clothing 106, Va

Almeida,

373 Mass.

at 272] a bulge v. Mimms,

in the

the suspect (1977)]; Joe, 40 a

[Pennsylvania furtive Mass.

434 U.S. v.

gesture App. Ct.

[Commonwealth 499, 509-511 of

(1996)]; suspect 315

belligerence [Commonweal th (1992)];

or unruliness v . Rivera, tips

on the part 33 Mass. App.

the

Ct.

311,

informants'

that

an individual Fraser, 410

is armed Mass. 541, for v. of 127, the v.

and dangerous 547 (1991)];

[Commonweal th v. knowledge of Mass. crimes App. of

suspect's committed Ct. at

reputation [Commonwealth 315] ; time

violence/kinds Rivera,
33

day/location 129

[Commonwealth

v. Sumerlin, area)];

393 Mass. and whether

(1984) (at night, is 'alone

isolated or

officer Rivera, that

outnumbered

[Commonwealth It should

33 Mass. factor

App. by

Ct. at 315]. itself is

be noted to

one

rarely

sufficient

16

support M. Law,

a pat-frisk.

Joseph A. Grasso, Matters ed.) Under

Jr. & Christine Massachusetts v.

McEvoy, ~ 1-11

Suppression (2009-2010

citing

Commonwealth

Rivera,

33 Mass. App. Ct. at 314-315. of these the factors were Neither danger to present Mr. in this Craan nor Irish case his or

None to justify

search. any

passenger others observe passenger, passenger Irish did

presented

Trooper

at the time of the stop. any or weapons inside either

Trooper on Mr. Mr.

Irish did not Craan, Craan and his his

the vehicle. any furtive information

did not make not have was if any armed Mr.

gestures. that Mr.

Trooper Craan or

his passenger did not know

and dangerous. Craan or his

Trooper passenger

Irish had

reputations The sobriety There

for violence show that with

or crime. Mr. many Craan state was stopped at a

facts

checkpoint

troopers lights

presents. set Mr. up to

were

generator-run the area

overhead

illuminate

(Tr. 2/25/11:

29, 42).

Craan

Trooper Irish did not testify as to the exact amount of troopers present, but did say there were six at the initial stop-point (Tr. 2/25/11: 25) and a second was present while he searched Mr. Craan's vehicle (Tr. 2/25/11: 17)] 17

and

his

passenger any of the

were

not

belligerent In fact

or

unruly the

towards

troopers.

quite

opposite was true: Mr. Craan followed Trooper Irish's instructions and answered his questions about the

smell of marijuana

(Tr. 2/25/11; 13-17).

At no point

did Trooper Irish testify that he believed that he was in fear for his safety or that others were in danger. Additionally, although the Commonwealth does not explicitly advance the "safety" argument, they do

state in their brief that Trooper Irish was justified in searching not the vehicle his to ensure that Mr. and Craan ingest this the

would

operate

motor

vehicle

marijuana after argument takes Cruz

the stop a

(C.B. 14) leap

However, interpreting

tremendous

holding of

and goes

on an unnecessary

tangent

regarding the dangers of operating under the influence that are not relevant to this case. The Commonwealth claims "Cruz also did not hold that an officer, smells of fresh, confronted with an automobile unburned marijuana, cannot that

search

that car to ensure that, should the driver be allowed to go on [his] way, he does not have additional

18

marijuana" Cruz.

(C.B. 22)

This greatly mischaracterizes

At its core, Cruz stands for the proposition

that the odor of burnt marijuana, without more, does not justify an exit order and subsequent search. Commonwealth
v.

See
808i

Lobo,

82

Mass.App.Ct.

at

Commonwealth v. Cruz, 450 Mass at 460. Here, Trooper Irish did not reasonably believe

that Mr. Craan or his passenger presented a danger to the troopers or others. ln There the was no vehicle not evidence or of

marijuana operation.

consumption Trooper

impaired administer

Irish did

even

field sobriety tests despite the stop occurring at a sobriety checkpoint. As such, the exit order and

search of the occupants and the vehicle were unlawful. Any evidence obtained as a result of this search must be suppressed as a matter of law. See Commonwealth v. Silva, 366 Mass. 402, 405-406 (1974)
C.

The trooper did not have reasonable suspicion based on articulable facts to believe that Mr. Craan was engaged in criminal activity.

An exit order is also justified if "the officers could have developed reasonable suspicion (based on

articulable facts) that the defendant was engaged in

19

criminal

acti vi ty ...

/I

Commonwealth

v.

Cruz,

459 Mass 616,

at 466, citing 621 (2008).

Commonwealth "A mere hunch

v. Bostock,

450 Mass.

is not enough

... the test 366 Mass.

is an objective at 406. is not

one./I Commonwealth

v. Silva,

"Simple good

faith on the part of the officer v. Bacon, 381 Mass. 642,

enough./I Commonwealth

643 (1980) Further, suspicion suspicion is of the tied, "lesser by its standard very as of reasonable to the

definition, opposed v. to

criminal, conduct./I citing

merely 459

infractionary, Mass. at at 469,

Commonwealth v.

Cruz,

Commonwealth people of

Silva,

366 Mass.

405.

"When

the

this 2008 less a

Commonwealth ballot, of the

answered offense changed

'yes' to Question of possessing from being v. a one

2 on the ounce or to

marijuana offense.
/I

criminal 459 Mass.

civil

Commonwealth facts, then,

Cruz, must than

at 470. that of

"Articulable the defendant because is not a at 469;

demonstrate one ounce

possessed possession crime./I

more

marijuana,

of one ounce Commonwealth

or less of marijuana v. Cruz, 459 Mass.

citing G.L. c. 94C, ~ 32L.

20

This case falls directly in line with the holding in Cruz and those decided after the enactment of G.L.
c.
94C, 32L. 803

See

Commonwealth exit of

v.

Lobo, order

82

Mass.App.Ct. subsequent

(2012)(invalid based on odor

and burnt

search

freshly

marijuana coming from inside vehicle); Commonwealth v. Damon, 82 Mass.App.Ct. 164

v.

(2012)(same); Commonwealth 1115 (2011)[Rule 1:28

Valle,

80

Mass.App.Ct.

Decision; see A.A. 47] (smell of marijuana coming from vehicle search) . In this case, at the time Trooper Irish ordered Mr. Craan and his passenger out of the vehicle, there was no evidence that Mr. Craan possessed a criminal is not enough to warrant exit order and

amount marijuana or that he was engaged in any other criminal activity. sobriety Mr. Craan was stopped as part of a he did not commit a traffic

checkpoint;

violation or some other offense warranting the stop. There was no evidence of marijuana consumption in the vehicle or impaired operation by Mr. Craan. Irish did not sobriety tests. Trooper field

request that Mr. Craan perform

In fact, Trooper Irish was adamant

21

that he smelled marijuana, 2/25/13: were 13) on

unburned could exit smell

marijuana indicate order of

as opposed recent

to burnt use (Tr. search from

which The the

and

subsequent emanating

based

marijuana

the vehicle what

and the sight of a small baggie Irish Trooper believed to be

containing (Tr.

Trooper 17)

marijuana

2/25/11; as

Irish himself 17). 29). He

described did not

the bag know the

"small"

(Tr 2/25/11;

weight of it (Tr. 2/25/11: These factors

are not enough search. Quite

to warrant simply, by

the exit there were Mr. Craan

order and subsequent no factors indicating

criminal

acti vi ty

or his passenger. D. The trooper did not have probable cause to search the vehicle under the automobile exception because there was insufficient evidence that it contained a criminal amount of marijuana. is also not the the case where out to of "the the officers car for an the

This could have

ordered reasons,

defendant e.g. ,

pragmatic independently car under

facilitate search to the of

permissible automobile Commonwealth

warrantless exception v. Cruz,

the

warrant at 467,

requirement."

459 Mass.

22

citing (1990) .

Commonwealth "Under search have on a

v. the

Cast,

407

Mass.

891,

901 a when a or make

automobile

exception, is permitted

warrantless the motor police

of an automobile 'probable a public and cause way

to

believe

that

vehicle of

contains

contraband

evidence obtaining The exception standard also

crime,

exigent

circumstances

a warrant "probable is lesser to

impracticable.'" cause" than support standard the an

rd. at 473-474. of the automobile suspicion" rd. i 174 see

"reasonable exit order. 169,

needed

Commonwealth cause less

v. Hason, requires

387 Mass.

(1982) but a

("Probable something

more

than mere sufficient

suspicion to warrant

than

evidence

conviction") . Addi tionally, the that validity used of

by

"[t]he

standard

used is

to the

determine same as the

v.

a warrantless a a magistrate search

search in

considering Commonweal th v. Warden,

application Cruz,

for

warrant. Whiteley

459 Mass. 560, 566

at 475, citing (1971). "[S]each to

401

U.s.

warrants [them]

are issued by in criminal ~ 2B. As

magistrates cases'''.

'authorized

issue G.L.

rd. at 475, quoting

c. 276,

23

noted

above, was

possession changed See

of a

one

ounce

or

less to

of a

marijuana civil 470; one.

G.L.

from

criminal v. Cruz,

offense 459 in motor

Commonweal th ~ 32L.

Mas s . at order "to

c. a

94C, search

Accordingly, to have amount the

undertake exception, believe present, v.

pursuant must

vehicle cause to is

the a

police

probable of

that

criminal some

contraband

not merely 81 v. for

lesser

amount.H 311 at

Commonwealth (2012), 476. citing "It is

Daniel,

Mass.App.Ct. Cruz, the 459

306, Mass. to

Commonwealth unreasonable warrantless facts suggest Mass. at 477. As after of noted

police for

spend

time when

conducting no specific 459

searches

contraband

criminality.H

Commonwealth

v. Cruz,

above

in

Cruz

and

other

cases

decided

the

enactment burnt

of G.L.

c. 94C, without

~ 32L, more,

"the odor no longer

freshly

marij uana, cause, amount

provides that a

probable criminal

or even reasonable of marijuana is

suspicion, present.H

Commonwealth Commonwealth

v. Lobo, v. Cruz,

82 Mass.App.Ct. 459 Mass. 459;

at 808; See also Commonwealth v.

24

Damon,

82 Mass.App.Ct. 1115

164;

Commonwealth

v.

Valle, 47].

80

Mass.App.Ct.

[Rule 1:28 Decision; v. Daniel, cause the the

see A.A.

Contrast, 306(police defendant's In Daniel, marijuana, marijuana marijuana, criminality, defendant wi thout made using

Commonwealth probable under to

81 Mass.App.Ct. search the

had vehicle in

to

automobile officer admission two small factors

exception). burnt smoking of

addition

smelling to

the

defendant's

and showing there

the officer other

baggies

were

suggesting the

specifically: a left turn her

broken

headlight;

in front of police the defendant

cruiser stopped road her the

directional;

her vehicle causing and the

abruptly police

in the middle cruiser to

of a one-lane rear-ended by

nearly

blocking

traffic;

furtive

gestures

passenger. Mr.

Id. at 308. Craan' s case more closely follows the facts Mr.

in Cruz and others, Craan was stopped commit Craan a traffic

where

the search was invalid. checkpoint; 2/25/11; Irish's Trooper

at a sobriety violation with stop.

he did not 13). Mr.

(Tr.

complied the

Trooper He

questions Irish's

throughout

followed

25

directions subsequently marijuana as to

to

the

second

screening about

area

and

answered

his questions 13-17). plastic

the smell of so far glove to be

(Tr. 2/25/11; show a that (Tr. small

Mr. Craan went bag from the

compartment marijuana described not know

Trooper 17).

Irish

believed Irish 17).

2/25/11;

Trooper

himself He did In or

the bag a "small" the weight of it

(Tr. 2/25/11; (Tr.

2/25/11:

29). driving

additionr marijuana The order and Mr.

there was no evidence consumption only Craan two and

of impaired

in the vehicle. factors causing Trooper out 1) of Irish to

his passenger it were:

the vehicle smell from of the

subsequently marijuana and; what

2)

search

the

unburned vehicler containing

allegedly the sight

emanating of a

small

baggie

Trooper

Irish believed two factors

to be marijuana alone to did not a

( Tr . 2/2 5/11 ; 17) . provide the police search

These with

probable they

cause not

execute

warrantless the vehicle Mr.

because a

did

indicate of

that

contained Craan

criminal

amount were

marijuana some

or that

and his passenger

engaged

26

other

criminal

activity.

See

Commonweal th

v.

Cruz,

459 Mass. E.

at 476. The Article 14 protections pronounced in Cruz apply regardless of whether the smell of marijuana is burnt or unburned. Commonwealth marijuana and v. Cruz, the court law announced our burnt probable criminal v.

"In that the

decriminalization the more, no odor of

changed

jurisprudence, marij uana, cause, amount Lobo, or of

freshly provides that a

without even

longer

reasonable is

suspicion, present."

marijuana

Commonwealth

82 Mass.App.Ct. The Commonwealth between when

22)

at 808. argues unburned that there and is a

distinction marijuana search6(C.B. argues

marijuana the

burnt
of

evaluating

validity the

Specifically,

Commonwealth holding that in an

that Cruz does not alter the court's v. Garden, of 451 Mass. unburned cause 43

Commonwealth officer's

(2008),

detection

marijuana to believe

emanating that the this

from a car provides car contains more

probable marijuana

(C.B. 22)

However,

For purposes of clarity, the term "unburned" marijuana" shall be synonYmous with raw or fresh marijuana, or marijuana that has not been smoked
27

argument full

misses

the

mark

and

fails

to

consider

the

impact

of G.L. c; v.

94C, ~ 32L. Garden was decided of G.L. of c. on April ~ 1, 32L.

Commonweal th
2008, before

the

enactment the

94C,

Garden

itself from

involved the and

smell of

burnt occupants

marijuana of a the

emanating motor search. The court on

clothing the

the

vehicle

permissible Garden, to

scope 451 Mass.

of at

valid 45.

Commonwealth v. repeatedly

43,

refers

the

smell

of

marijuana it as did

multiple or

occasions "burnt". the whether

without

designating
48-50.

"unburned" so in

rd. at
permissible the the

The court of in the The the

evaluating

scope

search: was when court trunk to

specifically, justified he smelled that the in

officer trunk of

Garden vehicle Garden to the

searching only the burnt search

marij uana. could not

decided because find

extend

officer

could there. Garden to

not rd. deals c.

reasonably at 52. the

~

expect

burnt

marijuana while
prior

However, valid search the ~

with 94C,

scope 32L,
after

of

G.L.

Cruz G.L. ~ 32L

addresses c. 94C,

validity The

of the

search

itself c.

32L.

enactment

G.L.

94C,

28

changed

the law

in the Commonwealth with

regard

to

marijuana, changing the status of possessing one ounce or less of marijuana from a crime to a civil

infraction. above, found cases that

See G.L. c. 94C, ~ 32L. decided must subsequently be some

As described repeatedly factors

have

there

additional

indicating criminality or that a criminal amount of marijuana is present ln order to validate the exit

order and search. 459; Commonwealth

v.

See Commonwealth v. Cruz, 459 Mass. v. Lobo,

82 82

Mass.App.Ct. Mass.App.Ct.

803;
164;

Commonwealth

Damon,

Commonwealth v. Valle, 80 Mass .App.Ct. 1115 [Rule 1:28 Decision; see A.A. 47] In Commonwealth v. Valle, this Court did not

designate burnt versus unburned marijuana and instead stated: "[i]n the wake of Commonwealth v. Cruz, it is no longer enough a than an officer when smells marijuana with a To

coming

from

vehicle, of

even

coupled

defendant's

admission

smoking

marijuana.

justify the search of an automobile, the officers must have other evidence
of a

of criminal activity or amount

of

of

the

existence

criminal

contraband."

29

Commonwealth 1:28 Decision; In Trooper this Irish

v.

Valle,

80 Mass.App.Ct.

1115,

[Rule

see A.A. 47] case, the only two factors causing out

to order Mr. Craan and his passenger and subsequently marijuana the sight search it were:

of the vehicle smell vehicle, containing of

1) the the

unburned and;
2)

emanating of a

from

small

baggie

what Trooper 17) . police search amount

Irish believed two factors

to be marijuana alone to did not a

( Tr . 2/25/11: provide the

These with because

probable they

cause not

execute

warrantless a criminal

did

indicate

that

of marijuana

was present

or that Mr. criminal

Craan and his passenger activity.

were engaged

in other

See Commonwealth

v. Cruz, 459 Mass. at 476.

II.

The trooper did not have probable cause to believe that Mr. Craan was operating under the influence of marijuana because he exhibited no characteristics of impairment and there was no evidence of consumption in the vehicle. The Commonwealth Mr. argues that Trooper Irish could

have under

arrested the

Craan of

for operating marijuana,

a motor

vehicle

influence

thereby

justifying

30

the

subsequent for

search this

(C.B. 12-13). in the

However, there record. valid arrest.

is

no support For must Ohio, for be

argument to cause

an arrest probable

be constitutionally to make the

there

Beck v. an arrest of the the [d] a to

379 U.S.

89,

91

(1964). vehicle G.L. c.

To support under 90, the

operating

a motor of

influence

drugs, facts time

in violation and must

~ 24 (1) (a) (1), the officer "operate in at

circumstances show that: (2) has place invitees the (1)

known to the

defendant

motor vehicle"; which way or the in public any as

"upon any way or a to right of

any place or

access,

upon any public did so

which members of or licensees"; of or stimulant chapter and

the (3)

have access "while narcotic all

C."

under drugs, defined

c.

influence

marijuana, substances, ninety-four

depressants in section

as
G.L.

one of

90,

~ 24 (1) (a) (1).

In cases probable the Mass.

its

brief,

the

Commonwealth lists where for

a litany there

of was

describing cause to

circumstances make an arrest See

operating O'Connor, to drinking

under 420 and

influence. 630

Commonwealth v. admitted

(1995) (defendant

31

had Mass.

red-glassy App.
Ct.

eyes) i
956

Commonwealth

v.

Roviaro, admitting

32 to

(1992) (defendant

drinking five or six beers immediately prior to motor vehicle App. accident) i
973

Commonwealth
of

v.

Rivet,

30

Mass.

Ct.

(1991)(smell

alcohol,

defendant eyes). In

admitted consuming alcohol and had glass

all of these cases, there were multiple factors - red, glassy eyes, admission of consumption, odor of alcohol leading the officer to believe the driver was

operating under the influence. However, here, the record is completely void of evidence that Mr. Craan consumed marijuana in the

vehicle or operated under the influence of marijuana. Trooper Irish did not describe any physical

characteristics indicating that Mr. Craan was impaired (i.e. red, glassy eyes, slurred speech). There was no

testimony showing that Mr. Craan and/or his passenger had smoked in the vehicle. Although Mr. Craan

admitted to

smoking weed earlier, Trooper

Irish was

explicitly clear that he did not smell burnt marijuana which could indicate consumption in the vehicle 2/25/11:
13) .
He

(Tr.

reiterated

this

on

multiple

32

occasions

(Tr. 2/25/11: 14, 16)

Trooper Irish had

every opportunity to administer field sobriety tests or follow up on Mr. Craan's marijuana use and his

level of impairment, but he did not. stop occurred

Ironically, the

at a sobriety checkpoint, yet Trooper

Irish merely issued Mr. Craan a criminal summons for charges completely unrelated to operating under the

influence and sent him on his way (Tr. 2/25/11: 23) Quite simply, at the time of the incident, there was no evidence supporting the notion that Mr. Craan was operating his motor vehicle under the influence of marijuana.

III. The trooper could not search Mr. Craan's vehicle based on violation of federal law because there was no evidence of a federal investigation or prosecution and Article 14 provides heightened protections against unlawful search and seizure as compared to the Fourth Amendment. The Commonwealth argues that the search was

permissible under the automobile exception because Mr. Craan had marijuana in his vehicle in violation of

federal law (C.B. 23).

However, this argument misses

the mark because it does not grasp the impact of the

33

Cruz

decision

and

the distinctions 14. v. Upton standard decided

between

the

Fourth

Amendment

and Article

In Commonwealth the probable search more the cause and

II, the Court of 14

evaluated issuing a

for purposes that to Joseph Article

warrant substantive

provided than does

&

protection

defendants A.

Fourth

Amendment. M. McEvoy, Law, v. "Upton for the of ~

Grasso, Matters ed.) i 363,

Jr.

Christine

Suppression 1-11 II, is time (2009-2010 394 Mass.

Under citing 373-374 it

Massachusetts Commonwealth
(1985) .

Upton
II

significant that

because

determined requirements observed process, of Rights of

first

in addition which

to the must be due

the

Fourth

Amendment,

by the states Article provides individual instance of 14 of

as part the

of Fourth Amendment

Massachusetts additional, which and must

Declaration and be distinct

separate, rights, search

source

considered Joseph A.

in every

seizure."

Grasso,' Jr. & Christine Under effect Massachusetts of Upton Law,

M. McEvoy, ~ 1-11

Suppression

Matters "The

(2009-2010

ed.).

II is that in Massachusetts, from using as evidence items

the state illegally

is prohibited

34

seized seized

under

federal

constitution state

standards,

and items extent Id. of an

illegally

under

standards

(to the

that the state may impose a higher As noted above, "a

standard)" search have

warrantless

automobile cause

is permitted that

when the police a motor vehicle

'probable way and

to believe

on a public a crime, a

contains exigent

contraband circumstances

or

evidence make

of

obtaining

warrant Mass. at

impracticable.'" 473-474; analyzed impacted passage citations how the of the

Commonweal th v. omitted. enactment of In

Cruz [ 459 Cruz, c.

the 94C[ 14.

Court ~ 32L The

G.L. and 32L

Fourth G.L. c.

Amendment 94C[ ~

Article did not in not Cruz,

legalize amount

marijuana. remains with at

"[P] ossession

of marijuana is v.

any

illegal;

decriminalization Commonwealth marijuana

of

synonymous 459 Mass. to

legalization." 473. "Because any amount Id. to

remains is

unlawful

possess,

marijuana "[i]t

considered for

contraband." the police

However[ spend time

is unreasonable

conducting

warrantless facts suggest

searches

for contraband

when no specific

criminality."

Id. at 477.

35

At its core, Cruz stands the odor of burnt marijuana

for the proposition alone does not

that an

justify

exit order

and subsequent at 460. emphasized protections compared v. Lobo, v. to

search.

See Commonwealthv. to Cruz,

14

Cruz, 450 Mass has further

Subsequent that against the

this Court provides and See compare

Article unlawful

heightened seizure as

search

Fourth

Amendment. at 808i at

Commonwealth Pennslyvania Fourth driver Maryland applies The violate guise

82 Mass.App.Ct.
434 U.S.

Mimms,

109-110 (under exit order to

Amendment, of stopped v.

officers motor

may

issue as

vehicle

routine 414-415

practice) i (1997) (same

Wilson,

519 U.S.

408,

to passengers) . Commonwealth's protections of a federal suggests argument that a trooper 14 under can the The acting

provided law

by Article is

violation Trooper

absurd. Irish,

Commonwealth solely under checkpoint, empowered federal to crime.

that

the direction without disregard

any

of the state,
federal

at a sobriety was a

involvement, and investigate

state

law

At no point in a federal

in this

case was

Trooper At no

Irish involved

drug investigation.

36

point

did Trooper based

Irish ever testify on a violation that a

that he proceeded law. was There ever the and such

to search
lS

of federal

no

indication This

federal

prosecution

considered. State's the power

argument

completely

undermines its citizens

to enact Judicial

laws governing Court's power

Supreme

to

interpret

laws to protect Further, enacting use, new

its citizens. the laws inconsistency regarding etc.) between (i.e. law states medical making has not

marijuana and

decriminalization, of marijuana

federal

possession

in any amount government.? Deputy and

illegal

been ignored from David

by the federal of on Justice

See Memorandum General in

Department W. Ogden

Attorney

Investigations Medical (Oct. 19, 50)

Prosecutions

States Authorizing States to as Attorneys "DOJ

Use of Marijuana, 2009) (hereinafter The DOJ Memo are

to United referred provides to

Memo") (A.A.

guidance approach

as to how

federal

prosecutors

advised in

investigations laws.

and

prosecutions prosecutions

states

with marijuana

Federal

are advised

Although Massachusetts "medical marijuana" category & 32L had been enacted.
37

did not fall into the at the time, G.L. c. 94C,

to

focus

their and

attention not

on

significant federal are in

trafficking on with

networks individuals existing

direct actions See rd. federal

resources compliance

whose laws. no

state was

There The citizens with regard

involvement voiced

in

this

case.

of this Commonwealth to the possession

their

opinion

of one ounce See G.L. has

or less of c. 94C, ~

marijuana 32L.

and the State responded. Supreme the and Judicial of Court G.L. that

The

subsequently ~ a 32L on

interpreted Article standard seizure 14 of as

impact

c. it provides unlawful

reiterated

higher and See State

protection compared v. Lobo, to

against the

search

Fourth

Amendment. at 808.

Commonwealth law the

82 Mass.App.Ct. alone and its cannot

enforcement power of laws

officials the state

now to

undermine enact and

courts

interpret amounts

with

regard under

to the possession the guise

of small law

of marijuana

of a federal

violation.

38

CONCLUSION WHEREFORE! defendant/appellee! requests for the Anthony foregoing Craan! Court affirm reasons! the

respectfully the decision

that this Honorable in allowing

of Judge Miller

his motion

to suppress.

Respectfully Submitted! ANTHONY CRAAN! defendant/appellee! By his attorney!

~:i~

-----

BRIAN J. ANDERSON / 670871 Contant Law Offices! P.C. 141 Tremont Street! 4th Floor Boston! MA 02111 (617) 227-8383 brian@contant-law.com

39

ADDENDUM The Fourth Amendment to the Constitution of the United States provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article XIV of the Massachusetts Declaration of Rights provides: Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

Massachusetts General Laws Chapter 90, ~ 24 (1)(a)(1) provides in pertinent part: Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant
40

substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

Massachusetts provides:

General

Laws

Chapter

94C,

32C (a)

(a) Any person who knowingly or intentionally manufactures, distributes, dispenses or cultivates, or possesses with intent to manufacture, distribute, dispense or cuItivate a controlled substance in Class D of section thirty-one shall be imprisoned in a jail or house of correction for not more than two years or by a fine of not less than five hundred nor more than five thousand dollars, 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 thirty-one under this or any prior law of this jurisdiction or of any offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense shall be punished by a 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.

Massachusetts provides:

General

Laws

Chapter

94C,

32L

Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana
41

shall only be a civil offense, subj ecting an offender who is eighteen years of age or older to a civil penal ty of one hundred dollars and forfeiture of 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 a 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 with 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 impose any form of penal ty, 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 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 those 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.

42

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 metabol ites 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 or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana or tetrahydrocannabinol, laws concerning the unlawful possession of prescription forms of marihuana 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 Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.

Massachusetts General Laws Chapter 94C, ~ 34 provides: 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 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
43

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 jailor 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 not 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 said earlier law, shall 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. 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 proceedings against him, and may order sealed all official records relating to his arrest, indictment, conviction, probation, continuance or discharge 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
44

purpose 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 information 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 ordered 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, continuance, sealing, or any other related court proceeding, in response to any inquiry made of him for any purpose. 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 such person does not consent thereto, or unless the court files a written memorandum stating the reasons for not so doing. Upon successful completion of said probation, the case shall be dismissed and records shall be sealed. It shall be a prima facie defense to a charge of possession of marihuana under this section that the defendant is a patient certified to participate in a therapeutic research program described in chapter ninety- four D, and possessed the marihuana for personal use pursuant to such program.

45

Massachusetts General Laws provides in pertinent part:

Chapter

269,

10 (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.

Massachusetts General Laws Chapter 276, ~ 2B provides in pertinent part: A person seeking a search warrant shall appear personally before a court or justice authorized to issue search warrants in criminal cases and shall give an affidavit in substantially the form hereinafter prescribed. Such affidavit shall contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant. The person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable. Upon the return of said warrant, the affidavit shall be attached to it and shall be filed therewith, and it shall not be a public document until the warrant is returned.

46

Com. v. Valle, 80 Mass.App.Ct. 956 N.E.2d 1265

1115 (2011)

Unpublished Disposition 80 Mass.App.Ct. 1115 Only the Westlaw citation is currently available. NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts ofthe case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25,2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Appeals Court of Massachusetts. COMMONWEALTH v. Francisco VALLE. NO.1O-P-1769. November
10, 2011.

Trooper Donah approached the car and asked the defendant for his license and registration. During the stop, Donah smelled the odor of burnt marijuana coming from the car and the odor of alcohol on the defendant's breath. In response to questions, the defendant admitted to both smoking marijuana and drinking alcohol earlier in the day. The trooper then ordered Valle from the car, handcuffed him, and placed him in a police cruiser. At this time, the defendant had not been formally arrested. Donah then searched the car for marijuana. He found three burnt cigarettes in the car's ashtray; they carried the aroma of marijuana. The cigarette remains had a total weight of less than one ounce. Donah continued his search of the car and located a loaded fireann under the front passenger seat of the car. A second trooper, Brian Clapprood, arrived and assisted with the search of the car. Donah then placed Valle under formal arrest and gave him his Miranda warnings. At the police station, Valle agreed to a breathalyzer test. It determined that he was operating under the influence of alcohol. As a result of the search and subsequent breath test, the Conml0nwealth obtained grand jury indictments for the offenses of (l) unlawful possession of a firearm, G.L. c. 269, S 10(a ); (2) unlawful possession of ammunition without a firearms identification card, in violation ofG.L. c. 269, S 10(h ); (3) unlawful possession of a loaded firearm, in violation G.L. c. 269, S 10(n ); and (4) operating a motor vehicle while under the influence of liquor, in violation of G.L. c. 90, S
24(l)(a )(1).

By the Court (CYPHER, SIKORA & HANLON, JJ.). Opinion

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 *1 The Commonwealth appeals from a Superior Court order, which allowed the defendant's motion to suppress evidence resulting from a search of the defendant's automobile. For the following reasons, we affirm. Background. On April 23, 2009, at about 11:45 P. M., State police Trooper Matthew Donah was working in downtown Springfield in a marked police cruiser. While stopped at a traffic light, Trooper Donah observed defendant Valle's car traveling toward the intersection at an excessive speed. The car made a tum past the trooper's stopped car at such a high rate of speed that it crossed the marked lines and the trooper thought the car might strike his cruiser or the median. Trooper Donah then followed Valle's car. As he did, Donah observed partially obstructed numbers on the car's rear license plate. He then pulled the car over.

Valle filed a pretrial motion to suppress evidence, which consisted of (1) the loaded firearm found underneath the passenger seat; and (2) any consequent evidence of operating under the influence of intoxicating liquor (OUI), including the breathalyzer test result at the station house. A Superior Court judge granted the motion in an order dated June 14,2010. On June 18,2010, the Commonwealth filed a notice of appeal of the order, and on June 28, 2010, submitted an application to a single justice of the Supreme Judicial Court for leave to appeal. The single justice allowed the application and referred the appeal to this court. See Mass.R.Crim.P. 15(a)(2) and (b) (1), as appearing in 422 Mass. 1501 (1996). *2 Discussion. The Commonwealth argues (1) that the smell of burnt marijuana furnished probable cause to justify a search of the car under the automobile exception to the warrant requirement,
1

(2) that the search was proper as one incident

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Com. v. Valle, 80 Mass.App.Ct. 956 N.E.2d 1265

1115 (2011)

to a lawful arrest, and (3) that the exit order, handcuffing, and placement in the police cruiser were lawful under either theory of the search. 1. The odor oj'marijuana and the automobile exception. The Commonwealth's claim that the search was valid based on the smell of burnt marijuana emanating from the car, as either evidence of a crime or contraband, was prepared and briefed prior to the decision in Commonwealth v. Cruz, 459 Mass. 459 (2011). As the Commonwealth now appears to acknowledge, the reasoning of Cruz forecloses its first contention. The automobile exception to the warrant requirement pernlits a warrantless search of an automobile ifpolice 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 a warrant impracticable." Commonwealth v. Cast, 407 Mass. 891, 901 (1990), citing Carroll v. United States, 267 U.S. 132, 149 (1925). In Commonwealth v. CrllZ, the Supreme Judicial Court held that the reduction of possession of one ounce or less of marijuana from a criminal offense to a civil infraction prevents the smell of marijuana from qualifying as probable cause to justifY a warrantless search under the automobile exception to the warrant requirement. 459 Mass. at 475-476. The court held that the police must instead have probable cause to believe that a criminal amount of contraband is present in the car, not merely some traces or remains of a substance. Jd. at 476. Here, the mere odor of burnt marijuana could not, and did not, support the belief that more than one ounce lay in the car. The court in Commonwealth v. Cruz also rejected the argument that "contraband" can have a noncriminal character and thereby independently justify a search. 459 Mass. at 474-477. The court instead required that contraband have a criminal character either by quality or quantity, in this case more than one ounce of marijuana, to satisfY the probable cause requirement of the automobile exception. Ibid. In the wake of Commonwealth v. Cruz, it is no longer enough that an officer smells marijuana coming from a vehicle, even when coupled with a defendant's admission of smoking marijuana. To justify the search of an automobile, the officers must have other evidence of criminal activity or of the existence of a criminal amount of contraband. 2. Search incident to a lawfitl arrest. The Commonwealth contends separately that the search of Valle's car proceeded as incident to a substantially contemporaneous lawful arrest.
2

However, the Commonwealth did not adequately raise the issue of search incident to arrest below and, therefore, has waived the issue on appeal. See Commonwealth v. Robie, 51 Mass.App.Ct. 494, 499 (2001) (because the issue of the exit order was not raised below and the defendant did not alert the motion judge to the argument, the waiver doctrine precludes him from doing so on appeal). See also Commonwealth v. Bettencourt, 447 Mass. 631, 633-634 (2006). *3 Under Massachusetts standards, an argument must consist of a line of reasoning supported by reference to some authority. See 20ra v.. State Ethics Commn., 415 Mass. 640, 642 n. 3 (1993), and cases cited. In this instance, neither the defendant nor the Commonwealth filed a written memorandum with the motion judge so as to preserve this potentially significant question clearly for the study of that judge and for appellate review. The motion judge provided the attorneys with the interval of the week between the first and second days of the suppression hearing for the preparation of their arguments of law. On the second day of the suppression hearing, the prosecutor referred briefly to an independent source of probable cause for the search. However, she did not clearly characterize it as either a search incident to a lawful arrest or as a search within the automobile exception to the warrant requirement by reason of the defendant's probable operation of a motor vehicle while under the influence of drugs or alcohol. When the judge asked the prosecutor for authority for the alternate basis of search of the car, she replied that Commonwealth v. Garden was supportive. Under Commonwealth v. Garden, 451 Mass. 43, 47-48 (2008), the odor of marijuana alone furnished police with probable cause to search an automobile without a warrant. The judge viewed Garden as inapplicable and apparently as repetitive of prior argument concerning the effect of St.2008, c. 387. In the absence of a written memorandum, of specific reference to the doctrine of search incident to a lawful arrest, of specific reference to the automobile exception, and of citation to appropriate precedents, the prosecutor did not provide the motion judge with adequate articulation of a separate basis for search of the car now characterized on appeal as a search incident to a lawful arrest. See Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982) ("An issue not fairly raised before the trial judge will not be considered for the first time on appeal"). See also Commonwealth v. Rivera, 425 Mass. 633, 636-637 (1997). 3. The exit order. The Commonwealth challenges also the motion judge's fmding that the exit order was not justified. It

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Com. v. Valle, 80 Mass.App.Ct. 1115 (2011) 956 N.E.2d 1265 argues that the exit order was proper under either theory of the search discussed supra. A lawful exit order requires evidence showing either (I) that the officer had a reasonable reasonable suspicion belief that his safety or that of others was at stake; (2) that there was of criminal activity; or (3) that the exit valid search of the and the motion disposes of order served to facilitate an independently

4. Breathalyzer result. Finally, we affirm also the exclusion

of the station house breathalyzer reading. It resulted from the to the station. In tum, the had its origin arrest and transport of the defendant the incriminating

arrest arose from the invalid search of the car. Consequently, blood alcohol measurement tree. also in the roots of the poisonous

car. See Commonwealth v. Cruz, 459 Mass. at 466-467, cases cited. As to the first possible justification, during the traffic stop. Our foregoing the second and third justifications discussion

*4 Order allowing motion to suppress affirmed.

judge explicitly found that no evidence indicated a safety risk

Parallel Citations
956 N.E.2d 1265 (Table), 2011 WL 5421108 (Mass.App.Ct.)

for an exit order. 3

Footnotes As discussed in/i'a, the Commonwealth concedes that this issue became moot during the pendency of appeal as a result of the Supreme Judicial Court's decision in Commonwealth v. Cruz, 459 Mass. 459 (2011).

The Cruz decision was issued following the passage of "An Act establishing a sensible State marihuana policy," which reduced the possession of one ounce or less of marijuana from a criminal offense to a civil infraction. This Act is codified at G.L. c. 94C, 32L-32N, and became effective on December 4,2008. See S1.2008, c. 387.

SS

"Given our conclusion that G.L. c. 94C, SS 32L-32N, has changed the status of possessing one ounce or less of marijuana from a crime to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justifY an exit order." Commonwealth Cruz, 459 Mass. at 472. v.

End of Document

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OOOO~9

us. Department

of Justice

Office of the Deputy Attorney Genera]

H+ishingJun

D.C.

2fl5:'/O

October 19. 2009

!vlEMORANDUM .EOJ(.,S}:;LEkrrED "lJNrI'ED STATES ATTORNEYS

<"',

~.v:;,qy:----

FROM:

David W. Ogd(~ll)
Deputy Attorney General

SUBJEC'[':

Investigations and Prosecutions in Slates t\uthoriz(rrgthe Medical Use of Marijuana,

Thismemoranclum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical usc ofnlm'ijuana. 'I'hese laws vary in their substantiv(~ provisions ane! in the extent of state regulatory oversight, both among the enacting States and among local jurisdicTions within those States. Rather than developing diJTerem guidelines f()r every possible variant of state anc1local law, this menl0ranc1um provides uniform guidance to focus federal investigations and prosecutions in these States on core federal ClJforcelnent priorities. T'hc Departrncnr of Justice is committed to the enforcement of the Controlled Substances thannarijuana is a dangerous drug, and the illegal distribution and sale ofrnarijuanu is a serious crime and provides a significant source ofrevenue to largc ..scale criminal enterprises, gangs, and cartels. One timely example underscores the inlportance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the l.Jnited Stmes rernains the single largest source of revenue for the Mexican cmtels.
/\d in all States. Congress hasdctennincd

The Department is also committed to making efficient and rational use of its limited investigative and prosecUloria.l resources. Tn general,Unitecl States Attorneys are vested with "plenary authority \-vith regard to federal criminal matters" within their districts, USAM9-2.001. In exercising this authority, United States Attorneys are'"invested byslatute and delegation fi'om the Attorney Cj-cneralwith the broadest discretion in the exercise of such authority," ld. This authority should, of course, be exercised consistent with Department priorities and guidance, The prosecution of signincant traffickers ofiIlegal clmgs, including marijuana. and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutoria! resources shoulclhe directed towards these objectives. As a general matter. pursuit of these priorities should not focus federal resources in vour States on
. _---_.-_ ... __ .'. ... ,41

000050

Memorandum for Selected United States Attol11eys Page 2 Subject: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

individualswbose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient usc of limited federal resources. On the other hand, prosecution of commercial enterprises that unla\\'fully market and sell marijuana for profit continues to be an enforcement priority of the Department. -1'0 be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department's core enforcement priorities. 'fypically, vv'hen any of the folIowing characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking acti vity of potential federal interest:

unlawful possession or unlawful use of firearms; violence: . sales (0 minors; financial and marketing activities inconsistent with the terms, conditions, or purposes of state 1m\', including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law; amounts of marijuana inconsistent with purpOlted compliance \vith state or local la\\'; illegal possession or sale of other controlled substances; or ties to other criminal enterprises .

Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department's authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federalpropelty. Thisguidance regarding resource allocation does not "legalize" marijuana or provide a legal defense toa violation of federal law, nor is it intended to create any privileges, benefits, orrights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one 01' all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide. to the exercise of investigative andprosecutorial discretion.

00005.1

Memorandum J{)J" Selected United States Attorneys Page 3 Subject: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the produ cti 011or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves importantJederal interests. Your of1ices should continue to review marijuana cases for prosecution on a case-by-case basis, consistent \vith the guidance on resource allocation and federal priorities set forth herein, the consideration of requests for federal assistance from state and 10ca] law enforcement authorities, and the Princi pies of Federal. Prosecution.

cc: All United States Attorneys Lanny A. Breuer Assistant Attorney General Criminal Division B. Todd Jones United States Attorney District of Minne50ta Chair, Attol11ey General's Advisor)' Committee Michele M. Leonhart Acting Administrator Drug Enforcement Administration H. Marshall Jarrett Director Executive Office for United States Attorneys Kevin L. Perkins
Assistant Director

Criminal Investigative Division Federal Bureau of Investigation

000052

CERTIFICATE OF COMPLIANCE WITH RULES OF COURT PURSUANT TO MASS.R.APP.P. Rule 16(k)

I, Brian the

J.

Anderson, /

hereby

certify

that the Brief with the rules

of of

defendant

appellee

complied

court but

that pertain not limited findings to the

to the filing to,

of briefs, Rule

including, 16(a) (6) 16(e) of

of

MAss. R .App .P .

(pertinent (references statutes, briefs) ;

or memorandum record);

of decisions);

16(f)

(reproduction (length

rules,

regulations) ; Rule 18

16 (h)

MAss.R . App .P . 20

(appendix) ; appendices,

and and

MASS.R.App.P. Rule other papers) .

(form of briefs,

Date:

3/7/13 BRIAN

000053