With its ruling in Commonwealth v. Cruz last month, No. SJC-10738 (April 19, 2011), the Massachusetts Supreme Judicial Court (SJC) reversed a decades long trend in state and federal courts of on-going erosion of 4th amendment safeguards against unreasonable searches and seizures. In Cruz, the SJC ruled that an odor of burnt marijuana inside a car does not, standing alone, give rise to a reasonable suspicion or probable cause justifying an exit order by police. To be sure, the SJC’s decision did nothing to undercut the "automobile exception" to the constitutional proscriptions against warrantless searches of personal property and realty first recognized more than seventy-five years ago by the U.S. Supreme Court in Carrol v United States, 267 U.S. 132 (1925), and more recently reiterated by the SJC inCommonwealth v. Cast, 407 Mass. 891 (1990). Indeed, the inherent mobility of a motor vehicle on a public way is still seen as justifying a warrantless search of any automobile when the 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 a warrant impracticable", see Cast at 901, and drivers both young and old need to remain mindful of this. Moreover, observations by police of suspicious conduct during a valid traffic stop still provide justification to detain a vehicle and its occupants for further investigation, see Commonwealth v. Feyenord, 445 Mass. 72 (2005), and an exit order is justified "if a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger", see Commonwealth v. Gonsalves, 429 Mass. 658 (1999); all of which can happen without a warrant. Nonetheless, with Cruz, the SJC did say that in view of the Massachusetts voters’ decriminalization of possession of under an ounce of marijuana, it is unreasonable for the police to order a suspect out of a car in order to conduct a warrantless search for contraband based solely on detection of an odor of marijuana because the odor (of marijuana) alone does not give rise to probable cause to conclude that a criminal amount, i.e. an ounce or more, of contraband was present. Notwithstanding the fact that operating a motor vehicle under the influence of marijuana is a crime under Mass. Gen. Laws ch. 90 § 24, there is inherent logic to the Court deciding that if you don’t have enough objective facts to discern whether or not an actual crime is being committed warrantless exceptions cannot apply. Still, it is important to note the Court’s extremely limited holding in Cruz. Yes, by extension, what is meant by "suspicious activity" will now fall under even closer scrutiny as a result of the SJC’s decision in Cruz, but add additional articulated facts and observations that justify the police believing that an actual crime has occurred, or is occurring, inside the motor vehicle and Cruz changes nothing. Nothing at all.
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