Reasonable suspicion goes up in smoke with latest SJC decision; smell of burnt marijuana alone insufficient for motor vehicle stops

Last week, Massachusetts' highest court, the Supreme Judicial Court ("SJC"), came down with a decision that has left police officers and other law enforcement scratching their heads. In order to stop a vehicle, law enforcement must have "reasonable suspicion" (i.e. articulable facts and reasonable inferences drawn therefrom, other than a "mere hunch") that a crime or civil motor vehicle infraction has been committed in order to stop a vehicle. In Commonwealth v. Rodriguez, SJC-11814, the SJC held that the smell of burnt marijuana, alone, is insufficient to establish reasonable suspicion in order to effect a traffic stop, "because there is no obvious and direct link between enforcement of the civil penalty for marijuana possession and maintaining highway safety." In other words, even if a police officer can smell the joint in a suspect's vehicle, they cannot pull that person over unless they have more information suggesting a crime (or a civil motor vehicle infraction) has been, or is being, committed.

To some extent, that the SJC has moved in this direction is unsurprising in light of their recent decisions since the possession of less than an ounce of marijuana was decriminalized by voter referendum in 2008. For example, in Commonwealth v. Cruz, 459 Mass. 459, 470 (2011), the SJC held the smell of either burnt or unburnt marijuana, alone, is insufficient to order a person out of their vehicle after a lawful stop. Similarly, in Commonwealth v. Overmyer, 469 Mass. 16, 23 (2014), the SJC held that the odor of burnt or unburnt marijuana, alone, is insufficient to establish probable cause to search a vehicle without a warrant. The rulings in Cruz, Overmyer, and more recently in Rodriguez, are in line with recent Supreme Court decisions which have limited law enforcement's ability to search vehicles and any closed containers found therein. See Arizona v. Gant, 556 U.S. 332 (2009) (Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest); United States v. Jones, 565 U.S. ___ (2012) (holding that a warrant is required if police wish to install a GPS unit on an individual's vehicle).

As a criminal defense attorney who routinely handles these types of cases, I'm pleased the SJC appears committed to showing an unwillingness to accept knee-jerk recognition of the concept that the inherent mobility of a vehicle renders it wholly vulnerable/susceptible to warrantless intrusion. Still, as a former state and federal prosecutor, I can also see why law enforcement is upset by it. Driving under the influence is still a crime in MA and drunk/intoxicated driving remains a huge public safety issue. From police's perspective, what could provide more reasonable suspicion to believe someone might be operating under the influence of marijuana than seeing/smelling a waft of smoke emanating from their idling vehicle?

The SJC's answer to this exact question seems specious and non-persuasive; indeed, they address the issue merely in a footnote to their opinion. The Court begins by paying lip service to the threat of OUI by saying, "[d]riving while under the influence of marijuana is a serious offense that may well present safety hazards requiring the immediate involvement of police." But the Court goes on to say the mere fact that a vehicle driver or passenger possesses marijuana does not mean that the driver has been operating while impaired." That's it? Is that really the strongest argument the highest court in the Commonwealth can muster to justify their position that the smell of burnt marijuana does not lead one to reasonably suspect that the driver is operating their vehicle impaired? Does this now mean that the "mere odor" of alcohol cannot justify a stop based on OUI, and isn't there now an inherent inconsistency since the Massachusetts Appeals Court previously held, in Commonwealth v. Bazinet, 76 Mass. App. Ct. 908 (2010) that the "mere odor of alcohol [is] sufficient [to establish] reasonable suspicion"? Has Bazinet now been abrogated, and if so, why did the SJC fail to mention it in their opinion? Does this now open the door further to defense attorneys like me who routinely handle OUI cases to argue that a visible open container violation doesn't provide probable cause either?

I'm not arguing that the smell of burnt marijuana, alone, cannot lead one to reasonably believe the vehicle's operator isn't under the influence. It certainly can. The operator's person may have been exposed to second-hand marijuana smoke just having come from a party where others were smoking; perhaps his passenger was the one who had been smoking. I know I for one, would argue just this, and forcefully, were I representing a person in the same situation. But in Rodriguez, the police officer in question could actually smell the burnt marijuana emanating from a moving vehicle! Now don't get me wrong. As a criminal defense attorney, I'm all for courts expanding Constitutional protections and guarding against unreasonable government intrusion and violation(s) of our sacred privacy rights. Because of my job, I enthusiastically applaud the SJC's willingness to tip the scales in favor of individual freedoms and create more opportunities for us defense attorneys to protect and defend our clients. However, because I have to drive, a lot, to do my job, I also can't help but be a little concerned that law enforcement's ability to ensure the roads are safe for all of us has just been slightly undermined.