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SJC-11481

               COMMONWEALTH   vs.   MATTHEW W. OVERMYER.



            Berkshire.    March 3, 2014. - July 9, 2014.

     Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly,
                           & Lenk, JJ.


Controlled Substances. Narcotic Drugs. Constitutional Law,
     Narcotic drugs, Search and seizure, Reasonable suspicion,
     Probable cause. Probable Cause. Search and Seizure, Motor
     vehicle, Reasonable suspicion, Probable cause.



     Complaint received and sworn to in the Pittsfield Division
of the District Court Department on May 21, 2012.

     A pretrial motion to suppress evidence was heard by Jacklyn
M. Connly, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Cordy, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.


     John P. Bossé, Assistant District Attorney, for the
Commonwealth.
     Janet H. Pumphrey for the defendant.
     The following submitted briefs for amici curiae:
     Ester J. Horwich & Justin R. Dashner for Committee for
Public Counsel Services.
                                                                        2


     Steven S. Epstein & Marvin Cable for National Organization
for the Reform of Marijuana Laws.


     LENK, J.    In Commonwealth v. Cruz, 459 Mass. 459, 472

(2011) (Cruz), we held that, in the wake of the 2008 ballot

initiative decriminalizing possession of one ounce or less of

marijuana (2008 initiative), "the odor of burnt marijuana alone

cannot reasonably provide suspicion of criminal activity."       This

case requires us to resolve a question not explicitly answered

in Cruz, supra:    whether the smell of unburnt, as opposed to

burnt, marijuana suffices to establish probable cause to believe

that an automobile contains criminal contraband or evidence of a

crime. 1   Here, where police searched the defendant's vehicle

after seizing a "fat bag" of marijuana from the glove

compartment, and after perceiving an odor of unburnt marijuana,

we hold that such odor, standing alone, does not provide

probable cause to search an automobile.    Because it is not clear

on this record, however, whether police had probable cause to

arrest the defendant for criminal possession of marijuana on the

basis of the marijuana seized from the glove compartment, we

remand the matter to the District Court for further proceedings

on that issue.

     1
       We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the National
Organization for the Reform of Marijuana Law on behalf of the
defendant.
                                                                       3


     1.   Background.    We summarize the facts found by the judge

after an evidentiary hearing on the defendant's motion to

suppress marijuana found in his vehicle and statements made to

police, supplemented by uncontested facts in the record.      See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008).      Two Pittsfield police officers testified at

the hearing.

     On May 19, 2012, at approximately 4:30 P.M., Officers Sean

Klink and James McIntyre of the Pittsfield police department

responded to the scene of a motor vehicle collision.      They

observed that the vehicle operated by the defendant, a Volvo,

had rear-ended a minivan.      After seeking to assure the well-

being of the occupants of the minivan, the officers turned their

attention to the defendant, who was seated at the side of the

road.

     Both officers noticed a very strong odor of unburnt

marijuana near the location of the Volvo, and Klink asked the

defendant if any was present in his vehicle.      Acknowledging that

there was marijuana in the Volvo, the defendant gave Klink the

keys to the glove compartment.      Klink found what he described as

a "fat bag" of marijuana, which was "rather large," inside the

glove compartment. 2


     2
       There was no evidence before the judge as to the actual
weight of the marijuana found in the "fat bag."
                                                                    4


     After retrieving the bag from the glove compartment, the

officers still perceived a strong smell of marijuana, and, based

on their training and experience, 3 believed that an unspecified

amount of marijuana remained present in the Volvo.   The officers



     In cases where the weight of seized marijuana is not
immediately evident, we note that the Executive Office of Public
Safety and Security has advised that, if

     "portable scales are not available, [police] have the
     option of taking the suspect's information and
     releasing him while also instructing him that he will
     receive something in the mail. When police return to
     the station, they may weigh the marijuana. If the
     weight is more than an ounce, the suspect may be
     summonsed to court on a criminal complaint. If the
     weight is an ounce or less, a citation may be mailed
     to the suspect within [fifteen] days of the offense."

Question 2 Law Enforcement Q&A, Executive Office of Public
Safety and Security (2014), at
http://www.mass.gov/eopss/law-enforce-and-cj/law-
enforce/question-2-law-enforcement-q-and-a.html (last
viewed July 7, 2014).
     3
       Pittsfield police Officer James McIntyre testified that he
had been exposed to the odors of both burnt and unburnt
marijuana during training at the police academy, and that he had
completed two three-week assignments with the Pittsfield police
drug enforcement unit during his twenty-five years as a police
officer. He also had assisted with at least one dozen arrests
involving marijuana, and is familiar with the smell of the
substance based on the proximity of his desk at the police
station to the drug evidence lockers.

     Pittsfield police Officer Sean Klink testified that he had
completed drug training at the police academy as well as
training with the Pittsfield police department that consisted of
"go[ing] inside [the] drug evidence locker with drug detectives
and learn[ing] about the different drugs." In his five years as
a police officer, Klink had participated in the execution of
about ten search warrants involving marijuana and had carried
out more than twenty "arrests in general."
                                                                     5


did not observe anything else indicating the presence of

marijuana.   Klink gave the defendant Miranda warnings before

asking whether the vehicle contained additional marijuana.     The

defendant denied that it did, but eventually admitted that there

was more marijuana in the Volvo after Klink "intimat[ed] that a

[canine] unit would be on its way."   Klink later placed the

defendant under arrest and took him into custody; the

defendant's vehicle was towed to the police station.

     At some point, 4 McIntyre located a backpack on the back seat

of the vehicle.   The backpack contained two large freezer bags,

which in turn contained smaller, individually wrapped packages

of marijuana.   A criminal complaint issued against the defendant

two days later, charging him with possession of marijuana with

intent to distribute, G. L. c. 94C, § 32C (a), and commission of

this offense within a school or park zone, G. L. c. 94C, § 32J.

     The judge determined that the strong odor of unburnt

marijuana initially perceived by police "triggered a suspicion"

that more than one ounce was present in the vehicle, such that

Klink was warranted in asking the defendant whether he possessed


     4
       The record is unclear whether the officers searched the
back seat of the Volvo before or after the defendant's admission
that the vehicle contained more marijuana, or his eventual
arrest. The judge noted that it was "unclear from [the
officers'] testimony when the defendant admitted there was more
marijuana in relation to when McIntyre went into the car, but it
[was] clear [the defendant] was detained further after the
marijuana in the glove box was found."
                                                                    6


marijuana, and in retrieving the "fat bag" from the glove

compartment at the defendant's direction.    Therefore, the judge

denied the defendant's motion to suppress as to the "fat bag."

     The judge also ruled that, once the defendant turned over

the "fat bag" from the glove compartment, the officers were not

justified in searching the back seat of the defendant's vehicle.

"There [were] no other articulable facts to base a reasonable

suspicion that the defendant was engaged in criminal activity,

or that there were other drugs present"; the defendant made no

suspicious gestures, and there were no other indicia of the sale

or manufacturing of marijuana. 5   Thus, the judge decided that the

officers' disbelief of the defendant's denials that there was

additional marijuana in the vehicle was a "hunch," invalidating

the ensuing search of the back seat of the vehicle.    As a

result, she ordered suppressed the bags of marijuana found in

the backpack, as well as the defendant's statements to police

after the discovery of the backpack.

     The single justice allowed the Commonwealth's application

for leave to pursue an interlocutory appeal to the Appeals

Court, and we transferred the matter to this court on our own

motion.



     5
       The judge made no findings whether the officers reasonably
believed that the "fat bag" contained more than one ounce of
marijuana.
                                                                     7


     2.   Discussion.   The Commonwealth argues that the smell of

marijuana supported probable cause to search the back seat of

the defendant's vehicle, rendering the search proper under the

automobile exception to the warrant requirement. 6   The

Commonwealth contends that these circumstances differ from those

in Cruz, supra, because that case involved the smell of burnt

marijuana, whereas the officers in this case perceived an odor

of unburnt marijuana.

     Under the automobile exception to the warrant requirement,

a warrantless search of an automobile is constitutionally

permissible if the Commonwealth proves that officers had

probable cause to believe that there was contraband or specific

evidence of a crime in the vehicle.    See Commonwealth v. Daniel,

464 Mass. 746, 750-751 (2013); Commonwealth v. Motta, 424 Mass.

117, 122 (1997).   However, the "'ultimate touchstone' of both

the Fourth Amendment [to the United States Constitution]and art.

14 [of the Massachusetts Declaration of Rights] is

reasonableness," Commonwealth v. Entwistle, 463 Mass. 205, 213

(2012), cert. denied, 133 S. Ct. 945 (2013), quoting

Commonwealth v. Townsend, 453 Mass. 413, 425 (2009).       We have

     6
       Because reasonable suspicion is a less demanding standard
than probable cause, see Commonwealth v. Smigliano, 427 Mass.
490, 492 (1998), implicit in the judge's finding that the
officers lacked a reasonable suspicion that the defendant was
engaged in criminal activity is that they also lacked probable
cause to search the vehicle under the automobile exception to
the warrant requirement.
                                                                    8


determined that "[i]t is unreasonable for the police to spend

time conducting warrantless searches for contraband when no

specific facts suggest criminality."   Cruz, supra at 477.

Because the 2008 initiative reclassified possession of one ounce

or less of marijuana as a civil violation, and abolished the

attendant criminal consequences, we held in Cruz, supra at 469-

472, that the odor of burnt marijuana alone no longer

constitutes a specific fact suggesting criminality.

Accordingly, such an odor alone does not constitute probable

cause to believe that a vehicle contains a criminal amount of

contraband or specific evidence of a crime, such that the

automobile exception to the warrant requirement may be invoked.

See Commonwealth v. Daniel, supra at 750-752; Cruz, supra at

475-476.

     Here, the judge found that the odor of unburnt marijuana

did not justify the officers' search of the back seat of the

vehicle.   The judge determined that, once the defendant

surrendered the "fat bag" of marijuana from the glove

compartment, the officers' belief that there was more to be

found in the vehicle was merely a "hunch."   There was nothing to

suggest that the marijuana in the "fat bag" did not itself

account for the smell the officers perceived.   Although the

Commonwealth argues, quoting Commonwealth v. Skea, 18 Mass. App.

Ct. 685, 690 n.8 (1984), that "[i]t is widely accepted that the
                                                                   9


discovery of some controlled substances gives probable cause to

search for additional controlled substances in the vicinity,"

our decisions since 2008 have rejected that proposition as to

marijuana.   See Commonwealth v. Pacheco, 464 Mass. 768, 771-772

(2013) (presence of less than one ounce of marijuana in vehicle

did not give rise to probable cause to search it for additional

marijuana); Commonwealth v. Jackson, 464 Mass. 758, 766 (2013)

(observation of defendant with marijuana cigarette did not give

rise to probable cause to search person); Commonwealth v.

Daniel, supra at 751-752 (defendant's surrender of two small

bags of marijuana totaling less than one ounce did not give rise

to probable cause to search vehicle);.

     Massachusetts cases since 2008 also have recognized the

dubious value of judgments about the occurrence of criminal

activity based on the smell of burnt marijuana alone, given that

such a smell points only to the presence of some marijuana, not

necessarily a criminal amount. 7   See Commonwealth v. Pacheco,

supra at 771-772; Commonwealth v. Daniel, supra at 750-752;

Cruz, supra at 472; Commonwealth v. Fontaine, 84 Mass. App. Ct.

     7
         General Laws c. 94C, § 32L, provides in relevant part:

          "Notwithstanding any general or special law to
     the contrary, possession of one ounce or less of
     marihuana shall only be a civil offense, subjecting an
     offender who is eighteen years of age or older to a
     civil penalty of one hundred dollars and forfeiture of
     the marihuana, but not to any other form of criminal
     or civil punishment or disqualification."
                                                                     10


699, 706 (2014).   Although the odor of unburnt, rather than

burnt, marijuana could be more consistent with the presence of

larger quantities, see Cruz, supra at 469 n.15, citing

Commonwealth v. MacDonald, 459 Mass. 148, 150-153 (2011), it

does not follow that such an odor reliably predicts the presence

of a criminal amount of the substance, that is, more than one

ounce, as would be necessary to constitute probable cause.     See

Commonwealth v. Antobenedetto, 366 Mass. 51, 56 n.2 (1974) ("The

foundation of probable cause must be specific data, the

reliability of which could be judged by a magistrate").

     The officers in this case detected what they described as a

"strong" or "very strong" smell of unburnt marijuana.    However,

such characterizations of odors as strong or weak are inherently

subjective; what one person believes to be a powerful scent may

fail to register as potently for another.   See Doty, Wudarski,

Marshall, & Hastings, Marijuana Odor Perception:   Studies

Modeled from Probable Cause Cases, 28 Law & Hum. Behav. 223, 232

(2004) (identifying traits such as gender and age that may

influence ability to smell).   Moreover, the strength of the odor

perceived likely will depend on a range of other factors, such

as ambient temperature, the presence of other fragrant

substances, and the pungency of the specific strain of marijuana

present.   See State v. Pollman, 286 Kan. 881, 894 (2008) ("the

strength of the smell is subjective and also depends on factors
                                                                  11


such as masking agents [chewing gum, mints, tobacco products]

and the environment where the odor is detected"); Doty,

Wudarski, Marshall, & Hastings, supra at 231-232 (participants

in experiment displayed weaker ability to detect odor of

immature female marijuana plant as compared to that of mature

plant, and ability to discern smell was affected by presence of

diesel exhaust fumes; temperature also can influence potency of

odor perceived).   As a subjective and variable measure, the

strength of a smell is thus at best a dubious means for reliably

detecting the presence of a criminal amount of marijuana.

     Although it is possible that training may overcome the

deficiencies inherent in smell as a gauge of the weight of

marijuana present, see Doty, Wudarski, Marshall, & Hastings,

supra at 232, there is no evidence that the officers here had

undergone specialized training that, if effective, would allow

them reliably to discern, by odor, not only the presence and

identity of a controlled substance, but also its weight.

Indeed, in somewhat related cases that turn on the sense of

smell, such as those involving canine alerts and canine tracking

evidence, we have required that a sufficient foundation be laid

as to the canine's ability before the evidence may be admitted

at trial.   See Commonwealth v. Taylor, 426 Mass. 189, 197-198

(1997) (canine tracking evidence properly admitted where

appropriate foundation established its reliability);
                                                                    12


Commonwealth v. LaPlante, 416 Mass. 433, 440 n.10 (1993)

(sufficient foundation for consideration of canine tracking

evidence includes qualifications of handlers and canines, their

training, and number of successful tracks).    Similarly, Federal

courts, including the United States Supreme Court, have required

that probable cause determinations based on canine alerts be

supported by evidence of the canine's reliability.    See Florida

v. Harris, 133 S. Ct. 1050, 1057-1058 (2013) (court can presume

that dog's alert provides probable cause to search "[i]f a bona

fide organization has certified a dog after testing his

reliability in a controlled setting," but defendant must be

given opportunity to challenge evidence of dog's reliability);

United States v. Owens, 167 F.3d 739, 749 (1st Cir.), cert.

denied, 528 U.S. 894 (1999), citing United States v. Race, 529

F.2d 12, 14 (1st Cir. 1976) ("The existence of probable cause

based on an alert by a drug dog depends upon the dog's

reliability").

     In sum, we are not confident, at least on this record, that

a human nose can discern reliably the presence of a criminal

amount of marijuana, as distinct from an amount subject only to

a civil fine.    In the absence of reliability, "a neutral

magistrate would not issue a search warrant, and therefore a

warrantless search is not justified based solely on the smell of
                                                                       13


marijuana," whether burnt or unburnt.       Commonwealth v. Daniel,

supra at 751, citing Cruz, supra at 475-476.

     The judge correctly determined, therefore, that the odor of

unburnt marijuana did not justify the search of the back seat of

the defendant's vehicle under the automobile exception to the

warrant requirement.     However, she did not specifically address

whether the seizure of the "fat bag," if reasonably thought to

weigh more than one ounce, would support probable cause to

arrest the defendant, thereby providing an independent basis for

the warrantless search.       See Commonwealth v. Perkins, 465 Mass.

600, 605 (2013), quoting Arizona v. Gant, 556 U.S. 332, 346

(2009) (police may search automobile incident to arrest of its

driver where arrestee "is within reaching distance of the

vehicle or it is reasonable to believe the vehicle contains

evidence of the offense of arrest").       In this regard, the judge

did not make findings necessary to a determination whether there

was probable cause to arrest the defendant for possession of the

"fat bag," including whether the officers had a reasonable

belief that the "fat bag" contained more than one ounce of

marijuana. 8

     3.    Conclusion.   The order allowing the defendant's motion

to suppress is vacated.       The case is remanded to the District

Court for a determination, after any hearings the judge deems

     8
         See note 2, supra.
                                                                14


necessary, whether the officers had probable cause to arrest the

defendant on the basis of the marijuana seized from the glove

compartment.

                                   So ordered.
