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SJC-11436

                 COMMONWEALTH   vs.   ANTHONY CRAAN.



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

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


Controlled Substances. Narcotic Drugs. Constitutional Law,
     Narcotic drugs, Search and seizure, Investigatory stop,
     Probable cause. Search and Seizure, Motor vehicle,
     Threshold police inquiry, Probable cause, Search incident
     to lawful arrest. Threshold Police Inquiry. Probable
     Cause. Practice, Criminal, Motion to suppress.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on August 6, 2010.

     A pretrial motion to suppress evidence was heard by
Rosalind Henson Miller, J., and a motion for reconsideration was
also heard by her.

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


     Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
     Brian J. Anderson for the defendant.
     The following submitted briefs for amici curiae:
                                                                     2


     William W. Adams for Ardil Innis.
     Donald Bronstein, Committee for Public Counsel Services,
Joshua Levy, Matthew Mazzotta, & Matthew R. Segal, for American
Civil Liberties Union of Massachusetts & another.
     Michael D. Cutler & Steven S. Epstein for National
Organization for the Reform of Marijuana Law.


     LENK, J.    In this case, we are asked again to determine the

effect of the 2008 ballot initiative decriminalizing possession

of one ounce or less of marijuana (2008 initiative) on police

authority to conduct warrantless searches of vehicles, this time

in the context of a search effected on the basis of the odor of

unburnt marijuana. 1

     The defendant's vehicle was searched at a sobriety

checkpoint on June 11, 2010, after a State police trooper

smelled the odor of unburnt marijuana emanating from it.     The

search revealed both loose marijuana and plastic baggies

containing marijuana residue, in addition to three "Ecstasy"

pills (methylenedioxy methamphetamine) and several rounds of

ammunition.     The search was based on the odor of marijuana

alone; the defendant exhibited no signs of impairment and,

although issued a summons for criminal offenses, was permitted

to drive away without being asked to submit to any field

sobriety tests.    Approximately two months later, however, a

     1
       We acknowledge the amicus briefs submitted on behalf of
the defendant by the American Civil Liberties Union of
Massachusetts and the Committee for Public Counsel Services; the
National Organization for the Reform of Marijuana Law; and Ardil
Innis.
                                                                      3


criminal complaint issued charging the defendant with various

drug- and firearms-related offenses.

     A judge of the Boston Municipal Court initially denied the

defendant's motion to suppress the fruits of the search, namely,

the marijuana, Ecstasy pills, and ammunition.   Several months

later, in light of Commonwealth v. Cruz, 459 Mass. 459 (2011),

the judge reconsidered her ruling and allowed the motion to

suppress.   A single justice of this court subsequently allowed

the Commonwealth's application for leave to pursue an

interlocutory appeal in the Appeals Court, and we transferred

the case to this court on our own motion.

     The Commonwealth maintains that the search was justified on

three different grounds.   First, it was lawful because the

search was conducted incident to the defendant's arrest.

Second, the search was permissible because it was to prevent the

defendant from smoking marijuana while driving.     And, third, the

search was lawful because it fell under the automobile exception

to the warrant requirement, insofar as there was probable cause

to believe that the defendant's vehicle contained evidence of a

Federal crime.   Considering this case in conjunction with our

decision in Commonwealth v. Overmyer, ante      ,      (2014), we

reject these contentions and affirm the judge's order allowing

the motion to suppress.
                                                                    4


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

after an evidentiary hearing, supplemented by uncontested facts

in the record.   See Commonwealth v. Isaiah I., 448 Mass. 334,

337 (2007), S.C., 450 Mass. 818 (2008).    The only witness at

that hearing was the State police trooper who conducted the

search at the sobriety checkpoint.    "In reviewing a ruling on a

motion to suppress, we accept the judge's subsidiary findings of

fact absent clear error 'but conduct an independent review of

[her] ultimate findings and conclusions of law.'"    Commonwealth

v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002).

     In the early morning hours of June 11, 2010, State police

were conducting a sobriety checkpoint 2 on Gallivan Boulevard in

the Dorchester section of Boston.    The testifying trooper was

responsible for stopping every passing vehicle to determine

     2
       In order to pass constitutional muster, "the selection of
motor vehicles to be stopped [at a sobriety checkpoint] must not
be arbitrary, safety must be assured, motorists' inconvenience
must be minimized and assurance must be given that the procedure
is being conducted pursuant to a plan devised by law enforcement
supervisory personnel." Commonwealth v. McGeoghegan, 389 Mass.
137, 143 (1983). See Delaware v. Prouse, 440 U.S. 648, 663
(1979). No evidence was adduced at the hearing concerning the
existence of a protocol governing the sobriety checkpoint in
question, or whether any such protocol addressed the use of
marijuana as well as alcohol. In any event, however, the
defendant did not challenge the legality of the sobriety
checkpoint below or on appeal. We assume for the sake of
discussion that the checkpoint met constitutional requirements,
and deem any arguments to the contrary waived. See, e.g., Carey
v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issues not
raised or argued below waived on appeal).
                                                                    5


whether the driver was operating it while under the influence of

alcohol.    One of the vehicles stopped was driven by the

defendant.    After the trooper identified himself, the defendant

rolled down the driver's side window to speak with him, at which

point the trooper smelled a strong odor of unburnt marijuana

emanating from the vehicle.

     The trooper asked the defendant to pull into the screening

area, and, once there, asked the defendant whether there was any

marijuana in the vehicle.    The defendant responded that he and

the vehicle's passenger "had just smoked some weed."    However,

after the trooper explained that he smelled unburnt, rather than

burnt, marijuana, the defendant opened the glove compartment to

reveal a "small plastic bag" containing a substance that the

trooper believed to be marijuana. 3   At that point, the trooper

ordered both the defendant and the passenger out of the vehicle

and proceeded to pat frisk them. 4

     The trooper then performed a search of the vehicle, which

uncovered, in the door on the driver's side, a device commonly

used for grinding marijuana; three blue pills, later identified

as Ecstasy; "some marijuana" in the center console; and, in the


     3
       The trooper did not testify whether he believed that the
bag contained more or less than one ounce of marijuana, and no
other evidence as to the weight of the marijuana was before the
judge.
     4
         No evidence was seized as a result of this pat frisk.
                                                                    6


passenger compartment, plastic baggies which appeared to contain

burnt marijuana residue.   The trooper also searched the trunk,

where he found rounds of .38 caliber ammunition.

     At the conclusion of the search, the trooper did not arrest

the vehicle's occupants, but rather issued summonses for

criminal offenses and released them.   A complaint subsequently

issued against the defendant, charging him with illegal

possession of ammunition, in violation of G. L. c. 269,

§ 10 (h) (1); possession of a class D substance with the intent

to distribute, in violation of G. L. c. 94C, § 32C (a); and

possession of a class B substance, in violation of G. L. c. 94C,

§ 34.

     The judge determined that, based on his experience, the

trooper was qualified to recognize the odor of marijuana. 5   See

Commonwealth v. Garden, 451 Mass. 43, 48-49 (2008).   The judge

went on to rule that, because the passage of the 2008 initiative

did "not change the probable cause analysis," the scent of

marijuana still provided "probable cause to believe that

marijuana is nearby."   Although the judge found that there was

no basis to believe that more than one ounce of marijuana was


     5
       The trooper testified that, over his five years of service
for the State police, he encountered marijuana "on a very
regular basis," and had made approximately twenty or twenty-five
arrests related to marijuana. He also testified that, since
2008, he had issued between twenty and thirty civil citations
for possession of marijuana.
                                                                    7


present in the vehicle, she nevertheless concluded that the

warrantless search was justified under the automobile exception

to the warrant requirement.    The odor of unburnt marijuana

provided the basis for the search; although the odor did not

suggest the presence of a particular quantity of marijuana, it

did indicate the presence of some marijuana, which, the judge

stated, was still unlawful contraband after the 2008 initiative.

Therefore, the judge initially denied the defendant's motion to

suppress.

     The judge's initial ruling, however, predated our decision

in Commonwealth v. Cruz, 459 Mass. 459, 472, 475-476 (2011), in

which we held that, in view of the decriminalization of

marijuana occasioned by the 2008 initiative, "the odor of burnt

marijuana alone cannot reasonably provide suspicion of criminal

activity," nor can it give rise to probable cause to search a

vehicle under the automobile exception to the warrant

requirement.   After the release of this court's decision in that

case, the defendant moved for reconsideration of the judge's

ruling on his motion to suppress.    The judge allowed the motion

for reconsideration and thereafter reversed her initial ruling.

     2.   Discussion.   "Warrantless searches are presumptively

unreasonable, under both the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights."    Commonwealth v. Gouse, 461 Mass. 787, 792 (2012).
                                                                    8


"When a search is conducted without a warrant, the burden is on

the Commonwealth to show that the search 'falls within a narrow

class of permissible exceptions' to the warrant requirement."

Commonwealth v. Perkins, 465 Mass. 600, 603 (2013), quoting

Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974).

     Since the enactment of the 2008 initiative decriminalizing

the possession of one ounce or less of marijuana, we have held

that the odor of burnt marijuana alone cannot support probable

cause to search a vehicle without a warrant.     See Commonwealth

v. Cruz, supra at 475-476.    As we hold in a companion to this

case, neither can such probable cause rest solely on the odor of

unburnt marijuana.    See Commonwealth v. Overmyer, supra

at       .   The Commonwealth, however, offers several different

justifications for the presumptively unreasonable search of the

defendant's vehicle, separate and apart from the odor of

marijuana alone.    We address each in turn. 6


     6
       We focus primarily on the lawfulness of the search of the
defendant's vehicle, rather than the exit order, because it was
the search that yielded the evidence sought to be suppressed.
However, because, as the judge found, the basis for the search
was the odor of unburnt marijuana, and there was no other reason
to believe that a criminal amount of marijuana was present in
the vehicle, there was no reasonable suspicion of criminal
activity warranting an exit order. See Commonwealth v.
Overmyer, ante     ,     (2014); Commonwealth v. Cruz, 459 Mass.
459, 472 (2011). The other permissible grounds for an exit
order similarly were absent: there was no indication that the
trooper's safety was threatened, nor, as shall be discussed
infra, was the exit order justified "to facilitate an
independently permissible warrantless search of the car under
                                                                    9


     a.   Search incident to arrest.    The first rationale

proffered by the Commonwealth is that the trooper had probable

cause to arrest the defendant for operating his vehicle while

under the influence of marijuana, and therefore the search was

permissible as a search incident to arrest.     This argument,

however, overlooks a crucial fact:     neither the defendant nor

his passenger was arrested. 7

     A search incident to arrest, as the name suggests, may be

effected without a warrant when an arrest has taken place, in

order to "remove any weapons that the [arrestee] might seek to

use in order to resist arrest or effect his escape" or "to

search for and seize any evidence on the arrestee's person in

order to prevent its concealment or destruction."     Chimel v.

California, 395 U.S. 752, 762-763 (1969).     See Commonwealth v.

Santiago, 410 Mass. 737, 743 (1991).     Although a search may

precede a formal arrest, see id. at 742, quoting Commonwealth v.

Brillante, 399 Mass. 152, 154 n.5 (1987), the search and the

arrest "must be roughly contemporaneous."     Commonwealth v.

Washington, 449 Mass. 476, 481 (2007).




the automobile exception to the warrant requirement."     See
Commonwealth v. Cruz, supra at 467.
     7
       Nor, for that matter, was the defendant subsequently cited
for or charged with operating his vehicle while under the
influence.
                                                                  10


     Where no arrest is underway, the rationales underlying the

exception do not apply with equal force.   Indeed, "[t]o permit a

search incident to arrest where the suspect is not arrested

until much later, or is never arrested, would sever this

exception completely from its justifications" and effectively

"create a wholly new exception for a 'search incident to

probable cause to arrest.'"   Commonwealth v. Washington, supra

at 482, citing Commonwealth v. Alvarado, 420 Mass. 542, 554

(1995).   See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690

(1984), and cases cited ("Detentions for frisking, questioning,

routine traffic stops, and the like, where the detainee is

released after the police business is transacted, are treated as

'"seizures" of the person,' subject to Fourth Amendment scrutiny

. . . , but are differentiated from 'formal,' or 'custodial,'

arrests, the custodial aspect of which serves as the theoretical

justification for the incident search" [citations omitted]).

Given that it lacked the critical element of an arrest, the

search of the defendant's vehicle cannot be sustained as a

search incident to arrest.

     In any event, the testimony at the motion hearing would not

have supported a finding of probable cause to arrest the

defendant for operating a motor vehicle while under the
                                                                  11


influence of marijuana. 8   There was no evidence that the

defendant bore any of the classic indicia of impairment, nor did

the trooper administer a field sobriety test in order to gauge

the defendant's level of impairment, notwithstanding the fact

that the vehicle had been stopped at a sobriety checkpoint.     Cf.

Commonwealth v. Daniel, 464 Mass. 746, 756-757 (2013) ("[T]he

Commonwealth elicited no testimony that [the defendant] showed

any signs of impairment during [her] encounter [with police].

The officer did not testify that [the defendant's] eyes were red

or glassy, that her speech or movements were unusual, or that

her responses to questioning were inappropriate or

uncooperative.   He did not perform any tests to assess [the

defendant's] physical and mental acuity"[footnote omitted]).

     There was likewise no evidence that the defendant had been

driving erratically; indeed, the defendant's vehicle was stopped

pursuant to a systematic effort to stop every passing

automobile, and no other individualized reason for the stop was

given.   Contrast Commonwealth v. Bartlett, 465 Mass. 112, 117-

118 (2013) (police officer was justified in stopping defendant's

vehicle to determine whether he was operating it while under

influence of drugs or alcohol, where vehicle was observed


     8
       The 2008 initiative explicitly did not alter statutes
relating to operating a motor vehicle while under the influence
of marijuana. See G. L. c. 94C, § 32L; Commonwealth v. Daniel,
464 Mass. 746, 754 (2013).
                                                                   12


swerving erratically).      Although the defendant admitted to

having smoked marijuana earlier, the exact time at which he had

done so was not clear, and, prior to searching his vehicle, the

trooper observed no drug paraphernalia used to consume

marijuana.      Far short of arresting the defendant for operating a

motor vehicle while under the influence of marijuana, the

trooper in fact released the defendant, allowing him to continue

driving. 9

     Therefore, because the defendant was not arrested, and

because the trooper lacked probable cause to arrest him for

operating a motor vehicle while under the influence of

marijuana, the search of the defendant's vehicle was not

justified as a search incident to arrest.

     b.      Search in order to prevent defendant from smoking

marijuana while driving.      The Commonwealth contends that the

trooper was "duty-bound" to search the defendant's vehicle to

ensure that he would not "smoke additional marijuana while


     9
       The Commonwealth conceded at oral argument that evidence
that the defendant was operating while under the influence of
marijuana was "scant." The Commonwealth instead pursued the
novel claim that the State trooper was justified in searching
the vehicle where the defendant handed over a small amount of
marijuana in what the Commonwealth argued was an attempt to
"divert" the trooper's attention from the presence of other
criminal contraband in the vehicle. That the defendant intended
to distract the trooper by using the small amount of marijuana
in the glove compartment as a decoy is not supported by the
findings of the judge, and we decline to address such a
"diversion" theory on appeal.
                                                                   13


driving."   In this argument, the Commonwealth does not attempt

to fit the search within the parameters of the automobile

exception to the warrant requirement, nor could it; the

Commonwealth argues only that the odor of unburnt marijuana and

the presence of a small amount of marijuana in the glove

compartment suggested that "there could have been more."    The

mere possibility that more marijuana was present in the vehicle

does not amount to probable cause to believe that the defendant

had committed, or was committing, a crime, namely possession of

more than one ounce of marijuana.   See Commonwealth v. Johnson,

461 Mass. 44, 49 & n.6 (2011), citing Commonwealth v.

Antobenedetto, 366 Mass. 51, 53 (1974) (automobile exception to

warrant requirement permits search of vehicle where probable

cause supports search).   See also Commonwealth v. Daniel, supra

at 751-752 (defendant's surrender of two small bags of marijuana

did not give rise to probable cause to search vehicle).

     Instead, the Commonwealth maintains only that effectuating

a warrantless search of the vehicle was the appropriate

resolution of the choice facing the trooper, between searching

the defendant's vehicle or releasing him, with the possibility

that he could smoke additional marijuana while driving.    But,

notwithstanding this novel argument, there is no "Hobson's

choice" exception to the warrant requirement; that operating

while under the influence may be an "epidemic," as the
                                                                     14


Commonwealth argues, does not legitimate otherwise

unconstitutional searches.

       Moreover, there is no evidence that the defendant would

have smoked marijuana while driving had the trooper refrained

from searching his vehicle.     The trooper was adamant that it was

unburnt, rather than burnt, marijuana that he smelled,

suggesting that, prior to the stop, the defendant had not been

smoking while driving.     Similarly, as discussed supra, there is

no evidence that the defendant was impaired; the trooper

performed no tests to assess his physical and mental acuity and

permitted him to drive away.

       We are not persuaded by the Commonwealth's suggestion that

the search was permissible owing to the trooper's duty to ensure

the safety of the roadways and to prevent the mere potential

that the defendant could smoke marijuana while driving.    Were we

to conclude otherwise, it would follow necessarily that police

could search any vehicle containing sealed bottles of alcohol,

based on a potential risk that the driver could open a bottle

and begin drinking while driving.

       c.   Search pursuant to automobile exception, based on

probable cause to believe that defendant had violated Federal

law.    As a third possible justification for the search, the

Commonwealth suggests the automobile exception to the warrant

requirement, which provides that police may search an automobile
                                                                  15


where they have probable cause to believe that evidence of a

crime will be found therein.   See Commonwealth v. Johnson, supra

at 49 & n.6, citing Commonwealth v. Antobenedetto, supra at 53.

According to this theory, the search conformed to the

requirements of the automobile exception because the trooper had

probable cause to believe that evidence of a Federal crime,

namely, possession of marijuana, would be found inside the

defendant's vehicle, despite the absence of any Federal

involvement in the stop at issue.   This argument effectively

asks us to circumvent the "clear intent" of the voters who

enacted the 2008 initiative, which we identified in Commonwealth

v. Cruz, 459 Mass. 459, 464-465, 472 (2011), and to overrule the

holding of that case.   We decline to do so.

     We observe at the outset that State and local law

enforcement authorities are the creatures of statute, which may

be modified by the Legislature.   See Commonwealth v. Dugan, 12

Met. 233, 234 (1847) ("The office of a police officer is not one

known to the common law; it is created by statute, and must be

regulated and administered according to the statute").    It

follows that duly enacted laws may circumscribe police authority

to act.   See, e.g., Commonwealth v. Landry, 438 Mass. 206, 211

(2002) (in light of statute providing that it "shall not be a

crime" to participate in hypodermic needle exchange program,

police officer may not lawfully arrest individual bearing
                                                                  16


program membership card for violating provision regarding

unlawful possession of needles).   Thus, the 2008 initiative,

constituting as it does a valid exercise of legislative

authority, limited the scope of permissible police conduct with

regard to marijuana offenses by reclassifying possession of one

ounce or less as a civil violation.   See Commonwealth v. Cruz,

supra at 471-472 ("the entire statutory scheme [enacted by the

2008 initiative] also implicates police conduct in the field").

     Similarly, although the "general rule is that local police

are not precluded from enforcing federal statutes," Gonzales v.

Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other

grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.

1999), their authority to do so derives from State law.   See

Miller v. United States, 357 U.S. 301, 305 (1958) (where State

police officers make arrest for violation of Federal law,

"lawfulness of the arrest without warrant is to be determined by

reference to state law"); Johnson v. United States, 333 U.S. 10,

15 n.5 (1948) (same); Goulis v. State Judge of the Third Dist.

Court of E. Middlesex, 246 Mass. 1, 5-6 (1923), quoting

Dallemagne v. Moisan, 197 U.S. 169, 174 (1905) ("It has long

been held that power may be conferred upon a state officer, as

such, to execute a duty imposed under an act of Congress, and

the officer may execute the same, unless its execution is

prohibited by the constitution or legislation of the state").
                                                                   17


While State law may authorize local and State police to enforce

Federal criminal statutes, 10 it need not do so.

     Where the 2008 initiative decriminalized possession of one

ounce or less of marijuana under State law, and accordingly

removed police authority to arrest individuals for civil

violations, see G. L. c. 94C, § 32N, it also must be read as

curtailing police authority to enforce the Federal prohibition

of possession of small amounts of marijuana.   Any contrary

interpretation would clearly contravene the people's intent, to

which we must give effect.   See Commonwealth v. Cruz, supra at

470-471.   Construing the statutory scheme to continue to permit

State and local police to enforce the Federal prohibition would

be entirely inconsistent with the objective that we discerned in

Commonwealth v. Cruz, supra at 477, to "free up the police for

more serious criminal pursuits."   We will not adopt an

interpretation that is so plainly at odds with the purpose of

the initiative.   See Bridgewater State Univ. Found. v. Assessors

of Bridgewater, 463 Mass. 154, 160 (2012) (court will not

embrace "absurd or unreasonable" interpretation of statute).

     The Commonwealth appears to acknowledge that, after the

2008 initiative, State and local police lack authority to make

arrests under Federal law for possessing small amounts of

     10
       Of course, State law may authorize local enforcement of
Federal statutes only if not preempted by Federal law. See
Arizona v. United States, 132 S. Ct. 2492, 2505-2507 (2012).
                                                                    18


marijuana, but claims nonetheless that police may simply

investigate possible violations of Federal statutes and turn

over any evidence obtained to Federal authorities.    Even

assuming that the power to investigate crimes and make arrests

may be decoupled in such a way, the Federal government's current

stance on prosecuting marijuana-related offenses significantly

undercuts the strength of this argument.    In 2009, and again in

2013, the United States Department of Justice issued a

memorandum to all United States Attorneys outlining its

enforcement priorities with respect to marijuana-related

offenses.    See J.M. Cole, Deputy Attorney General of the United

States, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013)

(Cole); D.W. Ogden, Deputy Attorney General of the United

States, Investigations and Prosecutions in States Authorizing

the Medical Use of Marijuana (Oct. 19, 2009).    Such priorities

include, inter alia, "[p]reventing revenue from the sale of

marijuana from going to criminal enterprises, gangs, and

cartels" and "[p]reventing violence and the use of firearms in

the cultivation and distribution of marijuana."    Cole, supra at

1-2.

       The Department of Justice has recognized that, "[o]utside

of these enforcement priorities, the federal government has

traditionally relied on states and local enforcement agencies to

address marijuana activity through enforcement of their own
                                                                   19


narcotics laws," and will continue to do so where Federal

priorities are not implicated.    Id. at 2-3.   Therefore, given

the clear preference expressed in the 2008 initiative that

police focus their attention elsewhere, Federal law does not

supply an alternative basis for investigating possession of one

ounce or less of marijuana, especially where the Federal

government has signaled a lessened interest in prosecuting such

conduct.

     To be sure, examples of cooperation between Federal and

State law enforcement authorities are legion in our case law.

See, e.g., Commonwealth v. Gonzalez, 426 Mass. 313, 314 (1997);

Commonwealth v. Cast, 407 Mass. 891, 893 (1990).     See also

United States v. Franklin, 630 F.3d 53, 54 (1st Cir.), cert.

denied, 131 S. Ct. 2466 (2011).    By concluding as we do, we do

not intend to call into question the legitimacy of such joint

efforts.   We hold only that where, as here, State law expressly

has decriminalized certain conduct, there is no extant joint

investigation, and the Federal government has indicated that it

will not prosecute certain conduct, the fact that such conduct

is technically subject to a Federal prohibition does not provide

an independent justification for a warrantless search.

     Therefore, "[a]bsent articulable facts supporting a belief

that either occupant of the vehicle possessed a criminal amount

of marijuana [under State law], the search was not justified by
                                                             20


the need to search for contraband [under Federal law]."

Commonwealth v. Daniel, 464 Mass. 746, 752 (2013).

                                   Order allowing motion
                                     to suppress affirmed.
