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15-P-552                                              Appeals Court
15-P-553

   COMMONWEALTH    vs.    ANDREW K. LOCKE (and a companion case1).


                        Nos. 15-P-552 & 15-P-553.

           Worcester.      February 4, 2016. - June 7, 2016.

             Present:    Cypher, Wolohojian, & Neyman, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress.
     Search and Seizure, Motor vehicle, Threshold police
     inquiry. Constitutional Law, Search and seizure,
     Investigatory stop. Threshold Police Inquiry.


     Complaints received and sworn to in the Dudley Division of
the District Court Department on December 19, 2011.

     Pretrial motions to suppress evidence were heard by Gerald
A. Lemire, J., and motions for reconsideration were considered
by him.

     An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
     Barry A. Bachrach for Andrew K. Locke.
     Sean J. Gallagher for Tanik S. Kerr.


    1
        Commonwealth vs. Tanik S. Kerr.
                                                                   2



     CYPHER, J.   Complaints issued in the District Court

charging the defendants, Andrew K. Locke and Tanik S. Kerr, with

trafficking in fifty pounds or more of marijuana, G. L. c. 94C,

§ 32E(a), and conspiracy to traffic in marijuana, G. L. c. 94C,

§ 40.2   The Commonwealth appeals from the allowance of the

defendants' motions to suppress evidence and from the denials of

its motions for reconsideration, arguing that the judge

committed legal error when he concluded that "the odor of

marijuana does not constitute reasonable suspicion of criminal

activity or probable cause to believe that more than one ounce

of marijuana" was present in the defendants' vehicle.     We are

constrained to affirm the orders of suppression.   See

Commonwealth v. Cruz, 459 Mass. 459, 472 (2011) (Cruz);

Commonwealth v. Overmyer, 469 Mass. 16, 17 (2014) (Overmyer);

Commonwealth v. Craan, 469 Mass. 24 (2014) (Craan).

     We summarize the facts found by the judge after an

evidentiary hearing, at which State police Troopers Scott

Driscoll and Christopher Coscia both testified, supplemented by

uncontested facts in the record.   Craan, supra at 26.    On

December 17, 2011, Trooper Driscoll saw a white minivan make an

erratic lane change on Route 84 in Sturbridge, nearly causing a

collision.   Trooper Driscoll continued to watch the minivan and

     2
       The Commonwealth amended the trafficking charges to
possession of marijuana with the intent to distribute.
                                                                     3


clocked it in excess of the posted speed limits as it approached

the tollbooths on Route 84.    After the minivan passed through

the tollbooth, Trooper Driscoll stopped the minivan.    He did not

see any furtive movements, no one attempted to flee, and he did

not know how many people were in the minivan because the windows

were tinted and had interior shades that were pulled down.

     Trooper Driscoll approached the minivan on the passenger

side.    He spoke through the open window and explained the reason

for the stop.   He immediately detected the odor of unburned

marijuana.3   Locke, who was in the driver's seat, appeared

nervous, his chest was heaving, and he talked excessively.     The

passenger, Kerr, sat quietly and stared straight ahead.   Trooper

Driscoll asked Locke for his driver's license and registration.

Locke produced an Arizona driver's license and a rental contract

in the name of "Robert Spinks."    The rental contract indicated

that the minivan had been rented two days earlier in Rhode


     3
       At the hearing on the motion to suppress, Trooper Driscoll
described the odor as a "very strong odor of fresh marijuana
coming out of the vehicle." In his findings, the judge did not
refer to Trooper Driscoll's description of the odor as "very
strong." The decisional law of the Supreme Judicial Court makes
clear that the description of the odor as "strong" or "very
strong" does not, without more, constitute reasonable suspicion
or probable cause to believe that more than one ounce of
marijuana is present in light of the subjective and variable
nature of the strength of smell. See Overmyer, supra at 21-22
(strength of odor is subjective and dependent on many variables
such as gender, age, ambient temperature, presence of other
fragrant substances or masking agents, pungency of specific
strain of marijuana, and environment where odor is detected).
                                                                     4


Island.   Locke explained that Robert Spinks was his uncle and

that Locke was visiting Spinks in Connecticut and had borrowed

the minivan from him so that he could visit his daughter in the

Mattapan section of Boston.     Trooper Driscoll asked Locke if he

was an authorized driver on the rental agreement, but Locke did

not know.4

     Trooper Driscoll noticed several air fresheners in the

minivan in various locations.     Trooper Driscoll knew from his

training and experience that air fresheners are often used to

mask the odor of narcotics in a vehicle.    Trooper Driscoll asked

Kerr his name; Kerr told him his name and said that he was also

from Arizona, but that he did not have a license or an

identification card with him.


     4
       At the hearing on the motions to suppress, the
Commonwealth argued that Trooper Driscoll could have arrested
Locke for "use without authority" because he was not identified
on the rental contract as an authorized driver. Because Kerr
did not have a license, the minivan would then have been towed
and an inventory search conducted, which would have resulted in
the discovery of the marijuana. The Commonwealth did not pursue
this argument in its brief on appeal, and the facts necessary to
support this argument were not developed in the record.
Specifically, Locke did not know whether he was an authorized
driver (knowledge is an element of use without authority), there
was no testimony that the rental contract prohibited other
drivers, and the judge made no findings regarding this issue.
Contrast Commonwealth v. Henley, 63 Mass. App. Ct. 1, 5-6 (2005)
(name of driver of rental car not on contract and his temporary
license had expired); Commonwealth v. Watts, 74 Mass. App. Ct.
514, 518-519 (2009) (rental agreement had expired, vehicle had
been "queried" by police department within last thirty days, and
rental agency told officer that defendant was not authorized
operator and that they did not want him driving it).
                                                                   5


    Trooper Driscoll returned to his cruiser with the documents

Locke had given him and called for backup.   Trooper Scott Shea

arrived several minutes later, and Driscoll instructed him to

call for a drug-detection canine unit.

    Trooper Driscoll went to the driver's side of the minivan

and asked Locke to step out of the vehicle and pat frisked him

for the trooper's own safety.    He did not find anything.

Trooper Driscoll explained to Locke that he was concerned

because Locke was driving a rental vehicle but his name was not

on the rental contract as an authorized driver and that there

was an odor of marijuana.    Trooper Driscoll explained the law

regarding possession of marijuana and asked him if he was in

possession of any marijuana or if he had smoked marijuana

earlier that day in the minivan.    Locke stated that he was not

in possession of marijuana but that he and Kerr had smoked some

earlier in the day.   Trooper Driscoll told him that he had a

canine unit several minutes away and that he was going to have

the dog sniff the minivan.   Trooper Driscoll had Locke sit in

the back of his cruiser for the sake of the troopers' safety.

He was not handcuffed.

    Troopers Driscoll and Shea then approached the passenger

side of the minivan and asked Kerr to step out.   Trooper

Driscoll pat frisked Kerr and felt a semisolid bulge or bundle

in his jacket.   He asked Kerr what it was, and Kerr said it was
                                                                    6


cash.    At Trooper Driscoll's request, he showed Driscoll the

cash and said that it was about $3,500 that his sister had given

him for Christmas shopping.   Trooper Driscoll asked Kerr about

the odor of marijuana, and Kerr denied that there was an odor of

marijuana coming from the minivan.   He also denied that he had

smoked marijuana earlier with Locke.    Trooper Driscoll asked

Kerr to sit on the guardrail, but he requested to wait in the

rear of Shea's cruiser.

     After several more minutes, Trooper Coscia from the canine

unit arrived.   The dog made a positive hit for narcotics near

the rear lift gate of the minivan.     When Trooper Coscia opened

the door to the minivan, he noticed that it was "quite stinky,

the smell of a lot of marijuana."    The troopers conducted a

search of the vehicle and discovered seven fresh bundles of

marijuana, well over an ounce, in the rear cargo area, located

under a tarp or floor mat.    After advising them of the Miranda

rights, the troopers arrested Locke and Kerr.    Kerr volunteered

that he should not be arrested because he was just a passenger.

Trooper Driscoll replied that there was no possible way he could

not have noticed 159 pounds of marijuana in the back of the

minivan.5


     5
       The bales of marijuana had numbers on them, which appeared
to indicate weight. Trooper Driscoll added the numbers and
determined that there were 159 pounds. This weight was later
confirmed.
                                                                   7


     There was too much marijuana to fit into the cruisers, so

Trooper Driscoll called for a tow truck to take the minivan with

the marijuana to the State police barracks to inventory the

contents pursuant to the State police written inventory policy.6

     The Commonwealth argues that the judge erred when he

concluded that the search of the defendant's vehicle was not

supported by reasonable suspicion or probable cause.    The

Commonwealth contends that, although the judge correctly

characterized the Supreme Judicial Court's holding regarding the

conclusions that may be drawn from the odor of marijuana, in

this case there was more than the mere odor of marijuana.

     We review to determine whether the judge correctly applied

the constitutional principles to the facts as found.7

Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 323 (2011).

Possession of one ounce or less of marijuana is a civil, but not

a criminal, violation.   Cruz, supra at 464.   Commonwealth v.

Fontaine, 84 Mass. App. Ct. 699, 705 (2014).   See G. L. c. 94C,

§§ 32L-32N.   The odor of burned or unburned marijuana, without

more, will not justify the warrantless search of a vehicle.

     6
       As a result of the inventory search, the troopers also
found seven cellular telephones and a backpack with a Georgia
driver's license in the name of Andrew Locke.
     7
       Although some of these subsidiary facts relied on by the
Commonwealth are not in the judge's findings, they are in
Trooper Driscoll's and Trooper Coscia's uncontroverted
testimony. The defendant does not challenge the use of these
facts by the Commonwealth.
                                                                   8


Overmyer, supra at 17.    See Craan, supra at 27-30 (improper

search of automobile where search was based on odor of marijuana

alone, defendant exhibited no signs of impairment, and, although

summonses issued for criminal offenses, defendant was permitted

to drive away without being asked to submit to any field

sobriety tests).

       We begin by considering the validity of the traffic stop

and the incremental progression of the police activity.    There

is no question that the initial stop of the minivan was proper.

Commonwealth v. Torres, 433 Mass. 669, 673 (2001) (where police

have observed traffic violation, they are warranted in stopping

vehicle).    Detaining a vehicle for a motor vehicle infraction,

however, must "last no longer than reasonably necessary to

effectuate the purpose of the stop."    Commonwealth v. Garden,

451 Mass. 43, 46 (2008), quoting from Commonwealth v.

Ciaramitaro, 51 Mass. App. Ct. 638, 643 (2001).    See

Commonwealth v. King, 389 Mass. 233, 244 (1983) (once officers

approached car, they were required to complete parking citation

process and, barring other reasons to detain occupants, leave

them free from further police restraint).

       Although the initial stop was valid, the exit orders were

not.    As the judge noted, Trooper Driscoll did not observe any

furtive movements, weapons, contraband, or other activity to

suggest that there was criminal activity or danger to the
                                                                     9


officers or others.    Upon review, we ask whether a reasonably

prudent person in the police officer's position would be

warranted in the belief that the safety of the police or that of

other persons was in danger.     Commonwealth v. Gonsalves, 429

Mass. 658, 664 (1999).    To support an order to exit a vehicle,

the officer need not point to specific facts that the occupants

are armed and dangerous; rather, the officer need only point to

some fact or facts in the totality of the circumstances that

would create a "reasonable suspicion of danger" that would

warrant an objectively reasonable officer to secure the scene in

a more effective manner by ordering the occupants out of the

vehicle.   Commonwealth v. Feyenord, 445 Mass. 72, 75–76 (2005),

cert. denied, 546 U.S. 1187 (2006).     See Commonwealth v.

Cardoso, 46 Mass. App. Ct. 901, 902 (1998) (fidgeting around and

avoiding eye contact were not enough to order operator out of

car).

    Here, there is no indication in the record that Locke's

driver's license was invalid.    There is also nothing in the

record to support the conclusion that the fact that the minivan

was a rental vehicle but that Locke's name was not on the

contract would, or could, without more, result in Locke's

arrest.    See note 4, supra.   The fact that Locke appeared to be

nervous was insufficient to justify an exit order, as was Kerr's

silent staring straight ahead.    See Cruz, supra at 468
                                                                    10


(nervousness is common during mundane encounters with police and

is "not necessarily indicative of criminality"); Commonwealth v.

Douglas, 472 Mass. 439, 445 (2015) (staring straight ahead did

not give rise to reasonable suspicion).    Once Locke produced his

license, the vehicle registration, and the rental agreement, the

defendants should have been permitted to leave after Trooper

Driscoll issued a citation for speeding or another traffic

infraction unless Locke and Kerr were to be detained for

unauthorized use, which did not occur.    See note 4, supra.

    Although several considerations in combination may support

a reasonable belief that there is criminal activity, the odor of

marijuana, the presence of air fresheners, and the nervousness

of the defendants do not, in these circumstances, warrant a

reasonable suspicion of criminal conduct alone or together.      See

Cruz, supra at 468-469, 474-476   (exit order not supported by

reasonable suspicion where driver of illegally parked vehicle

was smoking small, inexpensive cigar commonly known to mask odor

of marijuana smoke, officer detected faint odor of marijuana,

and driver and front seat passenger appeared to be nervous).       As

the facts and circumstances here did not justify exit orders,

they also did not justify the patfrisks.    Trooper Driscoll did

not issue the exit orders or conduct the patfrisks until Trooper

Shea had arrived.   Upon Trooper Shea's arrival, the defendants
                                                                   11


did not exhibit any new behavior that would have justified the

patfrisks.8

     The Commonwealth attempts to justify the exit orders,

patfrisks, prolonged detention, and search of the minivan as an

automobile search based on probable cause.    The Commonwealth

argues that the nervous conduct of Locke, the questionable

rental agreement, and the very strong odor of marijuana -- so

strong that three air fresheners and an aerosol spray did not

cover the odor -- combine to establish probable cause.    However,

the Supreme Judicial Court specifically noted in Overmyer that,

"[a]lthough the odor of unburnt, rather than burnt, marijuana

could be more consistent with the presence of larger quantities,

. . . 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."9   Id. at 21.   The Supreme Judicial Court further noted


     8
       We pause to note that there is nothing at all in the
record to indicate that the State police were not proceeding in
good faith; until recently Trooper Driscoll's observations would
have supported a search under the automobile exception based on
probable cause that the automobile contained contraband. Cruz,
supra at 478 (Cowin, J., dissenting). Overmyer, supra at 19.
Craan, supra at 28. See Commonwealth v. Rodriguez, 472 Mass.
767, 774 (2015).
     9
       The Supreme Judicial Court's decisions rest on the idea
that one cannot reliably determine weight from smell alone. It
is undeniably true that precise quantity cannot ordinarily be
determined by one's nose. But that is not the same as
concluding that relative quantity cannot be determined through
                                                                  12


that even though "[t]he officers in this case detected what they

described as a 'strong' or 'very strong' smell of unburnt

marijuana. . . . , 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."10



smell, at least to the level of reasonable suspicion or probable
cause. Indeed, our sense of smell permits us to determine
relative quantity as a matter of routine and with reliability:
we may not know the precise number of loaves being baked at the
bakery, but we know from smell alone that it is more than one; a
burning house does not cause us to exclaim, "I smell a match."
Thus, although a police officer without specialized training may
not be able to determine from smell alone the precise weight of
marijuana, it is certainly within his or her powers of
discernment to be able to conclude that the smell of 2,544
ounces of it, as were present here, indicates that more than one
ounce is probably present. This is because the question is
properly one of the relative strength of a smell rather than
precise weight.

     This approach has, in our view, driven our jurisprudence
away from the intent of the 2008 ballot initiative. It is
difficult to imagine that, when the voters of this Commonwealth
chose to decriminalize the possession of less than one ounce of
marijuana, they also intended to limit law enforcement's ability
to investigate and curtail the interstate transport of 2,544
times that amount. After all, the 2008 initiative left intact
the overarching proposition that "possession of marijuana, in
any amount, remains illegal" and "any amount of marijuana is
considered contraband." Cruz, supra at 473. Here, the smell of
marijuana was "very strong" and that should have been enough to
support a reasonable suspicion, or probable cause, that a
criminal amount of marijuana was present.
     10
       In Overmyer, the Supreme Judicial Court recognized that
"[a]lthough it is possible that training may overcome the
deficiencies inherent in smell as a gauge of the weight of
marijuana present, . . . 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
                                                                   13


Ibid.   See Commonwealth v. Rodriguez, 472 Mass. 767, 774 (2015)

("we no longer consider the 'strong' or 'very strong' smell of

unburnt marijuana to provide probable cause to believe that a

criminal amount of the drug is present").   The dog's detection

of narcotics is not helpful to the Commonwealth's argument

because there was no evidence to indicate that the trained dog

is able to discern whether the marijuana he detected weighed

over one ounce.   See Craan, supra at 28 (odor of marijuana

cannot provide probable cause to search vehicle).

     As discussed above, Trooper Driscoll's observations were

not sufficient to support an exit order or a patfrisk of the

minivan's occupants.   The standard, a reasonable belief that the



weight." Id. at 22. The court concluded that, "[i]n 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 marijuana,'
whether burnt or unburnt." Id. at 23. Trooper Driscoll
testified that he had been trained to recognize the odors of
both burnt and unburnt marijuana. Trooper Driscoll noticed that
there were three air fresheners in the car: one hanging from
the rearview mirror, a second one on the floor in front of the
center console, and a third on the floor behind the driver's
seat. In addition, there was an aerosol can of air freshening
spray on the back seat. Trooper Driscoll was aware, based upon
his training and experience, that people often use air
fresheners to mask the odor of narcotics in a vehicle. The air
fresheners did not, however, cover the "very strong odor of
fresh marijuana." Trooper Driscoll was also trained to
recognize signs of drug distribution such as packaging
materials, cellular telephones, ledger notes, and the amount of
narcotics involved.
                                                                  14


officer's or another's safety is in jeopardy, is not a high

standard, but the Supreme Judicial Court has made it clear that

nervousness alone is insufficient to support an exit order.      The

odor of marijuana, burned or unburned, perceived as strong or

faint, is insufficient for a search of a vehicle.     Two

observations, insufficient alone, do not, in these

circumstances,11 add up to probable cause to search the minivan

under the automobile exception.   The additional fact that the

rental agreement was not in the name of the driver adds nothing

to the equation.

     Although the initial stop was valid and the officer

detected what appeared, subjectively to him, to be a "very

strong" odor of unburned marijuana, the exit orders, patfrisks,

and search of the minivan were not valid under recent Supreme

Judicial Court precedent, discussed supra.   Accordingly, we must

affirm the orders allowing the motions to suppress.

                                    So ordered.



     11
       The Supreme Judicial Court has carved out an exception to
the general rule that although something may, in fact, be
perfectly innocent or legal it may, depending on the
circumstances, still establish reasonable suspicion or probable
cause to believe that a crime has been, will be, or is being
committed. See Cruz, supra at 478 (Cowin, J., dissenting)
(noting that "seemingly innocent activities taken together can
give rise to reasonable suspicion," quoting from Commonwealth v.
Grandison, 433 Mass. 135, 139 [2001]). See also Terry v. Ohio,
392 U.S. 1, 22 (1967) (series of innocent acts, "taken together
warranted further investigation").
