Trunk Search for Marijuana Upheld By Appeals Court

On June 25, 2010 the appeals court upheld a trunk search for Marijuana in COMMONWEALTH vs. NORMAN DEGRAY 77 Mass.App.Ct. 122 (2010).

In deciding the case the court stated “This appeal presents the issue whether police officers may reasonably search the trunk of an automobile where there was an odor of burnt marijuana in the vehicle, where the driver of the automobile admitted that he and the vehicle’s other occupants had been smoking marijuana in the automobile, and where two marijuana cigarettes as well as marijuana remnants were found in the passenger compartment. The Commonwealth appeals from a Superior Court judge’s allowance of the defendant’s motion to suppress evidence seized from the trunk. We reverse.

The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights protect people against “unreasonable searches and seizures.” “[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.” Commonwealth v. Motta, 424 Mass. 117, 124 (1997). See Commonwealth v. Eggleston, 453 Mass. 554, 554 (2009). See also Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (Fourth Amendment does not require exigent circumstances to justify the warrantless search of a motor vehicle stopped in transit or seized or searched in public place). See generally Smith, Criminal Practice & Procedure § 4.122 (3d ed. 2007); Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 14-2 (2010).

In Garden, supra at 44, the Supreme Judicial Court affirmed the allowance of a motion to suppress evidence of firearms seized from the trunk of a vehicle after officers smelled marijuana upon stopping the vehicle. When the officers in Garden approached the vehicle, they smelled burnt marijuana on the clothing of the defendant, who was sitting in the driver’s seat. Id. at 45. A search of the defendant and one of his passengers, as well as the passenger compartment, did not reveal any contraband. Ibid. Over the defendant’s objections, an officer opened the trunk and found three pistols. Ibid. The judge granted the defendant’s motion to suppress evidence seized from the trunk. Id. at 44.

The Supreme Judicial Court affirmed, holding that “[t]he search of the . . . trunk . . . exceeded the permissible scope of the search because [the officer] could not reasonably have believed that the source of the smell of burnt marijuana would be found in the trunk.” Id. at 51. The court continued: “There is no question that in many cases involving searches of automobiles, probable cause to search extends to every area within the vehicle, including the trunk. The facts of this case, however, require a different conclusion, because the odor detected by the officers was not the odor of raw marijuana, which might reasonably suggest the defendant was engaged in selling or transporting the drug, but rather the odor of burnt marijuana, suggesting thatthe defendant, or others in the car, had been smoking marijuana in the not too distant past. Simply from detecting the odor of burnt marijuana on the clothes of the car’s occupants — most of whom he had seen enter the car a very short time before — the officer could not reasonably have inferred that burning, recently burned, or even raw marijuana would be found in the trunk. Accordingly, the search of the trunk was beyond the scope permitted by art. 14 or the Fourth Amendment.”

Id. at 52. The court acknowledged that “[h]ad the officers discovered contraband during the search of the passenger compartment or its passengers, even a small amount suggesting personal use, the permissible scope of the search might have extended not only to the passenger compartment of the automobile but also to its trunk. This is because ‘[i]t is widely accepted that the discovery of some controlled substances gives probable cause to search for additional controlled substances in the vicinity.’ ” Id. at 53, quoting from Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690 n.8 (1984).

We can discern in Garden and other Massachusetts cases the intersection of two principles relevant to the case before us. First, observing a marijuana cigarette, even if devoid of a “characteristic burning odor,” provides a trained police officer with “probable cause . . . to seize the cigarette, examine it, and investigate for the presence of other controlled substances.” Commonwealth v. Skea, supra at 688. Second, to justify the search of a trunk, there must be a connection between the vehicle and the contraband. Compare Commonwealth v. Pena, 69 Mass. App. Ct. 713, 718 (2007) (no probable cause to search the entire vehicle based solely on finding of drugs on the passenger because this did not create a sufficient “connection between the car and the [passenger’s] drugs” [cited with approval in Garden, supra at 53]), with Commonwealth v. Villatoro, 76 Mass. App. Ct. 645, 647-648 (2010) (discovery of plastic bag containing marijuana on the driver, who was alone in the automobile, justified comprehensive search of the vehicle, including the trunk).

In sum, we conclude that the search of the trunk in this case was reasonable. In Garden, the smell of burnt marijuana on the clothes of the automobile’s occupants did not, in the absence of any physical evidence, give rise to the inference that marijuana had been smoked in the vehicle, and that marijuana might reasonably be found elsewhere in the vehicle. Here, by contrast, the officers found two marijuana cigarettes and marijuana remnants inside the automobile, establishing a connection between contraband and the vehicle. In addition, the driver of the automobile admitted that he and his passengers had been smoking marijuana in the vehicle, and the officer smelled burnt marijuana in the vehicle. All of these factors support a connection between the contraband and the automobile, a connection not present in Garden. As the court noted in Garden, supra at 53, the discovery of even a small amount of contraband in the passenger compartment, which might only be for personal use, can extend the scope of the search to include the trunk. Contrary to the defendant’s contention, the scope of the search extending to the trunk was “justified by the circumstances.”Commonwealth v. Moses, 408 Mass. 136, 140 (1990).”

Commentary,

The issue of trunk searches is a long confusing one. The history of caselaw begins with Comm. v. White which stated that a small amount of marijuana consistent with personal use will not allow police access to the trunk to search. That case however, involved nothing more than marijuana cigarettes in the breast pocket of a shirt, without even so much as a seed present in plain view.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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