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Pot Smell not Enough for Stop That Bred Drug Bust

(CN) - Smelling burnt marijuana did not justify a traffic stop that uncovered a bag of 60 Percocets and led to drug charges, the Massachusetts high court ruled.

The stop occurred on April 26, 2012, in New Bedford, when Detective Daniel Amaral noticed a car he had seen once before.

Amaral testified that the last time he stopped the car, he arrested the driver for heroin possession.

A narcotics surveillance team instructed Amaral to pull the vehicle over, and the detective says he smelled burning marijuana coming from the car as he followed it.

Though Amaral did not see the driver commit any traffic offense, he pulled the vehicle based on the odor escaping the car's open windows.

Amaral said he found the source of the odor as soon as he approached the car as the driver was holding a marijuana cigar in his right hand.

During the ensuing stop, police found a plastic bag of 60 Percocet pills.

Elivette Rodriguez, a passenger in the vehicle, was charged with possession with intent to distribute a class B substance, conspiracy to violate drug laws, and a drug violation near a school or park.

After Rodriguez moved to suppress evidence of the pills, the trial court considered the propriety of the vehicle stop and found it justified based on the the odor of burnt marijuana, coupled with other "suspicious activity implicating but not rising to drug activity" involving the car.

Having taken up the case before a lower appeals court could consider it, the Massachusetts Supreme Judicial Court reversed 5-2 on Tuesday.

"Although marijuana possession remains illegal, the present case is not one in which a police officer actually observed an infraction - such as a person walking through a park smoking what appeared to be a marijuana cigar or cigarette - and stopped the offender for the purpose of issuing a citation and confiscating the offending item," Judge Margot Botsford wrote for the majority. "Rather, here, an officer smelled burnt marijuana, nothing more, and stopped a vehicle to investigate further whether a citation was appropriate. (It was only after the stop had been made that Amaral observed the driver's marijuana cigar.)" (Parentheses in original).

Botsford added that "stops based on reasonable suspicion of a possible civil marijuana infraction do not promote highway safety and run contrary to the purposes of General Laws Chapter 94C, Sec. 32L."

The dissenting justices meanwhile credited comparison the commonwealth drew to stopping a vehicle based on the civil traffic offense of marijuana possession.

"While it may be true that not all civil marijuana violations have an impact on automobile safety, to the extent that such a consideration is of any constitutional relevance, it seems also true that civil marijuana violations occurring in motor vehicles do implicate concerns regarding traffic and automobile safety," Justice Robert Cordy wrote, joined by Justice Francis Spina. "Indeed, sending and receiving electronic messages has no bearing on traffic and automobile safety when done in a park. When done while operating a motor vehicle, however, it presents enough of a safety risk that it is now prohibited by law."

Rodriguez's attorney, John Calcagni, said he is "very pleased" with the ruling, which answers a question that the court left open in 2011 with Commonwealth v. Cruz.

"I believe the court came full circle or closed the loop, so to speak, regarding the full impact of the decriminalization of marijuana on the constitutional legal analysis as it pertains to police authority to stop, search and issue exit orders," Calcagni said in an email. "Though I do believe that this decision will further reduce the enforceability of the decriminalization statute, constitutional rights and principles trump any statutory authority."

For Calcagni, the ruling is "in conformity with the will of the people, who voted to decriminalize marijuana, and society's overall view and apparent direction toward ultimate legalization."

Representatives for the commonwealth have not returned a request for comment.

A footnote to the decision notes that Rodriguez has a separate motion to suppress pending, which involves "the manner in which the bag of pills was discovered."

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