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For Opinion See 962 N.E.2d 213 Appeals Court of Massachusetts. COMMONWEALTH, v. Clint DANIEL & Another. No. 2010-P-1495. June, 2011. On Appeal from a Judgment of the Central Division of the Boston Municipal Court Brief for the Defendant-Appellee Tim Brown, BBO #664171, Committee for Public Counsel Services, Public Defender Division, 44 Bromfield Street, Boston, Massachusetts 02108, (617) 482-6212, tbrown@publiccounsel.net, Attorney for Defendant-Appellee. *i TABLE OF CONTENTS TABLE OF AUTHORITIES ... iii ISSUES PRESENTED ... 1 STATEMENT OF THE CASE ... 1 STATEMENT OF FACTS ... 2 ARGUMENT I. THE SMELL OF BURNT MARIJUANA DID NOT FURNISH REASONABLE SUSPICION THAT THE OCCUPANTS OF THE VEHICLE WERE ENGAGED IN CRIMINAL CONDUCT, NOR DID IT JUSTIFY A SEARCH FOR CONTRABAND, AND THEREFORE THE JUDGE PROPERLY RULED THE EXIT ORDER AND SEARCH ILLEGAL ... 4 A. Introduction ... 4 B. The judge was correct in ruling that, post-decriminalization, the smell of burnt marijuana does not imply criminal activity, nor were there any articulable facts present to reasonably suspect criminality ... 5 C. The judge was correct in ruling that the smell of burnt marijuana, post-decriminalization, does not justify a search for contraband ... 8 II. THE EXIT ORDER AND SEARCH OF THE VEHICLE WERE NOT JUSTIFIED BY SAFETY CONCERNS BECAUSE OFFICER DELEO DID NOT HAVE A HEIGHTENED AWARENESS OF DANGER,

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AND, IN THE ALTERNATIVE, A REASONABLE OFFICER IN OFFICER DELEO'S POSITION WOULD NOT HAVE HAD THE REQUISITE APPREHENSION OF DANGER ... 9 *ii A. Since the motion judge found that Officer DeLeo was not concerned about safety, the exit order and search cannot be justified on that ground ... 9 B. In the alternative, a reasonable officer in the position of Officer DeLeo would not be justified in a heightened awareness of danger, and this was the implicit ruling of the motion judge in finding that Officer DeLeo was not credible in his claim of apprehension of danger ... 16 CONCLUSION ... 21 ADDENDUM ... 22 CERTIFICATE OF COMPLIANCE ... 23 *iii TABLE OF AUTHORITIES CASES Commonwealth v. Ancrum, 65 Mass. App. Ct. 647 (2006) ... 11 Commonwealth v. Bookman, 386 Mass. 657 (1982) ... 15 Commonwealth v. Bottari, 395 Mass. 777 (1985) ... 15 Commonwealth v. Correia, 381 Mass. 65 (1980) ... 15 Commonwealth v. Cruz, 459 Mass. 459 (2011) ... 5-8 Commonwealth v. Gonsalves, 429 Mass. 658 (1999) ... 4, 10 Commonwealth v. Heughan, 40 Mass. App. Ct. 102 (1996) ... 18 Commonwealth v. Meehan, 377 Mass. 552 (1979) ... 15 Commonwealth v. Moon, 380 Mass. 751 (1980) ... 14 Commonwealth v. Moses, 408 Mass. 136 (1990) ... 18 Commonwealth v. Prevost, 44 Mass. App. Ct. 398 (1998) ... 17 Commonwealth v. Stampley, 437 Mass. 323 (2002) ... 10, 16, 17 Commonwealth v. Torres, 433 Mass. 669 (2001) ... 16, 17 *iv Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499 (1996) ... 11-13, 15 Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103 (1989) ... 18

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Pennsylvania v. Mimms, 434 U.S. 106 (1977) ... 16 United States v. Tharpe, 536 F.2d 1098 (5th Cir. 1976) ... 12 STATUTE G.L. c.94C, 32L-32N ... 5, 6 CONSTITUTIONAL PROVISIONS Massachusetts Declaration of Rights Article Fourteen ... 4, 9, 22 United States Constitution Fourth Amendment ... 4, 16, 22 *1 ISSUES PRESENTED Whether the motion judge ruled correctly in allowing the defendant's motion to suppress the firearm on the grounds that: 1. neither under a theory of reasonable suspicion to believe the occupants were engaged in criminal activity, nor to facilitate a warrantless search for contraband was the odor of burnt marijuana sufficient to justify the exit order and search of the vehicle; and 2. the exit order and search of the vehicle were not justified by safety concerns where Officer DeLeo did not have a heightened awareness of danger, and, in the alternative, a reasonable officer in Officer DeLeo's position would not have had the requisite apprehension of danger. STATEMENT OF THE CASE This is appellee Clint Daniel's response to the Commonwealth's interlocutory appeal from the allowance by a Boston Municipal Court judge of Daniel's motion to suppress evidence seized by the police without a warrant. *2 Appellee Daniel is satisfied with the statement of prior proceedings set forth in the Statement of the Case in the Commonwealth's brief. STATEMENT OF FACTS Appellee Daniel is satisfied with the Commonwealth's Statement of the Facts -- which consists of the motion judge's findings of fact and rulings of law, supplemented with uncontested testimony necessarily credited by the [FN1] judge (C.B. 3) -- with one exception and two additions. FN1. References to the Commonwealth's brief will be cited as (C.B. ___ ), the Commonwealth's appendix as (C.A. ___ ), and the Commonwealth's addendum as (C. Addendum ___ ). References to the motion hearing transcript will be cited as (Tr. ___ ). Appellee Daniel takes issue with the added portion of the following excerpt: Officer DeLeo exited his cruiser and walked to the passenger side as is his custom in motor vehicle stops (Tr. 14-15). As he approached the SUV he saw the passenger's head down and his shoulders rocking back and forth [as if fumbling with something][;] he could not see his *3 hands. (C.B. 4; Commonwealth's addition emphas-

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ized). The characterization as if fumbling with something is not testimony necessarily credited by the judge, but is rather a speculative conclusion that was not adopted by the motion judge in her findings. The Commonwealth's other additions are all based on direct observations made by Officer DeLeo, or descriptions of his past experience as a police officer. While it is true that the judge found Officer DeLeo mostly factually credible, it does not follow that the judge would adopt a vague speculation about what the officer admittedly could not see. While the Commonwealth is free to argue that the motions described by the officer may imply fumbling with something, such a characterization is not an uncontested fact. Appellee Daniel adds the following uncontested testimony necessarily credited by the judge: 1. Officer DeLeo had a pretty good knowledge of the area in which the car stop took place; has made arrests around that area for drugs, assaults, and other crimes; but could not remember whether weapons were involved in those arrests. *4 (Tr. 11); and 2. When the driver produced two small bags of marijuana, Officer DeLeo instructed her to place them on the dashboard (Tr. 20). Officer DeLeo then asked again if there was anything in the vehicle of concern, in response to which appellee Daniel emptied his pockets onto the dashboard (Tr. 21). ARGUMENT I. THE SMELL OF BURNT MARIJUANA DID NOT FURNISH REASONABLE SUSPICION THAT THE OCCUPANTS OF THE VEHICLE WERE ENGAGED IN CRIMINAL CONDUCT, NOR DID IT JUSTIFY A SEARCH FOR CONTRABAND, AND THEREFORE THE JUDGE PROPERLY RULED THE EXIT ORDER AND SEARCH ILLEGAL. A. Introduction. Preliminarily, it is not contested that the car stop for a civil infraction was valid. Article Fourteen of the Massachusetts Declaration of Rights gives broader protections to occupants of motor vehicles stopped for civil infractions than does the Fourth Amendment. Commonwealth v. Gonsalves, 429 Mass. 658 (1999). The Supreme Judicial Court recently articulated three possible justifications for exit orders under such circumstances: 1) concerns for the *5 safety of officers or the public; 2) reasonable suspicion (based on articulable facts) that the occupants were engaged in criminal activity; and 3) pragmatic reasons, such as to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement. Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011) (citations omitted). The recent change in Massachusetts law (G.L c.94C, 32L-32N), decriminalizing the possession of less than one ounce of marijuana, bears on the second and third justifications, argued in the following two sections. These issues, involving the smell of burnt marijuana, were addressed in the Cruz decision on very similar facts. The issue of officer safety was not at issue in Cruz, and is argued in section II. B. The judge was correct in ruling that, post-decriminalization, the smell of burnt marijuana does not imply criminal activity, nor were there any articulable facts present to reasonably suspect criminality. [T]o order a passenger in a stopped vehicle to *6 exit based merely on suspicion of an offense, that offense

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must be criminal. Cruz, 459 Mass. at 469. There is no suggestion in the record that police ever suspected either defendant of a crime unrelated to marijuana until Officer DeLeo found the firearm in the glove box. Articulable facts, then, must demonstrate a suspicion that the defendant possessed more than one ounce of marijuana, because possession of one ounce or less of marijuana is not a crime. See G.L. c.94C, 32L. Id. [W]ithout at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order. Id. at 472. In Cruz, officers approached an illegally parked car in a high crime area, and smelled an odor of marijuana. Id. at 461-462. Both the driver and passenger appeared nervous to officers, and were sharing a cigar. Id. No weapons or contraband were observed in the vehicle by officers. The Court ruled that neither the character of the neighborhood, the defendants' nervousness, nor *7 the sharing of a cigar bolstered suspicion that they were engaged in conduct more serious than a civil infraction. Id. at 467-468. No facts in the present case add significantly to the reasonable suspicion analysis. After initial denials, both occupants of the vehicle were compliant throughout the incident. The motion judge found that, as in Cruz, there were no furtive movements. The most significant factual difference between Cruz and the present case is the actual presence of marijuana. When asked about marijuana, the driver produced two small bags of marijuana from her person and placed them on the dashboard as instructed. Since the mere smell of burnt marijuana can only give rise to an inference that some quantity of marijuana is present, the actual production a non-criminal quantity only confirmed such a suspicion, and does not bolster the possibility that a criminal amount may still be hidden. The Commonwealth argues that appellee Daniel's spontaneous emptying of his pockets onto the dashboard was suspicious behavior because he was not *8 directly asked to do so (C.B. 25). The surrounding facts demonstrate that these actions were a natural response to police inquiry and instructions. Officer DeLeo had just ordered the driver to place her marijuana on the dashboard, then repeated his questioning as to whether there was anything of concern in the vehicle (Tr. 20-21). Viewed in context, appellee Daniel's actions can only be viewed as responsive to the officer's repeated inquiry, certainly not as spontaneous. Because the odor of burnt marijuana is the only articulable fact in the record supporting a possibility of any specific crime, there was not reasonable suspicion to believe criminality was afoot. C. The judge was correct in ruling that the smell of burnt marijuana, post-decriminalization, does not justify a search for contraband. Under the automobile exception, a warrantless search of an automobile is permitted when police have probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable. Cruz 459 Mass. at 473-474 (citations *9 and quotation marks omitted). The standard is whether a magistrate provided with the same information would issue a search warrant for criminal contraband. Id. at 475-476. When marijuana is the contraband at issue, the question is whether probable cause exists to believe that a criminal amount is present. Id. at 476. As detailed above, no specific, articulable facts exist even to support a reasonable suspicion that more than an ounce of marijuana was in the vehicle. Because a warrant could not have issued on the facts before the Court, the motion judge was correct in ruling that a search was not justified. II. THE EXIT ORDER AND SEARCH OF THE VEHICLE WERE NOT JUSTIFIED BY SAFETY CONCERNS

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BECAUSE OFFICER DELEO DID NOT HAVE A HEIGHTENED AWARENESS OF DANGER, AND, IN THE ALTERNATIVE, A REASONABLE OFFICER IN OFFICER DELEO'S POSITION WOULD NOT HAVE HAD THE REQUISITE APPREHENSION OF DANGER. A. Since the motion judge found that Officer DeLeo was not concerned about safety, the exit order and search cannot be justified on that ground. [A]rticle 14 [of the Massachusetts Declaration of *10 Rights] requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle. Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999)(emphasis added). The Supreme Judicial Court has described the necessary degree of apprehension as a heightened awareness of danger. Commonwealth v. Stampley, 437 Mass. 323, 326 (2002). When the police are justified in stopping an automobile for a routine traffic violation, they may ... order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger. Id. (emphasis added). It is crucial to note that the police are required to have such a belief. Once it is established that the officer or officers in question had such a state of mind, an objective inquiry into the reasonableness of the officers' concerns is appropriate. The Commonwealth argues that actual officer apprehension is not necessary, so long as an objective *11 factual analysis shows that a reasonable officer would have had a heightened awareness of danger, and cites two Appeals Court decisions as standing for these propositions: Commonwealth v. Ancrum, 65 Mass. App. Ct. 647 (2006), and Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499 (1996)(C.B. 22-23). In fact, the Ancrum court did not analyze using a reasonable officer standard, but looked to whether the officers in the case had an actual, reasonable belief that their safety or the safety of others [was] in danger. Ancrum, 65 Mass. App. Ct. at 654-655. The Commonwealth accurately describes this Court's ruling in Va Meng Joe, but ignores the Supreme Judicial Court's subsequent decision which affirmed on other grounds. See Commonwealth v. Va Meng Joe, 425 Mass 99, 100 (1997). At the Appeals Court level, the issue in Va Meng Joe was whether an officer need testify directly about a concern for safety to justify a search for weapons. The Appeals Court held that in the absence of such direct testimony, a motion judge or reviewing court can infer heightened fear from evidence that an officer *12 behaved in a way that demonstrated his apprehension, and from the surrounding circumstances. There is ... no legal requirement that an officer testify to having been placed in fear by the potential threat, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger. Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 510 n.13 (1996), quoting United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir 1976)(en banc). The Appeals Court ruled that objective, reasonable person analysis can be used to establish the existence of police apprehension where an explicit claim of such fear is not contained in the testimony. Arguably, the Appeals Court only required awareness of facts sufficient to warrant apprehension (closer to a purely objective analysis). The Supreme Judicial Court, however, clarified the issue in its subsequent decision in Va Meng Joe. The Supreme Judicial Court upheld the search as incident to a lawful arrest, but rejected the above Appeals Court reasoning because, the Commonwealth conceded that the police officer, in searching *13 the defendant, was not motivated by a concern for his own safety. Therefore, the search cannot be justified as a valid warrantless search on that ground. Commonwealth v. Va Meng Joe, 425 Mass. at 102. If the analysis were purely objective, the Commonwealth's concession would not change the outcome, as the officer's actual state of mind would not enter into the inquiry. A factual finding of actual police apprehension -- whether through direct testimony or through an analysis of the circumstances and the officer actions--is therefore neces-

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sary, before the objective analysis as to whether such fear was reasonable is conducted. In the present case, the judge found: that the officer did not have heightened awareness of danger largely in part because of his actions and statements. Specifically, he allowed the driver to move the car with the passenger, two small bags of marijuana, and knife on the dashboard, while he left the car with the occupants inside and returned to his cruiser to move it. The officer also did not call for back up assistance until after he ordered the occupants out of the vehicle and *14 searched their persons and the vehicle. When questioned by defense counsel as to his heightened awareness and fear for his safety, the officer stated Ok--it was heightened. I was not shaking in my boots. (C. Addendum 49) The motion judge supplemented her findings as to the officer's lack of safety concerns: The court did not find the officer's testimony credible regarding any heightened fear and/or safety concerns at the time of the stop. (C. Addendum 53). Such factual findings are normally respected upon appellate review: The evidence before the judge at the hearing on the motions to suppress consisted entirely of oral testimony. The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. In such a situation, where subsidiary findings of fact have been made by the trial judge, they will be accepted by this court, and we do not substitute our judgment for his, absent clear error. Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980). Further, it is well-settled that the judge's findings of fact are binding in the absence of clear error ... and [we] view with *15 particular respect the conclusions of law which are based on them. Commonwealth v. Correia, 381 Mass. 65, 76 (1980). While the judge's ultimate findings of fact and rulings of law, as they bear on issues of constitutional dimension, are open for reexamination by this court, such ultimate findings are entitled to substantial deference by this court. Commonwealth v. Bookman, 386 Mass. 657, 661 n.6 (1982). Questions of credibility are, of course, for the trial judge to resolve. Commonwealth v. Meehan, 377 Mass. 552, 557 (1979). Commonwealth v. Bottari, 395 Mass. 777, 780 (1985). Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 502 (1996) (alterations by Court). The factual record from the motion hearing is that the officer did not have a heightened awareness of danger and that his claims to the contrary were not credible. There was no clear error with respect to these findings. The judge supported her conclusions with specific facts from the motion hearing. The motion judge's finding should have the same effect as the Commonwealth's concession in Va Meng Joe: no reasonable officer analysis is warranted because lack of officer concern is clear on the record. *16 B. In the alternative, a reasonable officer in the position of Officer DeLeo would not be justified in a heightened awareness of danger, and this was the implicit ruling of the motion judge in finding that Officer DeLeo was not credible in his claim of apprehension of danger. The Fourth Amendment allows for exit orders during routine car stops at police discretion, due to the intrinsic risk confronting an officer as he approaches a person seated in an automobile. Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977). Under Massachusetts constitutional law, an order to exit a motor vehicle is a seizure that requires justification beyond the inherent potential danger of a car stop. Commonwealth v. Torres, 433 Mass. 669, 673 (2001). There is no case law in Massachusetts holding that any movement by occupants of a vehicle supplies the requisite heightened awareness of danger to issue an exit order. Commonwealth v. Stampley, 437 Mass. 323, 326 (2002). Many of the contexts in which exit orders have been upheld include some furtive

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movement coupled with other indicators of danger or criminality. *17 In Commonwealth v. Torres, 443 Mass. 669, 674 (2001), the suspect vehicle traveled for three blocks following an initial traffic violation and then pulled over suddenly. All four doors flew open and one passenger bolted, escaping the police. Three passengers in the back seat were all seen to bend over and mess with something on the floor. Id. In Commonwealth v. Stampley, 437 Mass. 323 (2002), after the car was initially stopped for a traffic violation, all four passengers put their hands outside the car. After the officer walked away from the suspect car back to his own vehicle, the front seat passenger was seen to bend over towards the floor twice, once for thirty to forty-five seconds. These actions, occurring at precisely the moment when the suspect would have reasonably believed he was no longer under observation, justified the officer's belief that the suspect may have been concealing or retrieving a weapon. Id. at 327-328. See also, Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 399-400 (1998) (officers observed operator and front seat passenger make numerous uncommon body *18 movements, including bending forward, then saw outline of small firearm in passenger's pants); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 103-104 (1996) (car speeding from area of reported shots fired, bending-forward movement of rear passenger, and inability of driver to produce documents); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1103 (1989) (driver had tried to evade police pursuit and passenger reached into well between the front seats during the stop); Commonwealth v. Moses, 408 Mass. 136, 137-138 (1990) (observation of four men gathered around passenger side of parked vehicle who quickly dispersed upon officer's approach, coupled with driver bending down out of sight). The facts in the present case did not warrant a heightened awareness of danger sufficient to justify the officer's actions. The car in which appellee Daniel was a passenger pulled over as soon as Officer DeLeo signaled a traffic stop. The area in which the stop took place is one where the officer had previously made arrests, but he could not remember whether any *19 involved weapons. There is no indication of an attempt to evade police. There was no testimony regarding nervousness of either defendant. Nobody ran from the car. None of Officer DeLeo's observations was sufficient to create a heightened awareness of danger. At the outset of the incident, Officer DeLeo observed appellee Daniel briefly moving in the passenger seat of the vehicle. The motion judge found that these movements were not furtive. Officer DeLeo's inquiries and observations did not lead to indicators of danger. The defendants initially denied having marijuana, but after that initial, understandable reluctance, the defendants were nothing but compliant and cooperative. They answered Officer DeLeo's questions and obeyed his commands. In response to his questioning about marijuana, the driver appellee Tayetto, produced the two small bags in her possession, and placed them on the dashboard when told to. In response to Officer DeLeo's repeated requests to know if the defendants had anything else of concern, Mr. Daniel complied by *20 emptying his pockets onto the dashboard. Officer DeLeo then returned to his cruiser so that both vehicles could move out of the way of traffic, without ordering either occupant from the vehicle. By the time Officer DeLeo searched the car, the defendants had been compliant and were only facing civil infractions. Moreover, both had been searched and found to have nothing dangerous on their persons. A reasonable officer would not have been justified in a heightened awareness of danger. Moreover, implicit in the judge's finding that Officer DeLeo was not credible in his claim to a heightened awareness of danger, is the opinion that the circumstances would not have justified such a fear. In expressing her inference that Officer DeLeo did not have a heightened awareness of danger, the judge listed the events, actions, and words of the officer which supported her conclusion. (C.Addendum 49). The judge credited the officer's factual testimony with no other exception. (C. Addendum 48). Since the judge believed that Officer DeLeo was being generally honest in his *21 testimony, it follows that she did not believe circumstances justified his claim to

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a heightened awareness of danger. CONCLUSION In light of the foregoing argument, this Court should affirm the judge's allowance of appellee Daniel's motion to suppress evidence and denial of the Commonwealth's motion to reconsider. COMMONWEALTH, v. Clint DANIEL & Another. 2011 WL 2870589 (Mass.App.Ct. ) (Appellate Brief ) END OF DOCUMENT

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For Opinion See 962 N.E.2d 213 Appeals Court of Massachusetts. COMMONWEALTH OF MASSACHUSETTS, Appellant, v. CLINT DANIEL & ANOTHER, Defendant-Appellee. No. 2010-P-1495. April, 2011. Suffolk County Brief and Appendix for the Commonwealth on Appeal from a Judgment of the Central Division of the Boston Municipal Court Daniel F. Conley, District Attorney, For the Suffolk District, Zachary Hillman, Assistant District Attorney, BBO# 670258, One Bulfinch Place, Boston, MA 02114, (617) 619-4070, Zachary.Hillman@State.Ma.us. *i TABLE OF CONTENTS TABLE OF AUTHORITIES ... ii ISSUES PRESENTED ... 1 STATEMENT OF THE CASE ... 1 STATEMENT OF FACTS ... 3 A. The Motion Judge's Findings and Rulings ... 3 SUMMARY OF THE ARGUMENT ... 9 ARGUMENT ... 10 I. BECAUSE OFFICER DELEO'S SMELL AND OBSERVATION OF MARIJUANA GAVE HIM PROBABLE CAUSE TO BELIEVE THAT HE WOULD FIND ADDITIONAL CONTRABAND IN THE VEHICLE, AND BECAUSE DEFENDANT DANIEL'S ACTIONS WERE SUFFICIENT TO CAUSE A REASONABLE OFFICER TO FEAR FOR HIS SAFETY, THE FRISK OF THE VEHICLE WAS PROPER ... 10 A. The Smell And Production Of Marijuana Provided Probable Cause To Search The SUV For More Contraband ... 11 B. A Reasonable Officer ln Officer Deleo's Position Would Have Been Warranted In Fearing For His Safety And Thus Could Frisk The SUV For His Protection ... 22 CONCLUSION ... 27

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ADDENDUM ... 28 *ii TABLE OF AUTHORITIES CASES Alaska v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004) ... 21 Carroll v. United States, 267 U.S. 132 (1925) ... 14, 18 Commonwealth v. Ancrum, 65 Mass. App. Ct. 647 (2006) ... 23 Commonwealth v. Benjamin Cruz, No. SJC-10738 ... 15 Commonwealth v. Cast, 407 Mass. 891 (1990) ... 13, 14, 17 Commonwealth v. Correia, 66 Mass. App. Ct. 174, rev. denied, 447 Mass. 1102 (2006) ... 12, 13 Commonwealth v. Crespo, 59 Mass. App. Ct. 926, rev. denied, 441 Mass. 1104 (2003) ... 12 Commonwealth v. Davis, 41 Mass. App. Ct. 793 (1996) ... 11 Commonwealth v. DeGray, 77 Mass. App. Ct. 122, rev. denied, 458 Mass. 1108 (2010) ... 14, 18 Commonwealth v. Figueroa, 412 Mass. 745 (1992) ... 13 Commonwealth v. Garden, 451 Mass. 43 (2008) ... 11, 12, 13, 20 Commonwealth v. Graham, 78 Mass. App. Ct. 127 (2010) ... 22, 24, 26 Commonwealth v. Heughan, 40 Mass. App. Ct. 102 (1996) ... 24 Commonwealth v. Isaiah I., 448 Mass. 334 (2007) ... 3 Commonwealth v. Mercado, 422 Mass. 367 (1996) ... 10 Commonwealth v. Moses, 408 Mass. 136 (1990) ... 23, 24 Commonwealth v. Motta, 424 Mass. 117 (1997) ... 11 *iii Commonwealth v. Pena, 63 Mass. App. Ct. 713, rev. denied, 450 Mass. 1102 (2007) ... 22 Commonwealth v. Ramos, 72 Mass. App. Ct. 773 (2008) ... 3 Commonwealth v. Riggins, 366 Mass. 81 (1974) ... 25 Commonwealth v. S. S. Kresge Co., 267 Mass. 145 (1929) ... 17 Commonwealth v. Santiago, 410 Mass. 737 (1991) ... 20

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Commonwealth v. Santiago, 53 Mass. App. Ct. 567, rev. denied, 436 Mass. 1103 (2002) ... 26 Commonwealth v. Silva, 366 Mass. 402 (1974) ... 22 Commonwealth v. Skea, 18 Mass. App. Ct. 685 (1984) ... 12 Commonwealth v. Stampley, 437 Mass. 323 (2002) ... 25 Commonwealth v. Summerlin, 393 Mass. 127 (1984) ... 23 Commonwealth v. Torres, 433 Mass. 669 (2001) ... 24 Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, aff'd 425 Mass. 99 (1997) ... 23, 25 Commonwealth v. Welch, 420 Mass. 646 (1995) ... 10 Commonwealth v. Yesilciman, 406 Mass. 736 (1990) ... 10 Commonwealth v. Young, 78 Mass. App. Ct. 548, rev. denied, FAR-19491 (March 2, 2011) ... 13 Green v. Wyman-Gordon, Inc., 422 Mass. 551 (1996) ... 16 Hanlon v. Rollins, 286 Mass. 444 (1934) ... 17 Law v. Griffith, 457 Mass. 349 (2010) ... 16 Oregon v. Brown, 721 P.2d 1357 (1986) ... 18, 19 *iv Oregon v. Smalley, 225 P. 3d 844 (Ore. Ct. App. 2010), rev. denied, 233 P.3d 818 (Ore. 2010) ... 18, 19 Oregon v. Tallman, 712 P. 2d 116 (Ore. Ct. App. 1985) ... 19 People v. Fillhart, 403 N.Y.S.2d 642 (1978) ... 21 People v. Mentch, 195 P. 3d 1061 (Cal. Ct. App. 2008) ... 20 People v. Urziceanu, 132 Cal. App. 4th 747 (2005) ... 20, 21 State v. Deering, 706 A. 2d 582. (Me. 1998) ... 20 State v. Kogan, 627 A. 2d 527 (Me. 1993) ... 20 Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837 (1986) ... 16 Thurdin v. SEI Boston, LLC, 452 Mass. 436 (2008) ... 16 STATUTES G.L. c. 94C, 1 ... 15 G.L. c. 94C, 31 ... 15

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G.L. c. 94C, 32L ... passim G.L. c. 94C, 34 ... 15, 16 ORS 475.864 ... 19 RULES Mass. R. Crim. P. 15 ... 2 *1 ISSUES PRESENTED I. Whether the motion judge erred in holding that the smell and observation of marijuana did not provide probable cause to search the defendants' SUV for more contraband because G.L. c. 94C, 32L, decriminalized possession of less than one ounce of marijuana. II. Whether the motion judge erred in holding that a reasonable officer would not have feared for his safety where the officer, who was outnumbered two to one very early in the morning, observed the defendant leaning down and fumbling with something, and where the defendant gave inconsistent answers to the officer's questions and acted suspiciously. STATEMENT OF THE CASE On December 18, 2009, a criminal complaint issued out of the Boston Municipal Court charging the defendants, Clint Daniel and Alyson Tayetto, with carrying a firearm without a license, receiving a firearm with a defaced serial number, possession of ammunition without a firearm identification cards, two counts of possession a large [FN1] capacity feeding device, and possession a loaded firearm (CA. 16-17). Defendant Tayetto was additionally charged with a motor *2 vehicle lights violation, failure to slow down, and making an improper turn (CA. 18-20). FN1. References to the Commonwealth's appendix will be cited as (C.A. __ ), and references to the Commonwealth's addendum will be cited as (Addendum __ ). References to the motion hearing transcript will be cited as (Tr. __ ). On April 2, 2010, the defendants filed motions to suppress evidence (C.A. 7). The honorable Tracy-Lee Lyons held a hearing on April 15, 2010, and took the matter under advisement (C.A. 7, 14). On May 17, 2010, in a written decision, Judge Lyons allowed the defendants' motions (Addendum 48-51; C.A. 6, 13). The Commonwealth filed a notice of appeal on May 20, 2010, and a motion for reconsideration and supplemental findings on May 24, 2010 (C.A. 6, 55). Judge Lyons denied the Commonwealth's motion for reconsideration on June 23, 2010, and issued additional findings that same day (Addendum 52-53; C.A. 5, 12). The Commonwealth filed its notice of appeal from Judge Lyons' denial of the motion for reconsideration on June 28, 2010 (C.A. 4, 12, 67). The Commonwealth also filed a motion to enlarge time in which to file a Mass. R. Crim. P. 15 petition, which Judge Lyons allowed to July 9, 2010 (C.A. 4, 13). On July 1, 2010, the Commonwealth petitioned for leave to appeal pursuant to Mass. R. Crim. P. 15(a)(2) (C.A. 68). On August 16, 2010, the single justice, Gants, J., allowed the Commonwealth's petition (C.A. 68). *3 STATEMENT OF FACTS

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A. The Motion Judge's Findings and Rulings

[FN2]

FN2. The Commonwealth has supplemented the judge's findings of fact with uncontested testimony necessarily credited by the judge. See Commonwealth v. Ramos, 72 Mass. App. Ct. 773, 774 (2008); see also Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (upon review, an appellate court may add facts if evidence was uncontroverted and undisputed and if motion judge explicitly or implicitly credited witnesses' testimony). This testimony is inserted in the judge's findings in brackets and is italicized. The motion judge found Officer DeLeo's testimony credible (Addendum 48), with the exception of his testimony that he had a concern for his safety at the time of the stop (Addendum 53). For ease of reference, the Commonwealth has inserted transcript citations into the motion judge's findings where appropriate. The motion judge made the following written findings: This Court finds from credible testimony of Boston Police Officer Paul A. DeLeo, Jr. the following facts: On December 13, 2009 Officer DeLeo was patrolling in a marked cruiser wearing a full uniform in the Dorchester section of Boston at the intersection of Adams and East Street (Tr. 10). At approximately 3:40 a.m. he observed a motor vehicle traveling in the opposite direction approach the intersection, at this time he observed the driver's side front headlight was not functioning (Tr. 12). The motor vehicle then made an abrupt left hand turn in front of his cruiser without using the directional signal (Tr. 12). The officer made a right hand turn onto East Street and drove behind the motor vehicle which was described as a Toyota SUV (sport utility vehicle) (Tr. 13). The officer stated he activated the emergency blue lights for the car to pull over (Tr. 13-14). He stated at this time the vehicle applied the brakes and made an abrupt stop in the middle *4 of the left travel lane (Tr. 14, 57). Officer DeLeo exited his cruiser and walked to the passenger side as is his custom in motor vehicle stops (Tr. 14-15). As he approached the SUV he saw the passenger's head down and his shoulders rocking back and forth [as if he was fumbling with something] [;] he could not see his hands (Tr. 15-16, 47). [This went on for approximately five seconds] (Tr. 47). When the officer arrived at the window the passenger sat upright (Tr. 16). [FN3] Officer DeLeo observed the window rolled down and could smell [a moderate to strong] odor of freshly burnt marijuana (Tr. 17-18, 55, 58). [Officer DeLeo recognized the smell of marijuana, as he had made hundreds of arrests for marijuana in his career as a police officer, including instances where people had been smoking marijuana right in front of him] (Tr. 18). [He asked defendant Daniel about the movements, and whether he was trying to hide something; defendant Daniel denied making any movements] (Tr. 18-19). Officer DeLeo asked the driver for her driver's license which she produced (Tr. 51). [Officer DeLeo asked the occupants if they had been smoking marijuana; they said that they had come from a party-and that was probably why he smelled marijuana] (Tr. 19, 49, 59). He then asked both occupants if they had any other marijuana on their person or in the car (Tr. 20). The driver, Tayetto produced two small bags from her clothes (Tr. 20). [Officer DeLeo testified based on his experience that, on several occasions, someone who produced a small amount of marijuana was often found in possession of a larger quantity after a search] (Tr. 60). Mr. Daniel did nothing at that point (Tr. 21). Officer DeLeo testified he had further conversation with the occupants and asked them if there [were] any drugs in the car (Tr. 21)? Officer DeLeo stated he did not ask Mr. Daniel directly but then observed him put a passport, keys, and a black folding knife on the dashboard and say this is all I got (Tr. 21). Officer DeLeo testified that this behavior was significant *5 to him because it was not common for someone to empty their pockets and that when they do it is because they are trying to conceal something (Tr. 23, 61). FN3. The judge explicitly accepted that the order was moderate to strong in her rulings (Addendum

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50). Officer DeLeo testified that traffic was beginning to back up on East Street due to the stop of the SUV (Tr. 24, 52). At this point he instructed the driver to move her car off to the side of the road, which she did with the passenger inside (Tr. 24). Officer DeLeo walked back to his cruiser and moved his vehicle (Tr. 25). The officer return[ed] to the passenger side and order[ed] Mr. Daniel out of the car and searches him for drugs and weapons (Tr. 26). He testified that his search of Mr. Daniel was based on the smell of marijuana and his movements (Tr. 68). The officer's search of Mr. Daniel did not reveal any drugs or weapons (Tr. 26). The officer told Mr. Daniel to sit on the front bumper of the police cruiser (Tr. 26-27). Officer DeLeo then proceeds to the driver side (Tr. 27). He orders Miss Tayetto out of the car and searches her for drugs and weapons (Tr. 27). No drugs or weapons were found on her person, other than the two bags she previously produced (Tr. 27-28). Miss Tayetto was instructed to sit on the steps of 33 East Street (Tr. 28). At this point the officer stated he went back to his cruiser and but [sic] not to check Miss Tayetto's license status (Tr. 29). Officer DeLeo exited his cruiser and opened the glove compartment in the SUV and discovered a firearm (Tr. 29). [He continued to smell marijuana even though the defendants were not in the car] (Tr. 30). At that time he called for back up assistance (Tr. 30). Officer DeLeo drew his firearm and ordered the passenger to the ground until assisting officers arrived on the scene (Tr. 30). In this case, the court can infer that the officer did not have heightened awareness of danger largely in part because of his actions and statements. Specifically, he allowed the driver to move the car with the passenger, two small bags of marijuana, and knife on the dashboard, while he left the *6 car with the occupants inside and returned to his cruiser to move it. The officer also did not call for back up assistance until after he ordered the occupants out of the vehicle and searched their persons and the vehicle. When questioned by defense counsel as to his heightened awareness and fear for his safety, the officer stated Ok - it was heightened. I was not shaking in my boots (Tr. 63). (Addendum 48-49). The motion judge issued the following written rulings of law in support of her allowance of the defendant's motion to suppress evidence: The traffic violation for the non-functioning headlight and not signaling when making a left hand turn provided a legally adequate ground for the initial stop. See, Commonwealth v. Santana, 420 Mass. 205, 207 (1995). The officer had justification to make a traffic stop for the violations stated above. The nature of the stop defines the scope of the initial inquiry by the officer. If the driver produces a valid license and registration, there is ordinarily no, reason to probe further. The driver should be cited and permitted to leave. Commonwealth v. McCleery, 345 Mass. 151 (1962). In this case there was no evidence that the driver's license and registration status was checked by the officer. The question before this court is whether the officer had sufficient reasons at the time of the stop to order the driver and passenger out of the car and search their person and the car. In Commonwealth v. Gonsalves, 429 Mass. 658, 633 (1999), the Supreme Judicial Court held that to justify ordering a driver out of their car during a routine traffic stop, the officer must have a reasonable belief that *7 the officer's safety, or the safety of others, is in danger. The Fourth Amendment requires that where a police officer

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has observed or suspects only a civil violation, as in Gonsalves, the officer may not engage in a search absent this reasonable belief of endangerment. Prior to the change in the law in Massachusetts effective on January 2, 2009, the odor of burnt marijuana provided probable cause to search a vehicle. See Commonwealth v. Garden, 451 Mass. 43, 47 (2008). Since the new law went into effect, the police may search an individual for marijuana where probable cause exists to believe that a suspect is concealing contraband, and exigent circumstances make it impracticable to obtain a warrant. There is no evidence before the court to suggest the Miss Tayetto was concealing contraband. She complied with the officer's request and took 2 small bags from her clothes. Miss Tayetto and the passenger Mr. Daniel, were also searched outside of the car and no drugs or weapons were recovered. There were also no exigent circumstances presented at the hearing to justify a warrantless search. The smell of burnt ?marijuana may imply use. In this case, the Officer DeLeo. described it as moderate to strong. The amount of marijuana produced by the driver was less than one ounce and is now a civil violation. Therefore there is no probable cause to search the occupants and the car. Officer DeLeo did not state Mr. Daniel appeared nervous or that he observed any furtive movements. He testified that the defendant rocked his shoulders back and forth in the seat upon his approach to the passenger side and sat up straight. Officer DeLeo also stated he could not see Mr. Daniel's hands as he walked up to the car. The Officer testified that he could not see Mr. Daniel's hands when he walked back to his cruiser and moved it. Officer DeLeo stated he told both the occupants to keep their hands on the dashboard when the car was *8 moved. There was no evidence presented that the occupants did not comply with the Officer's order. Quoting Commonwealth v. Gonsalves, 429 Mass. 658 we have expressly granted other protections to drivers and occupants of motor vehicles under Art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment. See Commonwealth v. Torres, 424 Mass. 153, 154-55, 157-64 (1997) that passenger left vehicle, without being asked to do so, on routine traffic stop provides no basis to further detain driver and passenger after issuing speeding ticket),; Commonwealth v. King, 389 Mass. 233, 244 (1983) (once officer, making valid investigatory check of parked car at rest area, verified driver's and passenger's licenses and vehicle registration, no grounds existed for further investigation or precautions); Commonwealth v. Loughlin, 385 Mass. 60, 61-63 & n.3 (1982) (search conducted after justifiable threshold inquiry wherein driver produced valid license and registration held impermissible); Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996) (after officer, having stopped driver for erratic driving, determined that there was no traffic offense and driver had produced valid license' and registration, he had no reason to issue exit orders to passengers, in spite of earlier furtive movements of one passenger). The court concludes that Article 14 requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle. For the foregoing reasons, the defendants motion to suppress the evidence is allowed. (Addendum 50-51). *9 In response to the Commonwealth's motion for supplemental findings, the motion judge issued the following supplemental findings: 1. The officer could not recall if he took possession of the knife before or after defendant Tayetto moved her car.

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2. The officer ordered the driver out of her car - searched her and told her to sit on the steps of 33 East Street. He then proceeded to the passenger side and ordered defendant Daniel out of the car and searched him. 3. The court did not find the officer's testimony credible regarding any heightened fear and/or safety concerns at the time of the stop. The court believes the officer searched the car based on a hunch not substantiated by reasonable suspicion and/or articulable facts. (Addendum 53). SUMMARY OF THE ARGUMENT I. The motion judge erroneously concluded that the enactment of G-L. c. 94C, 32L, deprived police of the ability to search for additional contraband once they smell or observe marijuana. Although G.L. c. 94C, 32L, altered the penalty for less than one ounce of marijuana, it did not alter its classification as a controlled substance. Marijuana, in any amount, remains contraband, and it is still not legal to ?possess it. Once Officer DeLeo smelled and observed marijuana then, he had probable cause to believe there was more in the SUV, and could search it (pp. 11-22). *10 II. The motion judge erroneously concluded a reasonable officer in Officer DeLeo's shoes.would not have had a legitimate fear for his safety. It would have been objectively reasonable for an officer, working alone early in the morning, to fear for his safety when he sees a vehicle's passenger appear to be fumbling with something, and when that passenger, upon questioning, gives evasive answers, acts suspiciously, and produces a knife. That legitimate fear for his safety in turn would have allowed that officer to frisk the vehicle for his safety (pp. 22-26). ARGUMENT I. BECAUSE OFFICER DELEO'S SMELL AND OBSERVATION OF MARIJUANA GAVE HIM PROBABLE CAUSE TO BELIEVE THAT HE WOULD FIND ADDITIONAL CONTRABAND IN THE VEHICLE, AND BECAUSE DEFENDANT DANIEL'S ACTIONS WERE SUFFICIENT TO CAUSE A REASONABLE OFFICER TO FEAR FOR HIS SAFETY, THE FRISK OF THE VEHICLE WAS PROPER. In reviewing a motion to suppress, a reviewing court will accept the motion judge's findings of fact unless there is clear error. Commonwealth v. Welch, 420 Mass. 646, 651 (1995); Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). The reviewing court will, however, make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996); (accord Commonwealth. v. Davis, 41 Mass. App. Ct. 793, *11 795 (1996)). Here, because the motion judge erroneously concluded that the smell of burnt marijuana and the observation of two bags of marijuana did not provide probable cause to believe that there was more contraband in the vehicle, and that because she erroneously concluded that a reasonable officer in Officer DeLeo's position would not have had a fear for his safety, the judge's allowance of the defendant's motion to suppress must be reversed. A. The Smell And Production Of Marijuana Provided Probable Cause To Search The SUV For More Contraband. An officer may search an automobile where that officer has probable cause to believe that the automobile con-

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tains contraband. Commonwealth v. Garden, 451 Mass. 43, 47 (2008) (citing Commonwealth v. Motta, 424 Mass. 117, 123-24 (1997)). Here, the motion judge erroneously concluded that Officer DeLeo did not have probable cause to believe that there was additional contraband in the SUV. When Officer DeLeo approached the SUV's passenger side window, he smelled' burnt marijuana (Tr. 17-18, 55, 58). This was a smell that he recognized; as an officer, he had made hundreds of arrests for marijuana, including arresting people for smoking marijuana right in front of him (Tr. 18). Once he smelled the smell of burnt marijuana, he had probable' cause to believe that the vehicle contained *12 more marijuana. [T]he perception by a police officer with training and experience in narcotics detection of a strong, fresh odor of burnt marijuana emerging from a motor vehicle provides[s] probable cause to search the vehicle. Garden, 451 Mass. at 47 (quoting Commonwealth v. Correia , 66 Mass. App. Ct. 174, 177, rev. denied, 447 Mass. 1102 (2006)). Probable cause to believe that the vehicle contained additional controlled substances was then significantly bolstered when defendant Tayetto produced two bags of marijuana (Tr. 20). Once Officer DeLeo smelled the burnt marijuana and observed the two bags of marijuana, he had probable cause to believe that there was additional marijuana or other contraband in the vehicle. It is widely accepted that the discovery of some controlled substances gives probable cause to search for additional controlled substances in the vicinity. Commonwealth v. Crespo, 59 Mass. App. Ct. 926, 927-28, rev. denied, 441 Mass. 1104 (2003) (quoting Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690 n.8 (1984)). Indeed, Officer DeLeo could have reasonably believed that there was more than one ounce of marijuana inside the SUV. In his experience, persons would voluntarily give up a small amount of contraband in order to conceal a larger stash (Tr. 60). Here, *13 Officer DeLeo reasonably relied on his experience to conclude that defendant Tayetto would produce two smaller bags of marijuana to divert his attention from much more marijuana in the car. See Commonwealth v. Figueroa, 412 Mass. 745, 751 (1992) (trooper could rely on experience to determine that packaging and placement of package gave probable cause to believe it was contraband). Once he had probable cause to believe that the vehicle contained additional controlled substances, Officer DeLeo acted reasonably in ordering the defendants out of the SUV in order to search it for additional contraband. See Commonwealth v. Young, 78 Mass. App. Ct. 548, 552, rev. denied, FAR-19491 (March 2, 2011) (officer may order passenger out of car to search it); Correia, 66 Mass. App. Ct. at 177-78 (once an officer has probable cause to believe that there are controlled substances in vehicle, he can order occupants out in order to search vehicle). The scope of Officer DeLeo's search was also reasonable. The scope of a warrantless search of an automobile . . . [is defined] by the object of the search and the places in which there is probable cause to believe that it may be found. Garden, 451 Mass. at 50 (quoting Commonwealth v. Cast, 407 Mass. 891, 906 (1990)). Here, additional contraband could have been hidden *14 anywhere in the car, including the glove box, which was within easy reach of the defendants. This conclusion was buttressed by the fact that the officer saw defendant Daniel's head down and his shoulders rocking back and forth as if he was fumbling with something, and by Daniel's denial that he had done so when Officer DeLeo asked him about it. See Cast, 407 Mass. at 902-03 (officers had probable cause to search those places in vehicle where contraband could have been hidden); Commonwealth v. DeGray, 77 Mass. App. Ct. 122, 126-27, rev. denied, 458 Mass. 1108 (2010) (smell of burnt marijuana coupled with observation of marijuana gave officer probable to believe more marijuana might be in trunk of vehicle); Carroll v. United States, 267 U.S. 132, 159, 161 (1925) (because officer had probable cause to believe that vehicle contained contraband - alcohol - he was justified in searching the vehicle for it). Nonetheless, the motion judge concluded that the recent change in the law pertaining to possession of marijuana [FN4][FN5] altered the analysis. This conclusion was error. While possession of one ounce or less of *15

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marijuana has been decriminalized through G-L. c. 94C, 32L, marijuana remains a class D controlled substance, which is unlawful to possess. General Laws c. 94C, 1, defines controlled substance as a drug, substance, or immediate precursor in any schedule or class referred to in this chapter. Section 31 of chapter 94C, in turn, classifies marijuana as a Class D controlled substance. See G.L. c. 94C, 31, class D(b) (1). And, G.L. c. 94C, 34 explicitly says that, notwithstanding 32L, FN4. The motion judge ruled that [t]he amount of marijuana produced by the driver was less than one ounce and is now a civil violation. Therefore there is no probable cause to search the occupants and the car (Addendum 50). FN5. This question - whether the enactment of G.L. c. 94C, 32L alters the probable cause determination - is currently being considered by the Supreme Judicial Court. That case, Commonwealth v. Benjamin Cruz, No. SJC-1073 8, was argued in the Supreme Judicial Court on December 9, 2010. [n]o person knowingly or intentionally shall possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the provisions of this chapter. Except as provided in section 32L of this Chapter or as hereinafter provided, any person who violates this section shall be punished by imprisonment for not more than one year or by a fine of not more than one thousand dollars, or by both such fine and imprisonment. General Laws c. 94C, 32L, thus did not alter the classification of marijuana as a controlled substances, but, rather, altered the penalty for possession of less than an ounce of this particular controlled substance. Its possession continues to be unlawful, albeit not *16 criminal, if the amount is one ounce or less. See G.L. c. 94C, 32L, 34. This conclusion finds support in both the text and history of 32L. General Laws c. 94C, 32L, specifically says that nothing therein shall be construed to repeal or modify existing laws, ordinances, or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marijuana . . ., laws concerning the unlawful possession of prescription forms of marijuana . . ., possession of more than one ounce of marijuana . . ., or selling, manufacturing or trafficking, in marijuana G.L. c. 94C, 32L. Ordinarily, if the language of a statute is plain and unambiguous it is conclusive as to the legislative intent. Law v. Griffith, 457 Mass. 349, 353 (2010) (citing Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986)). Occasionally, however, this Court has looked at the history and purpose of unambiguous statutes to determine legislative intent. Thurdin v. SEI Boston, LLC, 452 Mass. 436, 449 (2008) (citing Green v. Wyman-Gordon, Inc., 422 Mass. 551, 554-55 n.4 (1996)). Here, when voting in favor of the new marijuana law, voters in 2008 agreed that it would replace the criminal penalties for possession of one ounce or less of marijuana with a system of civil penalties, and would exclude information from the state's criminal record *17 system. Ballot Question 2: Massachusetts sensible marijuana policy initiative (CA. 69-71). A Yes vote would make possession of an ounce or less of marijuana a civil offense while A No vote would make no change to the drug laws. Id. Nothing in the referendum or the new law indicates that the new law would affect anything but the penalties for straight possession of one ounce or less of marijuana. [A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imper-

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fection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. Hanlon v. Rollins, 286 Mass. 444, 447 (1934) (citing Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148 (1929)). Viewed in this context then, the conclusion becomes thus: although the penalty for possession of less than one ounce of marijuana was altered to become a civil offense, section 32L did nothing to alter marijuana's classification as a controlled substance. As a result, possession of marijuana is still not legal, and marijuana continues to be contraband. As such, Officer DeLeo could search the car for more. See Cast, 407 *18 Mass. at 902-03; DeGray, 77 Mass. App. Ct. at 126-27; Carroll, 267 U.S. at 161. Oregon v. Smalley, 225 P. 3d 844 (Ore. Ct. App. 2010), rev. denied, 233 P.3d 818 (Ore. 2010), is on point. In Smalley, an officer smelled the odor of marijuana coming from the defendant's stopped vehicle. Id. at 845. The officer searched a backpack in the car from which the smell emanated from. Id. Inside the backpack, the officer found a large amount of marijuana. Id. The defendant moved to suppress the search of the backpack arguing that, because possession of less than an ounce of marijuana is subject only to a civil fine in Oregon, the officer had to believe that the backpack contained evidence of a crime, that is, more than one ounce of marijuana. Id. at 847. The Oregon Court of Appeals rejected the defendant's argument, holding that under the automobile exception, probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile. Id. at 848 (emphasis in original) (quoting Oregon v. Brown, 721 P.2d 1357, 1362 (1986)). The court held that marijuana was contraband, no matter the amount. Id. Once the officer had probable cause *19 to believe that the [FN6] car contained marijuana, then, he could search the car for additional contraband. Id. FN6. The Court in Smalley distinguished a previous decision - Oregon v. Tallman, 712 P. 2d 116 (Ore. Ct. App. 19 85) -- in which it had said that possession of less than one ounce [of marijuana] cannot by itself create probable cause to search for more. Id. at 119. In that case, however, the search at issue was one incident to arrest. Id. at 118-19. In Tallman, the Court had said that the defendant could not have been arrested for possession of less than an ounce of marijuana as. it was a civil offense, and thus, any resulting search incident to that illegal arrest was illegal. Id. at 118. Because the search at issue in Smalley was conducted pursuant to the automobile exception, the Tallman analysis did not apply. Smalley, 225 P.3d at 848. As discussed above, the same is true here. Like G.L. c. 94C, 32L, Oregon's statute, ORS 475.864(3), makes [FN7] possession of less than an ounce of marijuana a civil infraction subject to a fine. Nonetheless, in *20 both states, one cannot legally possess marijuana; it is contraband. And, Massachusetts law is in accord with Oregon's: when an officer has probable cause to believe that an automobile contains contraband, he may search that automobile to recover any contraband. See Garden, 451 Mass. at 47 (officer may search car where probable cause exists to believe that the automobile contained contraband) (citing Commonwealth v. Santiago, 410 Mass. 737, 744 (1991)). FN7. Oregon Revised Statutes 475.864 reads: (1) It is unlawful for any person knowingly or intentionally to possess marijuana. (2) Unlawful possession of marijuana is a Class B felony. (3) Notwithstanding subsection (2) of this section, unlawful possession of marijuana is a violation if the amount possessed is less than one avoirdupois ounce of the dried leaves, stems and flowers of the plant Cannabis family Moraceae. A violation under this subsection is punishable by a fine of not less than

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$500 and not more than $1,000 ... (4) Notwithstanding subsections (2) and (3) of this section, unlawful possession of marijuana is a Class C misdemeanor if the amount possessed is less than one avoirdupois ounce of the dried leaves, stems and flowers of the plan Cannibis family Moraceae and the possession takes place in a public place, as defined in ORS 161.015, that is within 1,000 feet of the real property comprising a public or private elementary, secondary or career school attended primarily by minors. Appellate courts in other states that have decriminalized the possession of small amounts of marijuana have also held that the decriminalization did not affect any other narcotics offenses. See, e.g., State v. Deering, 706 A.2d 582, 585 (Me. 1998) (quoting State v. Hogan, 627 A. 2d 527, 528 (Me. 1993) (although it is clear that the Legislature intended possession of less than 1 1/4 ounces of marijuana to be classified as a civil rather than a criminal violation criminal furnishing [possession with intent to distribute] was not decriminalized and does not require particular weight)); People v. Mentch, 195 P.3d 1061, 1069 n.7 (Cal. Ct. App. 2008) (citing People v. Urziceanu, 132 Cal. App. 4th 747, 772-73 (2005) (medical marijuana act is a narrowly drafted statute, not an attempt to decriminalize marijuana on a wholesale basis)); *21 Urziceanu, 132 Cal. App. 4th at 772-73 (California medical marijuana act allows qualified patient and primary caregiver to possess and cultivate marijuana for the patient's personal use despite the penal laws that outlaw these two acts for all others; act did not alter the other statutory prohibitions related to marijuana, including those barring transportation, possession for sale, and sale of marijuana); People v. Fillhart, 403 N.Y.S.2d 642, 643 (1978) (although possession of small amounts of marijuana was decriminalized, sale of any amount is a crime). Contra Alaska v. Crocker, 97 P.3d 93, 96-98 (Alaska Ct. App. 2004) (illegal to issue warrant to search house for small amount of marijuana because Alaskans have a right to possess a limited amount of marijuana for personal use in their homes). In the end, the enactment of G.L. c. 94C, 32L, had no effect on any narcotics violation except possession of one ounce or less of marijuana. Marijuana is still contraband, and it is still not legal to possess it. Having probable cause to believe that there was marijuana was in the car, the officer was duty bound to search the vehicle to determine whether there was any more marijuana or other contraband that needed to be seized. If there was, Officer DeLeo would have had to seize it. And, had the *22 officer discovered more than one ounce, or that the defendants intended to distribute any amount of marijuana, the defendants would have been subject to arrest and prosecution. Thus, because marijuana is still a controlled substance, section 32L does nothing to change the probable cause analysis once an officer smells or observes marijuana. B. A Reasonable Officer In Officer Deleo's Position Would Have Been Warranted In Fearing For His Safety And Thus Could Frisk The SUV For His Protection. The motion judge also erroneously held that the search was not legal because there was no safety concern that justified a search of the vehicle. An officer may conduct a Terry search of a vehicle where he has a reasonable concern for his safety. Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010); Commonwealth v. Pena, 69 Mass. App. Ct. 713, 718-19, rev. denied, 450 Mass. 1102 (2007) (officer may search vehicle where warranted in the belief that [his] safety ... or that of other persons was in danger. ) (quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974)). Although the motion judge did not credit Officer DeLeo's testimony that he [FN8] had a heightened awareness for his safety, it is not the *23 officer's subjective intent that this Court must look at, but whether, in the totality of the circumstances, a reasonable officer in Officer DeLeo's shoes would have had a reasonable belief that their safety, or the safety of others, [was] in danger. Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 654-55 (2006). See Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 510

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n.13, aff'd 425 Mass. 99 (1997) (inquiry is not whether testifying officer was in fear, but whether the circumstances would lead a reasonable person in the officer's shoes to believe that he was in danger). FN8. Both defendants pointed to the fact that Officer DeLeo allowed defendant Tayetto to pull her car forward so that traffic could move around them and did not call for backup as evidence that Officer DeLeo was not in fear for his safety (Tr. 70-71, 74-75). Here, there were several factors that would have led a reasonable officer in Officer DeLeo's position to fear for his safety. At the time Officer DeLeo stopped the vehicle, it was very early in the morning and he was working alone (Tr. 10, 12). See, e.g., Commonwealth v. Summerlin, 393 Mass. 127, 129-31 (1984) (proper for officer, who was working alone late at night, to seize bag in car with two defendants who were parked the wrong way on a one-way street so as to protect his safety). As he approached the vehicle, he noticed that he was outnumbered (Tr. 16, 58). See Commonwealth v. Hoses, 408 Mass. 136, 141-42 (1990) (reasonable for officer to request driver's keys where *24 officer was outnumbered three to one). He also noticed that defendant Daniel's head was [FN9] down and that he was rocking back and forth as if he was fumbling with something, which could have been a weapon (Tr. 15-16, 47). See, e.g., Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (observation of passengers bent over and messing with something on floor of stopped vehicle suggested that they might be concealing or retrieving a weapon); Moses, 408 Mass. at 141-42 (passenger ducking under dashboard made officer reasonably suspect passenger was concealing weapon); Graham, 78 Mass. App. Ct. at 129-30 (police officer reasonably concerned for safety where passenger had kept reaching in between console and where some of passengers could have retrieved a weapon once they had gotten back into vehicle). Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104-05 (1996) (back seat passenger bending down justified concern for safety). Defendant Daniel's movements were the very type that numerous cases have recognized as suggestive of retrieving or concealing *25 an object, [and that] raise legitimate safety concerns to an officer conducting traffic stop. Commonwealth v. Stampley, 437 Mass. 323, 325-26 (2002). These actions alone were sufficient for Officer DeLeo to frisk the SUV for his safety. FN9. Although the motion judge noted in her rulings that Officer DeLeo did not say that he observed any furtive movements, she credited his testimony that he observed defendant Daniel's shoulders rocking back and forth (Addendum 49). This action, in Officer DeLeo's words, made him appear as if he was fumbling with something (Tr. 15). The motion judge did not explicitly note that it appeared to Officer DeLeo that the defendant was fumbling with something, but, as discussed above, n.1, she implicitly credited his testimony on this issue. There was, however, more. The defendant acted suspiciously and gave evasive answers to Officer DeLeo's questions; when the officer approached the vehicle, defendant Daniel sat straight up and, in response to the officer's question, denied making any movements (Tr. 18-19). These actions supported a concern that the defendant had been fumbling with something that he did not want the officer to know about. See, e.g., Commonwealth v. Riggins, 366 Mass. 81, 88 (1974) ( [i]mplausible answers to police questions will, with other facts, support a finding of probable cause to conduct a search . . . as will peculiar behavior and evasive replies)- This concern was compounded by the defendant's spontaneous offering of everything in his pockets, including a knife (Tr. 21), which was an action that Officer DeLeo reasonably viewed as a red herring. Finally, Officer DeLeo observed two bags of marijuana (Tr. 20). An officer as experienced as Officer DeLeo reasonably could have drawn a connection between narcotics and violence. Cf. Va Meng Joe, 40 Mass. App. Ct. at 510 n.13 (frequent *26 association of guns with drug dealing . . . has been noted in appellate decisions).

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Given this aggregate of factors, a reasonable officer in Officer DeLeo's shoes would have had a reasonable apprehension for his safety, and thus could have properly ordered the defendants out and frisked the vehicle in order to be sure that there were no weapons inside. Officer DeLeo was not required to risk becoming a victim upon the [defendants'] reentry into the vehicle. Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 571, rev. denied, 436 Mass. 1103 (2002); see also Graham, 78 Mass. App. Ct. at 129-30 (reasonable for officer to check glove box where any passenger not arrested could have retrieved weapon from that spot). His frisk was, therefore, valid. *27 CONCLUSION For the foregoing reasons, the Commonwealth respectfully requests that this Honorable Court reverse the motion judge's order allowing the defendants' motion to suppress COMMONWEALTH OF MASSACHUSETTS, Appellant, v. CLINT DANIEL & ANOTHER, Defendant-Appellee. 2011 WL 1569150 (Mass.App.Ct. ) (Appellate Brief ) END OF DOCUMENT

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