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SJC-11814

COMMONWEALTH vs. ELIVETTE RODRIGUEZ.

Bristol. March 5, 2015. - September 22, 2015.

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

Hines, JJ.

Marijuana. Threshold Police Inquiry. Search and Seizure, 

Threshold police inquiry, Reasonable suspicion.

Constitutional Law, Investigatory stop, Reasonable 

suspicion.

Complaint received and sworn to in the New Bedford Division 

of the District Court Department on April 27, 2012.

A pretrial motion to suppress evidence was heard by Joseph 

I. Macy, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Gants, J., in the Supreme Judicial Court 

for the county of Suffolk, and the appeal was reported by him to 

the Appeals Court. The Supreme Judicial Court on its own 

initiative transferred the case from the Appeals Court.

John L. Calcagni, III, for the defendant.

Corey T. Mastin, Assistant District Attorney, for the 

Commonwealth.
2

BOTSFORD, J. This case, in which the defendant appeals 

from the denial of her motion to suppress, centers on a motor 

vehicle stop based on a police officer's detection of an odor of 

burnt marijuana coming from the vehicle. It requires us to 

evaluate further the impact of G. L. c. 94C, §§ 32L-32N, 

inserted by St. 2008, c. 387, §§ 2-4, which decriminalized 

possession of one ounce or less of marijuana. For the reasons 

discussed hereafter, we conclude that at least in a stop such as 

this one, where there was at best reasonable suspicion to 

believe that a civil marijuana infraction was occurring, but not 

probable cause, the stop was impermissible. Accordingly, the 

order denying the defendant's motion to suppress must be 

reversed.

1. Background. To provide context, we summarize the 

evidence presented at the hearing on the defendant's motion to 

suppress.1 On the evening of April 26, 2012, Detective Daniel 

Amaral of the New Bedford police department was driving an 

unmarked police cruiser assisting a narcotics surveillance team

of police officers when he came upon a motor vehicle that he had 

 

1 At the evidentiary hearing, one witness testified, 

Detective Daniel Amaral of the New Bedford police department. 

Following the hearing, the motion judge wrote a brief memorandum 

of decision, but it does not include specific factual findings. 

The information summarized in the text is taken from the 

testimonial evidence presented. This factual information does 

not appear to be disputed, and it is not inconsistent with the 

motion judge's decision. See Commonwealth v. Jones-Pannell, 472

Mass. 429, 436-438 (2015).
3

stopped once before. During the earlier stop, Amaral had 

arrested the woman who normally drove that vehicle for heroin 

possession. He knew that the surveillance team was interested 

in the vehicle because of its connection to the earlier drugrelated arrest. Accordingly, he followed the vehicle and 

thereafter received instruction from the surveillance team to 

pull it over.2

As Amaral followed the vehicle, he detected an odor of 

burnt marijuana coming from it.

3 Based on the odor, and without 

having seen the driver of the vehicle commit any traffic 

violations, Amaral pulled the vehicle over and approached the 

driver's side. The driver, a male, held in his right hand what 

Amaral recognized as a marijuana cigar. Amaral asked the driver 

whether the cigar was what was causing the odor, and the driver 

responded that it was. Amaral then confiscated the cigar and 

asked for the driver's license and registration. The stop 

 

2 The background that led to the instruction was the 

following: the surveillance team that night saw the vehicle 

stop in front of a "home of interest"; the driver of the vehicle 

went into the home, at which point the team instructed Amaral 

that if the driver did not remain in the residence long, the 

vehicle should be stopped and the driver questioned. Minutes 

after the driver went into the home, the driver returned to the 

vehicle and drove away.

3 Both Amaral and the vehicle driver had their windows down, 

allowing Amaral to smell the odor. In addition, Amaral had 

significant experience in narcotics investigation and 

interdiction, and we assume without deciding that he was 

qualified to identify the odor as that of burnt marijuana.
4

continued, and in the course of it, police discovered a plastic 

bag in the vehicle containing sixty Percocet pills.4 The 

defendant, a passenger in the vehicle at the time of the stop, 

was charged with possession with intent to distribute a class B 

substance in violation of G. L. c. 94C, § 32A (a),

5 conspiracy to 

violate the drugs laws under G. L. c. 94C, § 40, and a drug 

violation near a school or park under G. L. c. 94C, § 32J -- all

in connection with the pills.

On November 30, 2012, the defendant moved to suppress 

evidence of the pills. The motion judge held an evidentiary 

hearing on May 3, 2013; the only issue addressed was the 

propriety of the motor vehicle stop. Following the hearing, the 

judge concluded that the odor of burnt marijuana, coupled with 

other "suspicious activity implicating but not rising to drug 

activity" involving the vehicle, justified the stop. A single 

justice of this court granted the defendant's request for leave 

to pursue an interlocutory appeal of the order denying the 

motion to suppress, and directed the appeal to be heard in the 

 

4 The defendant's attorney represented during oral argument 

before us that the manner in which the bag of pills was 

discovered was the subject of a separate motion to suppress that 

remains pending in the District Court. The record in this case 

contains no information concerning how the pills were 

discovered, but the issue is not relevant to our analysis here.

5 The defendant was originally charged with cocaine 

trafficking in violation of G. L. c. 94C, § 32E (b). That

charge was eventually reduced to possession with intent to 

distribute a class B substance.
5

Appeals Court. See Mass. R. Crim. P. 15 (a) (2), as appearing 

in 422 Mass. 1501 (1996); G. L. c. 211, § 4A. We transferred 

the case from the Appeals Court on our own motion.

2. Discussion. "When reviewing a motion to suppress 

evidence, we adopt the motion judge's subsidiary findings of 

fact absent clear error, but we independently determine the 

correctness of the judge's application of constitutional 

principles to the facts as found." Commonwealth v. Catanzaro, 

441 Mass. 46, 50 (2004). See Commonwealth v. Craan, 469 Mass. 

24, 26 (2014).

In 2008, as a result of an initiative petition adopted by 

the voters, possession of one ounce or less of marijuana changed 

from being a criminal to a civil offense in the Commonwealth. 

See G. L. c. 94C, §§ 32L-32N. See also Commonwealth v. Cruz, 

459 Mass. 459, 470 (2011). As a consequence of the change, this 

court has concluded that once police have validly stopped a 

vehicle for a reason independent of marijuana, the odor of burnt 

marijuana alone does not create probable cause or even a 

reasonable suspicion of criminal activity sufficient to justify 

ordering the vehicle's occupants to get out of the vehicle. See

Cruz, supra at 472, 476. We also have concluded that the odor 

of either burnt or unburnt marijuana does not support a finding 

of probable cause to search a vehicle without a warrant. See 

Commonwealth v. Overmyer, 469 Mass. 16, 23 (2014); Cruz, supra
6

at 475-476. See also Craan, 469 Mass. at 29-35; Commonwealth v. 

Daniel, 464 Mass. 746, 751-757 (2013). Recognizing the changed 

status of possession of small quantities of marijuana, the

Commonwealth concedes that in the present case, the odor of 

burnt marijuana, even when combined with the other limited 

indicia of a drug transaction that preceded the vehicle stop,

did not amount to reasonable suspicion of criminal activity that 

would have justified the police in stopping the vehicle for 

investigative purposes. Nonetheless, because c. 94C, § 32L,

simply decriminalizes the possession of one ounce or less of 

marijuana and replaces the criminal penalty with a civil penalty 

for such possession,

6 the Commonwealth analogizes the stop that 

occurred here to routine stops of automobiles for civil traffic

violations. Pursuing the analogy, the Commonwealth urges us to 

affirm the order denying the defendant's motion to suppress on 

the ground that, just as an officer may stop a motor vehicle to 

 

6 General laws c. 94C, § 32L, provides, in pertinent part:

"Notwithstanding any general or special law to the 

contrary, possession of one ounce or less of marihuana 

shall only be a civil offense, subjecting an offender who 

is eighteen years of age or older to a civil penalty of one 

hundred dollars and forfeiture of the marihuana, but not to 

any other form of criminal or civil punishment or 

disqualification."
7

issue a citation for a civil traffic offense, an officer may do 

so in order to issue a civil citation for marijuana possession.

7

Because both the Commonwealth and the defendant premise 

much of their arguments on the statutes that establish 

procedures for issuing citations for traffic violations and for 

civil marijuana infractions, we begin our analysis with a review 

of those statutes. General Laws c. 90C, §§ 2 and 3 (A), 

authorize police to issue citations for motor vehicle traffic 

violations, including civil infractions.8,9 The Commonwealth 

 

7 Recognizing that this argument differs from the basis on 

which the District Court motion judge denied the defendant's 

motion to suppress, the Commonwealth argues that we may 

nevertheless affirm the denial "on grounds different from those 

relied on by the motion judge if the correct or preferred basis 

for affirmance is supported by the record and the findings." 

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).

8 General Laws c. 90C, § 2, provides, in pertinent part:

"[A]ny police officer assigned to traffic enforcement 

duty shall, whether or not the offense occurs within his 

presence, record the occurrence of automobile law 

violations upon a citation . . . and [indicate] thereon 

. . . whether the citation shall constitute a written 

warning and, if not, whether the violation is a criminal 

offense for which an application for a complaint as 

provided by [G. L. c. 90C, § 3 (B)] shall be made, whether 

the violation is a civil motor vehicle infraction which may 

be disposed of in accordance with [G. L. c. 90C, § 3 (A)], 

or whether the violator has been arrested in accordance 

with [G. L. c. 90, § 21]. Said police officer shall 

inform the violator of the violation and shall give a copy 

of the citation to the violator. Such citation shall be 

signed by said police officer and by the violator, and 

whenever a citation is given to the violator in person that 

fact shall be so certified by the police officer. The 
8

argues, and the defendant agrees, that although these statutes 

contain no express language regarding police authority to stop 

moving vehicles for the purpose of issuing citations for civil 

traffic violations, such stops have been permitted. See

Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ("Where police 

have observed a traffic violation, they are warranted in 

stopping a vehicle"). See also Commonwealth v. Feyenord, 445 

Mass. 72, 75 (2005), cert. denied, 546 U.S. 1187 (2006)

(permitting vehicle stop based on inoperable headlight); 

 

violator shall be requested to sign the citation in order 

to acknowledge that it has been received. . . .

"A failure to give a copy of the citation to the 

violator at the time and place of the violation shall 

constitute a defense in any court proceeding for such 

violation, except where the violator could not have been 

stopped or where additional time was reasonably necessary 

to determine the nature of the violation or the identity of 

the violator, or where the court finds that a circumstance, 

not inconsistent with the purpose of this section to create 

a uniform, simplified and non-criminal method for disposing 

of automobile law violations, justifies the failure. In 

such case the violation shall be recorded upon a citation 

as soon as possible after such violation and the citation 

shall be delivered to the violator or mailed to him at his 

residential or mail address or to the address appearing on 

his license or registration as appearing in registry of 

motor vehicles records."

9 General laws c. 90C, § 3 (A) (1), provides, in pertinent 

part:

"If a police officer observes or has brought to the 

officer's attention the occurrence of a civil motor vehicle 

infraction, the officer may issue a written warning or may 

cite the violator for a civil motor vehicle infraction 

. . . ."
9

Commonwealth v. Santana, 420 Mass. 205, 207 (1995) (permitting 

stop for defective taillight).10 The Commonwealth contends that, 

similar to these traffic violation statutes, G. L. c. 94C, 

§ 32N,11 provides a mechanism for issuing civil citations for 

marijuana possession -- specifically, through G. L. c. 40, 

§ 21D, which governs noncriminal disposition of certain 

municipal enactments12 -- and that this mechanism should be 

 

10 The parties did not identify, nor did we find, any case 

that directly discusses whether G. L. c. 90C, §§ 2 and 3 (A), 

authorize police officers to stop moving automobiles in order to 

issue traffic citations. However, cases citing these statutes 

suggest that the statutes have been read as authorizing vehicle 

stops. See Commonwealth v. Goewey, 69 Mass. App. Ct. 429, 432 

(2007), S.C., 452 Mass. 399, 405 (2008) (citing G. L. c. 90C, 

§ 3 [A] [1], as support for conclusion that traffic stop was 

valid). See also Commonwealth v. Correia, 83 Mass. App. Ct. 

780, 786 (2013) (mentioning G. L. c. 90C, § 2).

11 See G. L. c. 94C, § 32N, first par. ("The police 

department serving each political subdivision of the 

Commonwealth shall enforce [G. L. c. 94C, § 32L,] in a manner 

consistent with the non-criminal provisions of [G. L. c. 40, 

§ 21D]").

12 General Laws c. 40, § 21D, provides, in pertinent part:

"Any city or town may by ordinance or by-law not 

inconsistent with this section provide for non-criminal 

disposition of violations of any ordinance or by-law or any 

rule or regulation of any municipal officer, board or 

department the violation of which is subject to a specific 

penalty.

"Any such ordinance or by-law shall provide that any 

person taking cognizance of a violation of a specific 

ordinance, by-law, rule or regulation which he is empowered 

to enforce, hereinafter referred to as the enforcing 

person, as an alternative to initiating criminal 

proceedings shall, or, if so provided in such ordinance or 
10

understood as also authorizing police to stop vehicles to issue 

civil marijuana citations. Furthermore, the Commonwealth notes

that in order for a police officer to be able to issue a 

citation for marijuana possession to a person in a moving 

automobile and still comply with the requirements of c. 40, 

§ 21D, the officer must be able to order the car to stop.13

 

by-law, may, give to the offender a written notice to 

appear before the clerk of the district court having

jurisdiction thereof at any time during office hours, not 

later than twenty-one days after the date of such 

notice. . . . Such notice shall be signed by the enforcing 

person, and shall be signed by the offender whenever 

practicable in acknowledgment that such notice has been 

received.

"The enforcing person shall, if possible, deliver to 

the offender a copy of said notice at the time and place of 

the violation. If it is not possible to deliver a copy of 

said notice to the offender at the time and place of the 

violation, said copy shall be mailed or delivered by the 

enforcing person, or by his commanding officer or the head 

of his department or by any person authorized by such 

commanding officer, department or head to the offender's 

last known address, within fifteen days after said 

violation. Such notice as so mailed shall be deemed a 

sufficient notice, and a certificate of the person so 

mailing such notice that it has been mailed in accordance 

with this section shall be prima facie evidence thereof."

13 General Laws c. 40, § 21D, like G. L. c. 90C, § 2, in the 

automobile law context, directs the officer issuing a citation 

in accordance with these statutes to give the offender a copy of 

the notice of the offense "at the time and place of the 

violation" if possible. (See notes 8 and 12, supra.) The 

Commonwealth argues that compliance with this requirement would 

never be possible if the offender were in a moving automobile 

that the officer had no authority to stop. Moreover, it would 

be likely that the officer could not even obtain the offender's 

name and address, as c. 40, § 21D, requires, while the offender 

is in a moving automobile.
11

Focusing first on our traffic violation statutes, we agree 

with the position of both the Commonwealth and the defendant 

that because many of these laws pertain specifically to moving 

vehicles, and G. L. c. 90C, § 2, requires an officer to give a 

copy of a traffic citation to the violator and to ask that 

person to sign the citation, c. 90C, §§ 2 and 3 (A), implicitly

authorize police officers to stop motor vehicles in order to 

issue traffic citations. Otherwise, it would be impossible for 

police to issue citations for moving traffic violations. 

Moreover, many of the traffic violation laws serve a public 

safety purpose, and allowing police to stop moving vehicles that 

are violating them in order to issue traffic citations is one 

mechanism of promoting safety on our roads. The parties' 

reading of c. 90C, §§ 2 and 3 (A), is consistent with this 

purpose.

Like G. L. c. 90C, §§ 2 and 3 (A), neither G. L. c. 94C, 

§ 32N, nor G. L. c. 40, § 21D, says anything about police 

authority to stop moving vehicles for the purpose of issuing 

citations -- they are simply silent on this point. But in 

contrast to c. 90C, §§ 2 and 3 (A), the marijuana possession 

decriminalization statutes do not directly relate to moving 

vehicles or to traffic safety. We need not resolve here, 

however, the question whether, and if so, in what circumstances,

c. 94C, § 32N, and c. 40, § 21D, authorize police to stop a 
12

motor vehicle in order to enforce the civil penalties for 

marijuana possession under G. L. c. 94C, § 32L. This is so 

because quite apart from these statutes, there are 

constitutional considerations that must first be taken into 

account, and in the end, these constitutional considerations 

carry the day.

A police stop of a moving automobile constitutes a seizure, 

and therefore, any such stop, whatever its purpose, must comply 

with the Fourth Amendment to the United States Constitution and 

with art. 14 of the Massachusetts Declaration of Rights. See 

Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000). See also 

Whren v. United States, 517 U.S. 806, 809-810 (1996); Delaware

v. Prouse, 440 U.S. 648, 653 (1979). We recognize that in the 

civil traffic law violation context, appellate decisions in 

Massachusetts have deemed constitutionally permissible stops

that factually appeared to satisfy either the probable cause or 

reasonable suspicion standard.

14 See Santana, 420 Mass. at 206-

207; Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999). 

See also Bacon, 381 Mass. at 643-644. Cf. Commonwealth v. 

 

14 Other courts have allowed under the Fourth Amendment to 

the United States Constitution stops based on reasonable 

suspicion of traffic offenses. See United States v. Fox, 393 

F.3d 52, 59 (1st Cir. 2004), rev'd on other grounds, 429 F.3d 

316 (2005). See also United States v. Delfin-Colina, 464 F.3d 

392, 396-397 (3d Cir. 2006) (reviewing Federal Circuit Courts of 

Appeals that have allowed stops to enforce traffic laws based on 

reasonable suspicion).
13

Washington, 459 Mass. 32, 38-39 & n.14 (2011).15 Nevertheless, 

for the reasons discussed infra, similar stops to enforce the 

civil penalty for marijuana possession are constitutionally 

distinct, and warrant their own Fourth Amendment and art. 14 

analysis.

In undertaking that analysis here, the first task is to 

determine whether we are dealing with an issue of probable cause 

or reasonable suspicion. In Commonwealth v. Garden, 451 Mass. 

43 (2008), we stated that the "odor of marijuana is sufficiently 

distinctive that it alone can supply probable cause to believe 

that marijuana is nearby." Id. at 48. See Commonwealth v. 

Lawrence L., 439 Mass. 817, 823 (2003) ("odors alone may be 

sufficient to satisfy the probable cause requirement of the 

Fourth Amendment"). However, that decision preceded the 

decriminalization of possession of one ounce or less of 

marijuana. See Garden, supra at 43. Since then, we have 

"reconsider[ed] our jurisprudence in light of the change to our 

laws." See Cruz, 459 Mass. at 464 & n.8. In particular, our 

analysis of the meaning that can be derived from the odor of 

marijuana alone has evolved, such that, as indicated previously, 

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

 

15 This is so even though the standards of probable cause 

and reasonable suspicion are tied to the investigation of 

criminal conduct, not infractionary conduct. See Commonwealth

v. Cruz, 459 Mass. 459, 465-466 (2011).
14

unburnt marijuana to provide probable cause to believe that a 

criminal amount of the drug is present, see Overmyer, 469 Mass. 

at 23; nor is such a determination of probable cause appropriate 

based on the smell of burnt marijuana combined with the presence 

of two small bags totaling less than one ounce. See Daniel, 464 

Mass. at 747, 751-752. Although we have not explicitly 

addressed since the passage of the decriminalization statute 

whether the odor of marijuana alone creates probable cause to 

believe that any amount of the drug is present, these cases 

remind us that in reevaluating what inferences may now be drawn 

from evidence that suggests the possible presence of marijuana, 

we must also keep in mind the varied and occasionally complex

contexts in which such evidence presents itself.

With this principle in mind, Garden's conclusion that the 

odor of marijuana alone creates probable cause to believe that 

the drug is still present is insufficiently nuanced, because it 

fails to account for the significant possibility that the odor 

of burnt marijuana may be present on a person or in a vehicle, 

but the drug itself is not. As we noted in Garden itself, where 

the occupants of a vehicle wore clothes that smelled like 

marijuana but a patfrisk of these persons produced no drugs, the 

odor of burnt marijuana in this context may have "suggest[ed] 

that the defendant, or others in the car, had been smoking 

marijuana in the not too distant past." Id. at 52. We add here 
15

another possibility: that the individuals who smelled like 

marijuana could have been at a social gathering where others 

smoked marijuana. See Daniel, 464 Mass. at 747, 756 (interior 

of vehicle smelled of burnt marijuana; driver attributed this 

smell to being at party where others smoked). These examples 

illustrate the point that although the occupants of a vehicle, 

or the vehicle's interior, might smell like burnt marijuana, 

that does not necessarily mean that an occupant of the vehicle 

currently possesses any amount of marijuana. Therefore, upon 

further consideration of these possibilities, and keeping in 

mind that probable cause determinations turn on "probabilities," 

including "factual and practical considerations of everyday 

life," see Commonwealth v. Cast, 407 Mass. 891, 895 (1990) 

(citation omitted), we conclude that in a case such as the 

present one, where the only factor leading an officer to 

conclude that an individual possesses marijuana is the smell of 

burnt marijuana, this factor supports a reasonable suspicion 

that that individual is committing the civil offense of 

possession of a small quantity of marijuana, but not probable 

cause to believe that he or she is committing the offense. 

Therefore, the question in this case is whether the Fourth 

Amendment and art. 14 permit police to stop a vehicle where they 

have reasonable suspicion, but not probable cause, to believe 
16

that a civil, infractionary offense of marijuana possession is 

occurring or has occurred.

"[T]he 'ultimate touchstone of both the Fourth Amendment 

. . . and art. 14 . . . is reasonableness.'" Overmyer, 469 

Mass. at 20, quoting Commonwealth v. Entwistle, 463 Mass. 205, 

213 (2012), cert. denied, 133 S. Ct. 945 (2013). Thus, to 

evaluate the permissibility of particular law enforcement 

practices, including police stops of moving vehicles where there 

is no probable cause to suspect the vehicle's involvement in 

criminal activity, courts have balanced the intrusiveness of the 

police activities at issue against any legitimate governmental 

interests that these activities serve. See Prouse, 440 U.S. at 

654, 658-661 (prohibiting vehicle stops without any evidence of 

traffic or equipment violation). See also Whren, 517 U.S. at 

817-818 (where police lack probable cause for vehicle stop, 

detailed balancing of interests has determined stop's 

reasonableness). Cf. Catanzaro, 441 Mass. at 56 ("There is no 

ready test for reasonableness [under art. 14] except by 

balancing the need to search or seize against the invasion that 

the search or seizure entails"). In balancing these factors, we 

keep in mind that "art. 14 may provide greater protection than 

the Fourth Amendment against searches and seizures." Rodriguez,

430 Mass. at 584.
17

Regardless of the reason for it, a police stop of a moving 

vehicle can be "humiliating, frightening, and embarrassing" for 

the vehicle's occupants, and can raise the possibility of arrest 

and incarceration for a crime unrelated to the original reason 

for the stop, as the present case illustrates. See Woods, 

Decriminalization, Police Authority, and Routine Traffic Stops, 

62 U.C.L.A. L. Rev. 672, 713 (2015). Cf. Prouse, 440 U.S. at 

657 (random vehicle stops to check documents "generally entail 

law enforcement officers signaling a moving automobile to pull 

over to the side of the roadway, by means of a possibly 

unsettling show of authority[,] . . . interfere with freedom of 

movement, are inconvenient, . . . consume time . . . [and] may 

create substantial anxiety"). However, in the automobile law 

context, allowing police to make these stops serves a 

significant governmental interest. As discussed previously, 

many of our traffic violation statutes regulate moving cars and

relate directly to the promotion of public safety; even those 

laws that have to do with maintaining a vehicle's equipment in 

accordance with certain standards may also be safety-related. 

See id. at 658 (recognizing States' "vital interest" in vehicle 

inspection and registration requirements, which ensure that all 

vehicles are "fit for safe operation"). Permitting stops based 

on reasonable suspicion or probable cause that these laws may 

have been violated gives police the ability to immediately 
18

address potential safety hazards on the road. Thus, although a 

vehicle stop does represent a significant intrusion into an 

individual's privacy, the governmental interest in allowing such 

stops for the purpose of promoting compliance with our 

automobile laws is clear and compelling.

No similar governmental interest supports allowing police 

to stop a vehicle based on reasonable suspicion that someone in 

the vehicle possesses an ounce or less of marijuana in violation 

of G. L. c. 94C, § 32L. Although vehicle stops to investigate 

civil marijuana infractions serve a general law enforcement 

purpose, there is no obvious and direct link between enforcement 

of the civil penalty for marijuana possession and maintaining 

highway safety.16 Moreover, particularly because possession of 

one ounce or less of marijuana was decriminalized through a 

ballot initiative, our analysis of the governmental interests 

 

16 It is important to distinguish simple marijuana 

possession, which is at issue here, from the offense of 

operating a vehicle while under the influence of marijuana. 

Driving while under the influence of marijuana is a serious 

offense that may well present safety hazards requiring the 

immediate involvement of police. See G. L. c. 90, § 24 (1) (a) 

(1) (prohibiting driving while under influence of substances, 

including marijuana). However, the mere fact that a vehicle 

driver or passenger possesses marijuana does not mean that the 

driver has been operating while impaired. Thus, we have 

rejected the suggestion that evidence that a driver possessed a 

noncriminal amount of marijuana, without any evidence of the 

driver's impairment, created probable cause to believe the 

driver was operating while under the influence of marijuana and 

justified searching the vehicle. Commonwealth v. Daniel, 464 

Mass. 751, 754-757 (2013).
19

served by allowing police to stop vehicles in order to enforce 

the civil penalty under this law "must give effect to the clear 

intent of the people of the Commonwealth in accord with art. 14 

. . . and the Fourth Amendment." See Cruz, 459 Mass. at 464-

465. We have determined that the people's intent in 

decriminalizing possession of this small quantity of marijuana 

was to establish that this offense was no longer "a serious 

infraction worthy of criminal sanction," and that those who 

commit this offense should be treated differently from other 

drug offenders. Id. at 471. In particular, we have identified 

three policy goals that c. 94C, § 32L, was intended to serve:

"to reduce the direct and collateral consequences of possessing 

small amounts of marijuana, to direct law enforcement's 

attention to serious crime, and to save taxpayer resources 

previously devoted to targeting the simple possession of 

marijuana." Commonwealth v. Jackson, 464 Mass. 758, 765 (2013). 

See Cruz, supra at 471-472. Permitting police to stop a vehicle 

based on reasonable suspicion that an occupant possesses 

marijuana does not serve these objectives. Rather, it 

encourages police to continue to investigate and to pursue 

individuals suspected of this offense in the same manner as 

before decriminalization, it does not refocus police efforts on 

pursuing more serious crime, and it subjects individuals who 
20

police merely suspect may be committing a nondangerous, civil 

offense to all of the potential consequences of a vehicle stop.

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. 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.) Because stops based on reasonable 

suspicion of a possible civil marijuana infraction do not

promote highway safety and run contrary to the purposes of G. L. 

c. 94C, § 32L, we are disinclined to extend the rule that allows 

vehicle stops based on reasonable suspicion of a civil motor 

vehicle offense to stops to enforce the civil penalty for 

possession of one ounce or less of marijuana. Such stops are

unreasonable; therefore, the stop in this case violated art. 14.

3. Conclusion. The order denying the defendant's motion 

to suppress is reversed. The case is remanded to the District 

Court for further proceedings consistent with this opinion.

So ordered. 
CORDY, J. (dissenting, with whom Spina, J., joins). "An 

Act establishing a sensible State marijuana policy," codified at 

G. L. c. 94C, §§ 32lL-32N, did not legalize the possession of

marijuana; it merely decriminalized the possession of small 

amounts. See Commonwealth v. Cruz, 459 Mass. 459, 464 (2011). 

Such possession remains a civil offense and, as with other civil 

offenses, subjects the offender to a civil penalty and 

forfeiture of the marijuana. G. L. c. 94C, § 32L.

The novel issue presented here is whether reasonable 

suspicion of a civil marijuana violation occurring in a motor 

vehicle is sufficient to justify stopping the motor vehicle for 

purposes of confirming or dispelling that suspicion and, if 

necessary, for purposes of issuing a citation.1 The court, after 

employing a balancing test weighing the level of intrusion of a 

motor vehicle stop against the legitimate governmental interest 

at stake in the enforcement of the marijuana laws, concludes 

that reasonable suspicion is not sufficient to justify such a 

stop. For the reasons set forth below, I respectfully dissent.

 

1 It is important to note that in order to issue a citation 

for a civil traffic violation, an officer must possess at least 

probable cause. See Commonwealth v. Washington, 459 Mass. 32, 

39 & n.14 (2011). This, however, does not mean that an officer 

must have probable cause to stop a person suspected of a civil 

traffic violation. Rather, "an officer's reasonable suspicion 

of a possible, but unconfirmed, motor vehicle violation 

sufficiently justifies an investigatory traffic stop in order to 

verify or dispel that suspicion." Id. at 39 n.14.
2

It is undisputed that a motor vehicle stop conducted by a 

police officer constitutes a seizure for purposes of both the 

Fourth Amendment to the United States Constitution and art. 14 

of the Massachusetts Declaration of Rights. See Commonwealth v. 

Rodriguez, 430 Mass. 577, 579 (2000), citing Michigan Dep't of 

State Police v. Sitz, 496 U.S. 444, 450 (1990). It is well 

settled, however, that reasonable suspicion that a civil traffic 

offense has been committed is constitutionally sufficient to 

justify a motor vehicle stop. See Delaware v. Prouse, 440 U.S. 

648, 663 (1979) (officer must have "at least articulable and 

reasonable suspicion that a motorist is unlicensed or that an 

automobile is not registered, or that the vehicle or an occupant 

is otherwise subject to seizure for violation of law"); 

Commonwealth v. Washington, 459 Mass. 32, 39 & n.14 (2011) 

("officer's reasonable suspicion of a possible, but unconfirmed, 

motor vehicle violation sufficiently justifies an investigatory 

traffic stop in order to verify or dispel that suspicion"). See 

also Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999) 

(reasonable suspicion that window is illegally tinted sufficient 

to justify stopping motor vehicle to ascertain whether civil 

violation had occurred). In my view, there is no 

constitutionally based reason to distinguish stops for civil 

marijuana violations (occurring in motor vehicles) from stops 
3

for civil motor vehicle violations. Reasonable suspicion of a 

civil violation is enough.

The court, however, concludes that a detailed balancing 

inquiry is required when a motor vehicle stop is conducted in 

the absence of probable cause. The cases on which the court 

relies in support of this conclusion, however, concern police 

activities conducted without any individualized suspicion. For 

example, Prouse, 440 U.S. at 650-651, concerned the 

constitutionality of a motor vehicle stop that was conducted 

without any suspicion of a traffic or equipment violation, 

solely to check the driver's license and automobile 

registration. In determining the stop's reasonableness, the 

Supreme Court employed a balancing inquiry because the officers 

possessed no individualized suspicion of criminal wrongdoing. 

See id. at 654-659.

Likewise, the central issue addressed by the Supreme Court 

in Whren v. United States, 517 U.S. 806, 810 (1996), was not the 

quantum of proof necessary to effectuate a motor vehicle stop 

for a traffic violation, but whether the (allegedly racial) 

subjective motivation of the police officer conducting the motor 

vehicle stop was relevant to the stop's reasonableness. The 

Court declined to engage in a detailed balancing inquiry to 

determine the stop's reasonableness, concluding that such 

balancing is not necessary when a motor vehicle stop is 
4

conducted with individualized suspicion, id. at 817-819, in that 

case, probable cause to believe a civil motor vehicle infraction 

had occurred. Id. at 819. Here, there is also individualized 

suspicion, albeit at least reasonable suspicion.2

Finally, the court relies on Commonwealth v. Rodriguez, 430 

Mass. 577, 580-581 (2000), to support its balancing inquiry. 

The Rodriguez case, however, addressed the constitutionality of 

a police roadblock set up for the purpose of interdicting 

illegal drugs. Id. at 585-586. This court noted that except 

for a few narrowly defined public safety intrusions, a police 

officer must possess at least reasonable suspicion to justify a 

motor vehicle stop. Id. at 580, quoting United States v. 

Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). Again, a motor 

vehicle stop conducted as part of a suspicionless roadblock is 

 

2 In my view, there is also probable cause. Our 

jurisprudence in Commonwealth v. Garden, 451 Mass. 43, 48 

(2008), remains relevant and instructive. In that case, we 

concluded that the "odor of marijuana is sufficiently 

distinctive that it alone can supply probable cause to believe 

that marijuana is nearby." Id. Nothing has occurred that 

warrants a reconsideration of this common-sense conclusion. 

What has occurred is a change in the law making the possession 

of small amounts of marijuana a civil rather than criminal 

offense. That there is probable cause to believe some amount of 

marijuana is nearby remains logical and really beyond debate. 

The notion of someone having marijuana odor on their clothes 

(and none in their possession) remains possible -- but does not 

defeat probable cause. Indeed, the odor of marijuana streaming 

out of a moving vehicle seems totally inconsistent with the 

court's hypothetical scenario.
5

markedly different from a motor vehicle stop made on reasonable 

suspicion of a civil marijuana violation.

In my view, no detailed balancing of interests is necessary 

where this court has already recognized that reasonable 

suspicion of a civil motor vehicle infraction is sufficient to 

justify an investigatory stop for purposes of confirming or 

dispelling that suspicion. See Washington, 459 Mass. at 39 & 

n.14. "[T]he reasonableness standard usually requires, at a 

minimum, that the facts upon which an intrusion is based be 

capable of measurement against 'an objective standard,' whether 

this be probable cause or a less stringent test" (footnotes 

omitted). Prouse, 440 U.S. at 654. That standard is met here 

and standing alone should be sufficient to justify an 

investigatory stop for the purpose of confirming a civil 

violation of the marijuana laws and issuing a citation just as 

reasonable suspicion of a civil traffic violation justifies such 

a stop. See, e.g., People v. Brown, 62 Cal. App. 4th 493, 496-

497 (1998) (officer may stop individual suspected of violating 

California vehicle code in order to issue citation); State v. 

Brown, 694 A.2d 453, 453 (Me. 1997) ("In order to support a 

brief investigatory stop of a motor vehicle, . . . a police 

officer must have an articulable suspicion that criminal conduct 

or a civil violation has occurred, is occurring, or is about to 

occur . . ."); State v. Colstad, 260 Wis.2d 406, 414-415, cert. 
6

denied, 540 U.S. 877 (2003) (reasonable suspicion that driver 

violated traffic ordinance justified investigatory stop). The 

stop is investigative in nature, and its purpose is merely to 

confirm or dispel the officer's suspicion that a civil marijuana 

violation has occurred.3

The court goes on to opine that because a civil marijuana 

violation generally has no bearing on traffic and automobile 

safety, a motor vehicle stop to enforce that law is different 

from a motor vehicle stop for purposes of enforcing the civil 

traffic laws, and, consequently, in the court's balance inquiry, 

probable cause rather than reasonable suspicion is necessary to 

justify such a stop. 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 

 

3 It is important to note that the authority to stop only 

extends to confirming or dispelling the officer's suspicion. As 

this court has recognized, the smell of burnt or unburnt 

marijuana does not establish probable cause for purposes of 

arrests, see Commonwealth v. Cruz, 459 Mass. 459, 472-476 

(2011); searches, see Commonwealth v. Craan, 469 Mass. 24, 35 

(2014); and exit orders, see Cruz, supra at 472, 476. Thus, in 

order for an officer to go any further than issuing a civil 

marijuana citation, the officer must possess some additional 

reasonable suspicion or probable cause of criminal activity. 

See Cruz, supra at 472. See also Commonwealth v. Daniel, 464 

Mass. 746, 752 (2013) ("Absent articulable facts supporting a 

belief that either occupant of the vehicle possessed a criminal 

amount of marijuana, the search was not justified by the need to 

search for contraband").
7

traffic and automobile safety.4 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. See G. L. c. 90, § 13B.5

Finally, the court concludes not only that probable cause 

is necessary, but also that probable cause can be established 

only if the police officer actually sees the illegal use of 

marijuana. To my knowledge, we have not in the past concluded 

that probable cause can only be established in this manner. 

See, e.g., Washington, 459 Mass. at 40 (although officer did not 

actually see defendant riding in motor vehicle without seat 

belt, officer had probable cause sufficient to issue citation 

 

4 This is not to say that the smell of marijuana alone is 

sufficient to establish either reasonable suspicion or probable 

cause that an individual is driving under the influence of 

marijuana in violation of G. L. c. § 24 (1) (a) (1). See 

Daniel, 464 Mass. at 756 (smell of burnt marijuana without any 

indication that driver's capacity to operate motor vehicle was 

impaired not sufficient basis for belief driver was operating 

while under the influence). Nevertheless, Daniel is 

distinguishable: the officer smelled "freshly burnt" marijuana 

(which could have been attributable to previous use at a party) 

when he approached the stopped vehicle. Id. at 749. Here, the 

officer detected the odor of burnt marijuana emanating from a 

moving vehicle.

5 It is also not clear under the court's analysis whether 

reasonable suspicion of a civil marijuana violation would be 

sufficient for stopping a pedestrian for purposes of confirming 

or dispelling that suspicion and issuing a citation if 

confirmed.
8

where defendant was not wearing seat belt very shortly after 

traffic stop).

For these reasons, I respectfully dissent.