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SJC-11436

COMMONWEALTH vs. ANTHONY CRAAN.

Suffolk. March 3, 2014. - July 9, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,

& Lenk, JJ.

Controlled Substances. Narcotic Drugs. Constitutional Law, 

Narcotic drugs, Search and seizure, Investigatory stop, 

Probable cause. Search and Seizure, Motor vehicle, 

Threshold police inquiry, Probable cause, Search incident 

to lawful arrest. Threshold Police Inquiry. Probable 

Cause. Practice, Criminal, Motion to suppress.

Complaint received and sworn to in the Dorchester Division 

of the Boston Municipal Court Department on August 6, 2010.

A pretrial motion to suppress evidence was heard by 

Rosalind Henson Miller, J., and a motion for reconsideration was 

also heard by her.

An application for leave to prosecute an interlocutory 

appeal was allowed by Botsford, J., in the Supreme Judicial 

Court for the county of Suffolk, and the appeal was reported by 

her to the Appeals Court. The Supreme Judicial Court on its own 

initiative transferred the case from the Appeals Court.

Zachary Hillman, Assistant District Attorney, for the 

Commonwealth.

Brian J. Anderson for the defendant.

The following submitted briefs for amici curiae:
2

William W. Adams for Ardil Innis.

Donald Bronstein, Committee for Public Counsel Services,

Joshua Levy, Matthew Mazzotta, & Matthew R. Segal, for American 

Civil Liberties Union of Massachusetts & another.

Michael D. Cutler & Steven S. Epstein for National 

Organization for the Reform of Marijuana Law.

LENK, J. In this case, we are asked again to determine the 

effect of the 2008 ballot initiative decriminalizing possession 

of one ounce or less of marijuana (2008 initiative) on police 

authority to conduct warrantless searches of vehicles, this time 

in the context of a search effected on the basis of the odor of 

unburnt marijuana.1

The defendant's vehicle was searched at a sobriety 

checkpoint on June 11, 2010, after a State police trooper 

smelled the odor of unburnt marijuana emanating from it. The 

search revealed both loose marijuana and plastic baggies 

containing marijuana residue, in addition to three "Ecstasy" 

pills (methylenedioxy methamphetamine) and several rounds of 

ammunition. The search was based on the odor of marijuana 

alone; the defendant exhibited no signs of impairment and, 

although issued a summons for criminal offenses, was permitted 

to drive away without being asked to submit to any field 

sobriety tests. Approximately two months later, however, a 

1 We acknowledge the amicus briefs submitted on behalf of 

the defendant by the American Civil Liberties Union of 

Massachusetts and the Committee for Public Counsel Services; the 

National Organization for the Reform of Marijuana Law; and Ardil 

Innis.

 
3

criminal complaint issued charging the defendant with various 

drug- and firearms-related offenses.

A judge of the Boston Municipal Court initially denied the 

defendant's motion to suppress the fruits of the search, namely, 

the marijuana, Ecstasy pills, and ammunition. Several months 

later, in light of Commonwealth v. Cruz, 459 Mass. 459 (2011), 

the judge reconsidered her ruling and allowed the motion to 

suppress. A single justice of this court subsequently allowed 

the Commonwealth's application for leave to pursue an 

interlocutory appeal in the Appeals Court, and we transferred 

the case to this court on our own motion.

The Commonwealth maintains that the search was justified on 

three different grounds. First, it was lawful because the 

search was conducted incident to the defendant's arrest. 

Second, the search was permissible because it was to prevent the 

defendant from smoking marijuana while driving. And, third, the 

search was lawful because it fell under the automobile exception 

to the warrant requirement, insofar as there was probable cause 

to believe that the defendant's vehicle contained evidence of a 

Federal crime. Considering this case in conjunction with our 

decision in Commonwealth v. Overmyer, ante , (2014), we 

reject these contentions and affirm the judge's order allowing 

the motion to suppress.
4

1. Background. We summarize the facts found by the judge 

after an evidentiary hearing, supplemented by uncontested facts 

in the record. See Commonwealth v. Isaiah I., 448 Mass. 334, 

337 (2007), S.C., 450 Mass. 818 (2008). The only witness at 

that hearing was the State police trooper who conducted the 

search at the sobriety checkpoint. "In reviewing a ruling on a 

motion to suppress, we accept the judge's subsidiary findings of 

fact absent clear error 'but conduct an independent review of 

[her] ultimate findings and conclusions of law.'" Commonwealth

v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. 

Jimenez, 438 Mass. 213, 218 (2002).

In the early morning hours of June 11, 2010, State police 

were conducting a sobriety checkpoint2 on Gallivan Boulevard in 

the Dorchester section of Boston. The testifying trooper was 

responsible for stopping every passing vehicle to determine 

2 In order to pass constitutional muster, "the selection of 

motor vehicles to be stopped [at a sobriety checkpoint] must not 

be arbitrary, safety must be assured, motorists' inconvenience 

must be minimized and assurance must be given that the procedure 

is being conducted pursuant to a plan devised by law enforcement 

supervisory personnel." Commonwealth v. McGeoghegan, 389 Mass. 

137, 143 (1983). See Delaware v. Prouse, 440 U.S. 648, 663 

(1979). No evidence was adduced at the hearing concerning the 

existence of a protocol governing the sobriety checkpoint in 

question, or whether any such protocol addressed the use of 

marijuana as well as alcohol. In any event, however, the 

defendant did not challenge the legality of the sobriety 

checkpoint below or on appeal. We assume for the sake of 

discussion that the checkpoint met constitutional requirements, 

and deem any arguments to the contrary waived. See, e.g., Carey

v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issues not 

raised or argued below waived on appeal).

 
5

whether the driver was operating it while under the influence of 

alcohol. One of the vehicles stopped was driven by the 

defendant. After the trooper identified himself, the defendant 

rolled down the driver's side window to speak with him, at which 

point the trooper smelled a strong odor of unburnt marijuana 

emanating from the vehicle.

The trooper asked the defendant to pull into the screening 

area, and, once there, asked the defendant whether there was any 

marijuana in the vehicle. The defendant responded that he and 

the vehicle's passenger "had just smoked some weed." However, 

after the trooper explained that he smelled unburnt, rather than 

burnt, marijuana, the defendant opened the glove compartment to 

reveal a "small plastic bag" containing a substance that the 

trooper believed to be marijuana.3

 At that point, the trooper 

ordered both the defendant and the passenger out of the vehicle

and proceeded to pat frisk them.4

The trooper then performed a search of the vehicle, which 

uncovered, in the door on the driver's side, a device commonly 

used for grinding marijuana; three blue pills, later identified 

as Ecstasy; "some marijuana" in the center console; and, in the 

3 The trooper did not testify whether he believed that the 

bag contained more or less than one ounce of marijuana, and no 

other evidence as to the weight of the marijuana was before the 

judge.

4 No evidence was seized as a result of this pat frisk.

 
6

passenger compartment, plastic baggies which appeared to contain 

burnt marijuana residue. The trooper also searched the trunk, 

where he found rounds of .38 caliber ammunition.

At the conclusion of the search, the trooper did not arrest 

the vehicle's occupants, but rather issued summonses for 

criminal offenses and released them. A complaint subsequently 

issued against the defendant, charging him with illegal 

possession of ammunition, in violation of G. L. c. 269, 

§ 10 (h) (1); possession of a class D substance with the intent 

to distribute, in violation of G. L. c. 94C, § 32C (a); and 

possession of a class B substance, in violation of G. L. c. 94C, 

§ 34.

The judge determined that, based on his experience, the 

trooper was qualified to recognize the odor of marijuana.5 See 

Commonwealth v. Garden, 451 Mass. 43, 48-49 (2008). The judge

went on to rule that, because the passage of the 2008 initiative 

did "not change the probable cause analysis," the scent of 

marijuana still provided "probable cause to believe that 

marijuana is nearby." Although the judge found that there was 

no basis to believe that more than one ounce of marijuana was 

5 The trooper testified that, over his five years of service 

for the State police, he encountered marijuana "on a very 

regular basis," and had made approximately twenty or twenty-five 

arrests related to marijuana. He also testified that, since 

2008, he had issued between twenty and thirty civil citations 

for possession of marijuana.

 
7

present in the vehicle, she nevertheless concluded that the 

warrantless search was justified under the automobile exception 

to the warrant requirement. The odor of unburnt marijuana 

provided the basis for the search; although the odor did not 

suggest the presence of a particular quantity of marijuana, it 

did indicate the presence of some marijuana, which, the judge 

stated, was still unlawful contraband after the 2008 initiative. 

Therefore, the judge initially denied the defendant's motion to 

suppress.

The judge's initial ruling, however, predated our decision 

in Commonwealth v. Cruz, 459 Mass. 459, 472, 475-476 (2011), in 

which we held that, in view of the decriminalization of 

marijuana occasioned by the 2008 initiative, "the odor of burnt 

marijuana alone cannot reasonably provide suspicion of criminal 

activity," nor can it give rise to probable cause to search a 

vehicle under the automobile exception to the warrant 

requirement. After the release of this court's decision in that 

case, the defendant moved for reconsideration of the judge's

ruling on his motion to suppress. The judge allowed the motion 

for reconsideration and thereafter reversed her initial ruling.

2. Discussion. "Warrantless searches are presumptively 

unreasonable, under both the Fourth Amendment to the United 

States Constitution and art. 14 of the Massachusetts Declaration 

of Rights." Commonwealth v. Gouse, 461 Mass. 787, 792 (2012). 
8

"When a search is conducted without a warrant, the burden is on 

the Commonwealth to show that the search 'falls within a narrow 

class of permissible exceptions' to the warrant requirement." 

Commonwealth v. Perkins, 465 Mass. 600, 603 (2013), quoting 

Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974).

Since the enactment of the 2008 initiative decriminalizing 

the possession of one ounce or less of marijuana, we have held 

that the odor of burnt marijuana alone cannot support probable 

cause to search a vehicle without a warrant. See Commonwealth

v. Cruz, supra at 475-476. As we hold in a companion to this 

case, neither can such probable cause rest solely on the odor of 

unburnt marijuana. See Commonwealth v. Overmyer, supra

at . The Commonwealth, however, offers several different 

justifications for the presumptively unreasonable search of the 

defendant's vehicle, separate and apart from the odor of 

marijuana alone. We address each in turn.6

6 We focus primarily on the lawfulness of the search of the 

defendant's vehicle, rather than the exit order, because it was 

the search that yielded the evidence sought to be suppressed. 

However, because, as the judge found, the basis for the search 

was the odor of unburnt marijuana, and there was no other reason 

to believe that a criminal amount of marijuana was present in 

the vehicle, there was no reasonable suspicion of criminal 

activity warranting an exit order. See Commonwealth v. 

Overmyer, ante , (2014); Commonwealth v. Cruz, 459 Mass. 

459, 472 (2011). The other permissible grounds for an exit 

order similarly were absent: there was no indication that the 

trooper's safety was threatened, nor, as shall be discussed 

infra, was the exit order justified "to facilitate an 

independently permissible warrantless search of the car under 

 
9

a. Search incident to arrest. The first rationale 

proffered by the Commonwealth is that the trooper had probable 

cause to arrest the defendant for operating his vehicle while 

under the influence of marijuana, and therefore the search was 

permissible as a search incident to arrest. This argument, 

however, overlooks a crucial fact: neither the defendant nor 

his passenger was arrested.7

A search incident to arrest, as the name suggests, may be 

effected without a warrant when an arrest has taken place, in 

order to "remove any weapons that the [arrestee] might seek to 

use in order to resist arrest or effect his escape" or "to 

search for and seize any evidence on the arrestee's person in 

order to prevent its concealment or destruction." Chimel v. 

California, 395 U.S. 752, 762-763 (1969). See Commonwealth v. 

Santiago, 410 Mass. 737, 743 (1991). Although a search may 

precede a formal arrest, see id. at 742, quoting Commonwealth v. 

Brillante, 399 Mass. 152, 154 n.5 (1987), the search and the 

arrest "must be roughly contemporaneous." Commonwealth v. 

Washington, 449 Mass. 476, 481 (2007).

the automobile exception to the warrant requirement." See 

Commonwealth v. Cruz, supra at 467.

7 Nor, for that matter, was the defendant subsequently cited 

for or charged with operating his vehicle while under the 

influence.

 
10

Where no arrest is underway, the rationales underlying the 

exception do not apply with equal force. Indeed, "[t]o permit a 

search incident to arrest where the suspect is not arrested 

until much later, or is never arrested, would sever this 

exception completely from its justifications" and effectively 

"create a wholly new exception for a 'search incident to 

probable cause to arrest.'" Commonwealth v. Washington, supra

at 482, citing Commonwealth v. Alvarado, 420 Mass. 542, 554 

(1995). See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690 

(1984), and cases cited ("Detentions for frisking, questioning, 

routine traffic stops, and the like, where the detainee is 

released after the police business is transacted, are treated as 

'"seizures" of the person,' subject to Fourth Amendment scrutiny

. . . , but are differentiated from 'formal,' or 'custodial,'

arrests, the custodial aspect of which serves as the theoretical 

justification for the incident search" [citations omitted]). 

Given that it lacked the critical element of an arrest, the 

search of the defendant's vehicle cannot be sustained as a 

search incident to arrest.

In any event, the testimony at the motion hearing would not 

have supported a finding of probable cause to arrest the 

defendant for operating a motor vehicle while under the 
11

influence of marijuana.8 There was no evidence that the 

defendant bore any of the classic indicia of impairment, nor did 

the trooper administer a field sobriety test in order to gauge

the defendant's level of impairment, notwithstanding the fact 

that the vehicle had been stopped at a sobriety checkpoint. Cf.

Commonwealth v. Daniel, 464 Mass. 746, 756-757 (2013) ("[T]he 

Commonwealth elicited no testimony that [the defendant] showed 

any signs of impairment during [her] encounter [with police]. 

The officer did not testify that [the defendant's] eyes were red 

or glassy, that her speech or movements were unusual, or that 

her responses to questioning were inappropriate or 

uncooperative. He did not perform any tests to assess [the 

defendant's] physical and mental acuity"[footnote omitted]).

There was likewise no evidence that the defendant had been 

driving erratically; indeed, the defendant's vehicle was stopped 

pursuant to a systematic effort to stop every passing 

automobile, and no other individualized reason for the stop was 

given. Contrast Commonwealth v. Bartlett, 465 Mass. 112, 117-

118 (2013) (police officer was justified in stopping defendant's 

vehicle to determine whether he was operating it while under 

influence of drugs or alcohol, where vehicle was observed 

8 The 2008 initiative explicitly did not alter statutes 

relating to operating a motor vehicle while under the influence 

of marijuana. See G. L. c. 94C, § 32L; Commonwealth v. Daniel, 

464 Mass. 746, 754 (2013).

 
12

swerving erratically). Although the defendant admitted to 

having smoked marijuana earlier, the exact time at which he had 

done so was not clear, and, prior to searching his vehicle, the 

trooper observed no drug paraphernalia used to consume 

marijuana. Far short of arresting the defendant for operating a 

motor vehicle while under the influence of marijuana, the 

trooper in fact released the defendant, allowing him to continue 

driving.9

Therefore, because the defendant was not arrested, and 

because the trooper lacked probable cause to arrest him for 

operating a motor vehicle while under the influence of 

marijuana, the search of the defendant's vehicle was not 

justified as a search incident to arrest.

b. Search in order to prevent defendant from smoking 

marijuana while driving. The Commonwealth contends that the 

trooper was "duty-bound" to search the defendant's vehicle to 

ensure that he would not "smoke additional marijuana while 

9 The Commonwealth conceded at oral argument that evidence 

that the defendant was operating while under the influence of 

marijuana was "scant." The Commonwealth instead pursued the 

novel claim that the State trooper was justified in searching 

the vehicle where the defendant handed over a small amount of 

marijuana in what the Commonwealth argued was an attempt to 

"divert" the trooper's attention from the presence of other 

criminal contraband in the vehicle. That the defendant intended 

to distract the trooper by using the small amount of marijuana 

in the glove compartment as a decoy is not supported by the 

findings of the judge, and we decline to address such a 

"diversion" theory on appeal.

 
13

driving." In this argument, the Commonwealth does not attempt 

to fit the search within the parameters of the automobile 

exception to the warrant requirement, nor could it; the 

Commonwealth argues only that the odor of unburnt marijuana and 

the presence of a small amount of marijuana in the glove 

compartment suggested that "there could have been more." The 

mere possibility that more marijuana was present in the vehicle 

does not amount to probable cause to believe that the defendant 

had committed, or was committing, a crime, namely possession of 

more than one ounce of marijuana. See Commonwealth v. Johnson, 

461 Mass. 44, 49 & n.6 (2011), citing Commonwealth v. 

Antobenedetto, 366 Mass. 51, 53 (1974) (automobile exception to 

warrant requirement permits search of vehicle where probable 

cause supports search). See also Commonwealth v. Daniel, supra

at 751-752 (defendant's surrender of two small bags of marijuana 

did not give rise to probable cause to search vehicle).

Instead, the Commonwealth maintains only that effectuating 

a warrantless search of the vehicle was the appropriate 

resolution of the choice facing the trooper, between searching 

the defendant's vehicle or releasing him, with the possibility 

that he could smoke additional marijuana while driving. But, 

notwithstanding this novel argument, there is no "Hobson's 

choice" exception to the warrant requirement; that operating 

while under the influence may be an "epidemic," as the 
14

Commonwealth argues, does not legitimate otherwise 

unconstitutional searches.

Moreover, there is no evidence that the defendant would 

have smoked marijuana while driving had the trooper refrained 

from searching his vehicle. The trooper was adamant that it was 

unburnt, rather than burnt, marijuana that he smelled, 

suggesting that, prior to the stop, the defendant had not been 

smoking while driving. Similarly, as discussed supra, there is 

no evidence that the defendant was impaired; the trooper 

performed no tests to assess his physical and mental acuity and 

permitted him to drive away.

We are not persuaded by the Commonwealth's suggestion that 

the search was permissible owing to the trooper's duty to ensure 

the safety of the roadways and to prevent the mere potential 

that the defendant could smoke marijuana while driving. Were we 

to conclude otherwise, it would follow necessarily that police 

could search any vehicle containing sealed bottles of alcohol, 

based on a potential risk that the driver could open a bottle 

and begin drinking while driving.

c. Search pursuant to automobile exception, based on 

probable cause to believe that defendant had violated Federal 

law. As a third possible justification for the search, the 

Commonwealth suggests the automobile exception to the warrant 

requirement, which provides that police may search an automobile 
15

where they have probable cause to believe that evidence of a 

crime will be found therein. See Commonwealth v. Johnson, supra

at 49 & n.6, citing Commonwealth v. Antobenedetto, supra at 53. 

According to this theory, the search conformed to the 

requirements of the automobile exception because the trooper had 

probable cause to believe that evidence of a Federal crime, 

namely, possession of marijuana, would be found inside the 

defendant's vehicle, despite the absence of any Federal 

involvement in the stop at issue. This argument effectively 

asks us to circumvent the "clear intent" of the voters who 

enacted the 2008 initiative, which we identified in Commonwealth

v. Cruz, 459 Mass. 459, 464-465, 472 (2011), and to overrule the 

holding of that case. We decline to do so.

We observe at the outset that State and local law 

enforcement authorities are the creatures of statute, which may 

be modified by the Legislature. See Commonwealth v. Dugan, 12 

Met. 233, 234 (1847) ("The office of a police officer is not one 

known to the common law; it is created by statute, and must be 

regulated and administered according to the statute"). It 

follows that duly enacted laws may circumscribe police authority 

to act. See, e.g., Commonwealth v. Landry, 438 Mass. 206, 211 

(2002) (in light of statute providing that it "shall not be a 

crime" to participate in hypodermic needle exchange program, 

police officer may not lawfully arrest individual bearing 
16

program membership card for violating provision regarding 

unlawful possession of needles). Thus, the 2008 initiative, 

constituting as it does a valid exercise of legislative 

authority, limited the scope of permissible police conduct with 

regard to marijuana offenses by reclassifying possession of one 

ounce or less as a civil violation. See Commonwealth v. Cruz, 

supra at 471-472 ("the entire statutory scheme [enacted by the 

2008 initiative] also implicates police conduct in the field").

Similarly, although the "general rule is that local police 

are not precluded from enforcing federal statutes," Gonzales v. 

Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other 

grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 

1999), their authority to do so derives from State law. See 

Miller v. United States, 357 U.S. 301, 305 (1958) (where State 

police officers make arrest for violation of Federal law, 

"lawfulness of the arrest without warrant is to be determined by 

reference to state law"); Johnson v. United States, 333 U.S. 10, 

15 n.5 (1948) (same); Goulis v. State Judge of the Third Dist. 

Court of E. Middlesex, 246 Mass. 1, 5-6 (1923), quoting 

Dallemagne v. Moisan, 197 U.S. 169, 174 (1905) ("It has long 

been held that power may be conferred upon a state officer, as 

such, to execute a duty imposed under an act of Congress, and 

the officer may execute the same, unless its execution is 

prohibited by the constitution or legislation of the state"). 
17

While State law may authorize local and State police to enforce 

Federal criminal statutes,10 it need not do so.

Where the 2008 initiative decriminalized possession of one 

ounce or less of marijuana under State law, and accordingly 

removed police authority to arrest individuals for civil 

violations, see G. L. c. 94C, § 32N, it also must be read as 

curtailing police authority to enforce the Federal prohibition 

of possession of small amounts of marijuana. Any contrary 

interpretation would clearly contravene the people's intent, to 

which we must give effect. See Commonwealth v. Cruz, supra at 

470-471. Construing the statutory scheme to continue to permit 

State and local police to enforce the Federal prohibition would 

be entirely inconsistent with the objective that we discerned in 

Commonwealth v. Cruz, supra at 477, to "free up the police for 

more serious criminal pursuits." We will not adopt an 

interpretation that is so plainly at odds with the purpose of 

the initiative. See Bridgewater State Univ. Found. v. Assessors 

of Bridgewater, 463 Mass. 154, 160 (2012) (court will not 

embrace "absurd or unreasonable" interpretation of statute).

The Commonwealth appears to acknowledge that, after the 

2008 initiative, State and local police lack authority to make 

arrests under Federal law for possessing small amounts of 

10 Of course, State law may authorize local enforcement of 

Federal statutes only if not preempted by Federal law. See 

Arizona v. United States, 132 S. Ct. 2492, 2505-2507 (2012).

 
18

marijuana, but claims nonetheless that police may simply 

investigate possible violations of Federal statutes and turn 

over any evidence obtained to Federal authorities. Even 

assuming that the power to investigate crimes and make arrests 

may be decoupled in such a way, the Federal government's current 

stance on prosecuting marijuana-related offenses significantly 

undercuts the strength of this argument. In 2009, and again in 

2013, the United States Department of Justice issued a 

memorandum to all United States Attorneys outlining its 

enforcement priorities with respect to marijuana-related 

offenses. See J.M. Cole, Deputy Attorney General of the United 

States, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013)

(Cole); D.W. Ogden, Deputy Attorney General of the United 

States, Investigations and Prosecutions in States Authorizing 

the Medical Use of Marijuana (Oct. 19, 2009). Such priorities 

include, inter alia, "[p]reventing revenue from the sale of 

marijuana from going to criminal enterprises, gangs, and 

cartels" and "[p]reventing violence and the use of firearms in 

the cultivation and distribution of marijuana." Cole, supra at 

1-2.

The Department of Justice has recognized that, "[o]utside 

of these enforcement priorities, the federal government has 

traditionally relied on states and local enforcement agencies to 

address marijuana activity through enforcement of their own 
19

narcotics laws," and will continue to do so where Federal 

priorities are not implicated. Id. at 2-3. Therefore, given 

the clear preference expressed in the 2008 initiative that 

police focus their attention elsewhere, Federal law does not 

supply an alternative basis for investigating possession of one 

ounce or less of marijuana, especially where the Federal 

government has signaled a lessened interest in prosecuting such 

conduct.

To be sure, examples of cooperation between Federal and 

State law enforcement authorities are legion in our case law. 

See, e.g., Commonwealth v. Gonzalez, 426 Mass. 313, 314 (1997); 

Commonwealth v. Cast, 407 Mass. 891, 893 (1990). See also 

United States v. Franklin, 630 F.3d 53, 54 (1st Cir.), cert. 

denied, 131 S. Ct. 2466 (2011). By concluding as we do, we do 

not intend to call into question the legitimacy of such joint 

efforts. We hold only that where, as here, State law expressly 

has decriminalized certain conduct, there is no extant joint 

investigation, and the Federal government has indicated that it 

will not prosecute certain conduct, the fact that such conduct 

is technically subject to a Federal prohibition does not provide 

an independent justification for a warrantless search.

Therefore, "[a]bsent articulable facts supporting a belief 

that either occupant of the vehicle possessed a criminal amount 

of marijuana [under State law], the search was not justified by 
20

the need to search for contraband [under Federal law]." 

Commonwealth v. Daniel, 464 Mass. 746, 752 (2013).

Order allowing motion

 to suppress affirmed.