Briefs and Other Related Documents

Judges and Attorneys

Supreme Judicial Court of Massachusetts,Suffolk.

COMMONWEALTHv.

Clint DANIEL (and a companion case FN1

).

FN1. Commonwealth vs. AlysonTayetto.

SJC–11214.Argued Dec. 6, 2012.

Decided April 5, 2013.

Background: Defendants charged withmultiple firearm offenses filed motion tosuppress evidence. The Boston MunicipalCourt Department, Suffolk County,Tracy–Lee Lyons, J., granted motion.Commonwealth's application for leave toprosecute an interlocutory appeal was al-lowed by Ralph D. Gants, J., in the Su-preme Judicial Court, and the appeal wasreported by him to the Appeals Court. TheAppeals Court, 81 Mass.App.Ct. 306, 962N.E.2d 213, reversed.

Holdings: After granting leave to obtainfurther appellate review, the Supreme Judi-cial Court, Duffly, J., held that:(1) officer lacked probable cause to con-duct warrantless search of vehicle;(2) concern for officer safety did not sup-port search of vehicle for weapons; and(3) search was not justified by concern thatdriver was driving under the influence ofmarijuana.

Trial court affirmed.

West Headnotes

[1] Criminal Law 110 1134.49(4)

110 Criminal Law110XXIV Review

110XXIV(L) Scope of Review inGeneral

110XXIV(L)4 Scope of Inquiry110k1134.49 Evidence

110k1134.49(4) k. Illegallyobtained evidence. Most Cited Cases

Criminal Law 110 1158.12

110 Criminal Law110XXIV Review

110XXIV(O) Questions of Fact andFindings

110k1158.8 Evidence110k1158.12 k. Evidence

wrongfully obtained. Most Cited CasesAppellate court accepts suppression

court's subsidiary findings of fact absentclear error, but conducts an independent re-view of court's ultimate findings and con-clusions of law.

[2] Searches and Seizures 349 192.1

349 Searches and Seizures349VI Judicial Review or Determina-

tion349k192 Presumptions and Burden

of Proof349k192.1 k. In general. Most

Cited CasesWhen police conduct a search of an

automobile without first obtaining a searchwarrant, the commonwealth bears the bur-den of proving the existence of both prob-able cause to believe that the automobilecontained contraband and of exigent cir-cumstances to justify proceeding without awarrant. U.S.C.A. Const.Amend. 4.

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[3] Searches and Seizures 349 62

349 Searches and Seizures349I In General

349k60 Motor Vehicles349k62 k. Probable or reasonable

cause. Most Cited CasesUnder the automobile exception to the

Fourth Amendment warrant requirement,the commonwealth may satisfy its burdenof showing that a warrantless search of avehicle was valid by proving that officershad probable cause to believe that therewas contraband in the vehicle. U.S.C.A.Const.Amend. 4.

[4] Searches and Seizures 349 40.1

349 Searches and Seizures349I In General

349k40 Probable Cause349k40.1 k. In general. Most

Cited CasesThe determination of probable cause

supporting a warrantless search is object-ive, and focuses on whether the factswould warrant a reasonable person in be-lieving the action taken to be appropriate.U.S.C.A. Const.Amend. 4.

[5] Automobiles 48A 349.5(7)

48A Automobiles48AVII Offenses

48AVII(B) Prosecution48Ak349.5 Search or Seizure

Consequent to Arrest, Stop or Inquiry48Ak349.5(5) Object, Product,

Scope, and Conduct of Search or Inspec-tion

48Ak349.5(7) k. Drugs andnarcotics. Most Cited Cases

Police officer did not have probablecause to conduct warrantless search ofvehicle following traffic stop in which hesmelled odor of freshly burned marijuana

and driver of vehicle gave officer twosmall bags of marijuana, since possessionof less than an ounce of marijuana hadbeen decriminalized; absent articulablefacts supporting a belief that either occu-pant of the vehicle possessed a criminalamount of marijuana, search was not justi-fied by the need to search for contraband.U.S.C.A. Const.Amend. 4; M.G.L.A. c.94C, § 32L.

[6] Automobiles 48A 349.5(10)

48A Automobiles48AVII Offenses

48AVII(B) Prosecution48Ak349.5 Search or Seizure

Consequent to Arrest, Stop or Inquiry48Ak349.5(5) Object, Product,

Scope, and Conduct of Search or Inspec-tion

48Ak349.5(10) k.Weapons; protective searches; pat-down.Most Cited Cases

Concern for officer safety did not sup-port police officer's warrantless weaponssearch of vehicle following traffic stop,based on late hour of stop, facts that occu-pants of vehicle outnumbered officer, pas-senger's hunched shoulders and furtivemovements as officer approached, passen-ger's emptying his pockets when not spe-cifically requested to do so, passenger'spossession of a folding knife, and presenceof a noncriminal amount of marijuana invehicle; officer allowed occupants to movevehicle without first removing the knife,suggesting that occupants' movements andactions did not create a heightened aware-ness of danger, officer described occupantsas compliant, and officer had no informa-tion to suggest that occupants were armedand dangerous. U.S.C.A. Const.Amend. 4;M.G.L.A. c. 94C, § 32L.

[7] Searches and Seizures 349 68

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349 Searches and Seizures349I In General

349k67 Weapons; ProtectiveSearches

349k68 k. Vehicle searches. MostCited Cases

An officer who does not have probablecause to search an automobile for evidenceof a crime or contraband may nonethelessconduct a limited search for weapons if areasonably prudent man in his positionwould be warranted in the belief that thesafety of the police of that of other personswas in danger. U.S.C.A. Const.Amend. 4.

[8] Searches and Seizures 349 68

349 Searches and Seizures349I In General

349k67 Weapons; ProtectiveSearches

349k68 k. Vehicle searches. MostCited Cases

A warrantless search of a vehicle forweapons based on concern for officersafety must be confined to the area fromwhich the suspect might gain possession ofa weapon' either because he is still withinthe vehicle or because he is likely to returnto the vehicle at the conclusion of the of-ficer's inquiry. U.S.C.A. Const.Amend. 4.

[9] Searches and Seizures 349 68

349 Searches and Seizures349I In General

349k67 Weapons; ProtectiveSearches

349k68 k. Vehicle searches. MostCited Cases

For purposes of determining validity ofa warrantless search of a vehicle forweapons, while it does not take much for apolice officer to establish a reasonablebasis to justify an exit order or searchbased on safety concerns, the intrusiveness

of the officer's conduct must be proportion-al to the degree of suspicion that promptedit. U.S.C.A. Const.Amend. 4.

[10] Automobiles 48A 349.5(7)

48A Automobiles48AVII Offenses

48AVII(B) Prosecution48Ak349.5 Search or Seizure

Consequent to Arrest, Stop or Inquiry48Ak349.5(5) Object, Product,

Scope, and Conduct of Search or Inspec-tion

48Ak349.5(7) k. Drugs andnarcotics. Most Cited Cases

Warrantless search of vehicle followingtraffic stop was not justified by concernthat driver was operating under the influ-ence of marijuana, where officer smelledthe odor of burnt marijuana and recoveredtwo small bags of marijuana from driver,who explained that the smell was the resultof others using marijuana at a party; al-though officer was not required to creditdriver's explanation, officer did not observethat driver's eyes were red or glassy, thather speech or movements were unusual, orthat her responses to questioning were in-appropriate or uncooperative, officer didnot perform any tests to assess her physicaland mental acuity, and officer instructedher to move her vehicle herself to allowtraffic to pass. U.S.C.A. Const.Amend. 4;M.G.L.A. c. 90, § 24(1)(a); c. 94C, § 32L.

[11] Automobiles 48A 332

48A Automobiles48AVII Offenses

48AVII(A) In General48Ak332 k. Driving while intox-

icated. Most Cited CasesA driver may be found to have been un-

der the influence when her consumption ofalcohol or other substances diminished her

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ability to operate a motor vehicle safely;although the commonwealth need notprove that the defendant actually drove inan unsafe or erratic manner it must prove adiminished capacity to operate safely.M.G.L.A. c. 90, § 24(1)(a)(1).

[12] Automobiles 48A 332

48A Automobiles48AVII Offenses

48AVII(A) In General48Ak332 k. Driving while intox-

icated. Most Cited CasesA court reads the statute prohibiting op-

eration of a motor vehicle under the influ-ence in light of the legislative purpose toprotect the public from drivers whose judg-ment, alertness, and ability to respondpromptly and effectively to unexpectedemergencies are diminished because of theconsumption of alcohol or drugs. M.G.L.A.c. 90, § 24(1)(a).

[13] Automobiles 48A 349(6)

48A Automobiles48AVII Offenses

48AVII(B) Prosecution48Ak349 Arrest, Stop, or Inquiry;

Bail or Deposit48Ak349(2) Grounds

48Ak349(6) k. Intoxica-tion. Most Cited Cases

Erratic driving that violates the civilmotor vehicle code may give rise to a reas-onable suspicion that a driver is impaired,permitting an investigatory stop of avehicle. U.S.C.A. Const.Amend. 4.

**845 Timothy J. Brown, Committee forPublic Counsel Services, for the defendant.

Zachary M. Hillman, Assistant District At-torney (Benjamin R. Megrian, AssistantDistrict Attorney, with him) for the Com-

monwealth.

Present: IRELAND, C.J., SPINA, CORDY,BOTSFORD, GANTS, DUFFLY, &LENK, JJ.

DUFFLY, J.*747 The defendants, Clint Daniel and

Alyson Tayetto, were stopped by a Bostonpolice officer for a motor vehicle infractionin the early morning hours of December13, 2009. The interior of the vehiclesmelled of burnt marijuana, and in re-sponse to a question from the officer, Tay-etto, the driver, produced two small bagscontaining the substance. The officersearched the vehicle and found a handgunand ammunition in the glove box. Danieland Tayetto were subsequently chargedwith several firearms offenses.

**846 The defendants moved to sup-press the evidence recovered from thevehicle. A Boston Municipal Court judgeallowed the motions, and a single justice ofthis court allowed the Commonwealth'smotion for leave to file an interlocutory ap-peal in the Appeals Court, pursuant toMass. R.Crim. P. 15(a)(2), as appearing in422 Mass. 1501 (1996). The Appeals Courtreversed the Boston Municipal Courtjudge's order that the evidence be sup-pressed, Commonwealth v. Daniel, 81Mass.App.Ct. 306, 313–316, 962 N.E.2d213 (2012), and we granted Daniel's ap-plication for further appellate review.

The Commonwealth argues that themotions to suppress should not have beenallowed. The Commonwealth contends thatthe officer had probable cause to search thevehicle for contraband, and thus permiss-ibly ordered both occupants from thevehicle, and also that the circumstances

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would have caused a reasonable officer tofear for his safety, thus permitting him tosearch the vehicle for weapons. In addition,the Commonwealth makes two claims notraised before the motion judge or in itsbrief before the Appeals Court: that the of-ficer had probable cause to believe thatTayetto was operating a vehicle while un-der the influence of marijuana, in violationof G.L. c. 90, § 24 (a ), and therefore it waspermissible to search the vehicle for evid-ence of that crime; and that the search waspermissible because the *748 officer had aresponsibility to ensure that Tayetto did notconsume any marijuana while operating avehicle on the streets of the Common-wealth. We affirm the order allowing themotions to suppress.

Background. Daniel and Tayetto wereeach charged with carrying a firearmwithout a license, G.L. c. 269, § 10 (a ); re-ceiving a firearm with a defaced serialnumber, G.L. c. 269, § 11C; unlawful pos-session of ammunition, G.L. c. 269, § 10 (h); two counts of unlawful possession of alarge capacity feeding device, G.L. c. 269,§ 10 (m ); and unlawful possession of aloaded firearm, G.L. c. 269, § 10 (n ). Tay-etto was also charged with three civil mo-tor vehicle infractions.

The Boston police officer who stoppedthe vehicle was the only witness at thehearing on the motions to suppress. Theprosecutor questioned the officer about thecircumstances under which he had stoppedthe vehicle, issued exit orders to the occu-pants, and searched the glove box. In amemorandum in opposition to the motionsto suppress filed after the hearing, the pro-secutor argued that, because of the pres-ence of marijuana in the vehicle, the of-ficer's search was permissible under theautomobile exception to the warrant re-

quirement, and was further justified by theneed to ensure officer safety. At no timedid the prosecutor suggest that the searchwas justified because Tayetto was drivingwhile under the influence of marijuana, andshe was not charged with that offense. Nordid the prosecutor elicit testimony at thehearing which would have supported sucha claim.

After the motions to suppress were al-lowed, the prosecutor filed a motion re-questing the judge supplement her findingsto credit the officer's testimony in its en-tirety, and also to provide more detail con-cerning the order in which the officer per-formed the search and the procedure heused. The prosecutor also filed a motionfor reconsideration that raised no new is-sues. The motion judge issued limited sup-plemental findings, among them that “[t]hecourt believes the officer searched the carbased on a hunch not substantiated by reas-onable suspicion and/or articulable facts,”and denied the motion for reconsideration.

[1] Discussion. 1. Findings of fact. Inreviewing a ruling on a motion to suppress,**847 “we accept the judge's subsidiaryfindings *749 of fact absent clear error ‘butconduct an independent review of [her] ul-timate findings and conclusions of law.’ ”Commonwealth v. Scott, 440 Mass. 642,646, 801 N.E.2d 233 (2004), quoting Com-monwealth v. Jimenez, 438 Mass. 213, 218,780 N.E.2d 2 (2002). The judge stated thather findings were based on the “credibletestimony” of the officer who made thestop. The judge stated explicitly, however,that she did not find credible the officer'stestimony that he had a heightened aware-ness of danger during the stop. It is there-fore not implicit in the judge's findings thatshe found the entirety of the officer's testi-mony credible. See Commonwealth v. Isai-

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ah I., 448 Mass. 334, 337, 861 N.E.2d 404(2007), S.C., 450 Mass. 818, 882 N.E.2d328 (2008) ( “Appellate courts may supple-ment a judge's finding of facts if the evid-ence is uncontroverted and undisputed andwhere the judge explicitly or implicitlycredited the witness's testimony”). Rather,it is apparent that the judge credited onlythose portions of the testimony that werereflected in her findings and were relevantto the specific issues before her.

We summarize the judge's findings. Atapproximately 3:40 A.M., the officer waspatrolling the Dorchester section of Bostonin a marked cruiser. He noticed a Toyotasport utility vehicle (SUV) traveling to-ward him with a nonfunctioning driver'sside headlight. The SUV “then made an ab-rupt left hand turn in front of his cruiserwithout using the directional signal.” Theofficer turned right and followed thevehicle. He activated his blue emergencylights, and the driver of the SUV “appliedthe brakes and made an abrupt stop in themiddle of the left travel lane.”

The officer approached the passengerside of the vehicle and saw that Daniel,who was sitting in the passenger seat, hadhis head down and his shoulders were“rocking back and forth.” Daniel sat up-right when the officer reached the window.The officer could smell the odor of freshlyburnt marijuana. He asked the occupants ifthey “knew anything about” the smell, andthey replied that they had been to a partywhere people were smoking. Upon the of-ficer's request, Tayetto produced herdriver's license. The officer then askedboth occupants whether they had anymarijuana in the vehicle. Tayetto“produced two small bags from herclothes.” The officer asked if there wasmore in the vehicle. The defendant re-

moved a passport, keys, *750 and a foldingknife from his pockets and placed them onthe dashboard, saying, “this is all I got.”The judge found that “this behavior wassignificant to [the officer] because it wasnot common for someone to empty theirpockets and that when they do it is becausethey are trying to conceal something.” Bythat point, vehicles were stopped behindthem on the road. The officer instructedTayetto to move her vehicle to the side ofthe road, and she did so; he did not removethe marijuana or the knife from the vehicle,or order the defendant to get out of thevehicle.

The officer also moved his cruiser tothe side of the road, and then returned tothe SUV and ordered Daniel out of his seat.He searched the defendant for drugs andweapons “based on the smell of marijuanaand his movements.” The search did notyield any contraband, and the officer in-structed Daniel to sit on the bumper of thecruiser. He then ordered Tayetto out of thevehicle, and searched her, after which heinstructed her to sit on the steps of a nearbyhouse. The officer briefly returned to hiscruiser, then searched the glove box of theSUV, where he discovered a firearm. Atthat point, he called for backup.

**848 2. Whether the search was per-missible. These events followed the pas-sage of St. 2008, c. 387, “An Act establish-ing a sensible State marihuana policy”(2008 initiative), which made possession ofone ounce or less of marijuana a civil in-fraction, rather than a criminal one. SeeG.L. c. 94C, §§ 32L–32N. See also Com-monwealth v. Cruz, 459 Mass. 459, 460,945 N.E.2d 899 (2011) (Cruz ). We held inCruz, supra at 476, 945 N.E.2d 899, that,following the passage of the 2008 initiat-ive, the smell of burnt marijuana alone

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does not provide probable cause to believethat there is evidence of a specific crime ora criminal amount of contraband—i.e.,more than one ounce of marijuana—in avehicle.

[2][3][4] When police conduct a searchof an automobile without first obtaining asearch warrant, the Commonwealth bearsthe “burden of proving the existence ofboth probable cause to believe that theautomobile contained contraband and ofexigent circumstances to justify proceedingwithout a warrant.” Commonwealth v. San-tiago, 410 Mass. 737, 744, 575 N.E.2d 350(1991). Under the “automobile exception”to the warrant requirement, the Common-wealth may satisfy its burden by provingthat officers had probable cause to *751believe that there was contraband in thevehicle. Commonwealth v. Motta, 424Mass. 117, 122, 676 N.E.2d 795 (1997).The determination of probable cause is ob-jective, and focuses on “whether the factswould warrant a ‘reasonable’ person in be-lieving the action taken to be appropriate.”Commonwealth v. Hason, 387 Mass. 169,175, 439 N.E.2d 251 (1982).

[5] a. Probable cause to search for ad-ditional contraband. The Commonwealthcontends that the officer had probablecause to search the vehicle for moremarijuana based on Tayetto's production oftwo small bags from her pockets. Prior tothe passage of the 2008 initiative, thatwould have been the case. See Common-wealth v. Garden, 451 Mass. 43, 48, 883N.E.2d 905 (2008) (odor of marijuana“alone can supply probable cause to be-lieve that marijuana is nearby,” and there-fore probable cause to search for contra-band). However, the statutory decriminal-ization of possession of small amounts ofmarijuana has affected aspects of related

criminal laws and, consequently, the law ofsearch and seizure. See Cruz, supra at475–477, 945 N.E.2d 899.

In Cruz, supra, the Commonwealth ar-gued that if police have probable cause tobelieve that any amount of marijuana existsin a motor vehicle, even an amount notsubject to criminal penalty, police mayconduct a warrantless search based on theirauthority to search for “contraband or evid-ence of a crime.” See id. at 473–474, 945N.E.2d 899, quoting Commonwealth v.Cast, 407 Mass. 891, 901, 556 N.E.2d 69(1990). We disagreed, concluding that,where no facts are articulated to supportprobable cause to believe that a criminalamount of contraband may be found in avehicle, a neutral magistrate would not is-sue a search warrant, and therefore a war-rantless search is not justified based solelyon the smell of marijuana. Cruz, supra at475–476, 945 N.E.2d 899. As we said, “Itis unreasonable for the police to spend timeconducting warrantless searches for contra-band when no specific facts suggestcriminality.” Id. at 477, 945 N.E.2d 899.See Commonwealth v. Keefner, 461 Mass.507, 517–518, 961 N.E.2d 1083 (2012)(observation that defendant had usedmarijuana, without any indication of his in-tent to distribute, did not justify warrant-less search of his person).

Here, Tayetto surrendered two smallbags of marijuana at the request of the of-ficer. Possession of the amount containedtherein constituted a civil infraction, **849not a criminal offense. “As citizens, *752we expect that if we commit a civil infrac-tion we will pay a fine; we do not expect asignificant intrusion into our privacy andliberty.” Cruz, supra at 469 n. 16, 945N.E.2d 899. Absent articulable facts sup-porting a belief that either occupant of the

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vehicle possessed a criminal amount ofmarijuana, the search was not justified bythe need to search for contraband.

[6][7][8][9] b. Officer safety. The Com-monwealth further argues that the officercould permissibly remove both occupantsand search the interior of the vehicle in or-der to ensure his safety. An officer whodoes not have probable cause to search anautomobile for evidence of a crime or con-traband may nonetheless conduct a limitedsearch for weapons if “a reasonablyprudent man in [his] position would bewarranted in the belief that the safety of thepolice of that of other persons was indanger.” Commonwealth v. Silva, 366Mass. 402, 406, 318 N.E.2d 895 (1974).“[T]he search must be confined to the areafrom which the suspect might gain posses-sion of a weapon,” either because he is stillwithin the vehicle or because he is likely toreturn to the vehicle at the conclusion ofthe officer's inquiry. Commonwealth v. Al-meida, 373 Mass. 266, 272, 366 N.E.2d756 (1977). While “it does not take muchfor a police officer to establish a reason-able basis to justify an exit order or searchbased on safety concerns,” Commonwealthv. Gonsalves, 429 Mass. 658, 664, 711N.E.2d 108 (1999), the intrusiveness of theofficer's conduct must be “proportional tothe degree of suspicion that prompted it.”Commonwealth v. Torres, 433 Mass. 669,672, 745 N.E.2d 945 (2001). See Common-wealth v. Silva, supra at 408, 318 N.E.2d895 (“The search is thus confined to whatis minimally necessary to learn whether thesuspect is armed and to disarm him oncethe weapon is discovered”).

Here, the officer ordered both occu-pants from the vehicle and searched theirpersons. Upon finding nothing, he thensearched the interior of the vehicle, includ-

ing the glove box. The Commonwealth ar-gues that a number of factors, in combina-tion, would have justified an officer in thecircumstance in conducting a limitedsearch of the vehicle: the late hour; that theofficer was outnumbered by the vehicle'soccupants; Daniel's hunched shoulders andmovement as the officer approached thevehicle; Daniel's emptying his pocketswhen not specifically requested to do so;and the presence of a noncriminal amountof marijuana.

However, as the judge found, the of-ficer's actions in allowing *753 the occu-pants to move the vehicle without first re-moving the knife from the dashboard sug-gest that the defendants' movements andactions, viewed by a trained officer on thescene, did not create a “heightened aware-ness of danger.” FN2 The officer was notfamiliar with the occupants before hestopped the vehicle, and described both ascompliant. Tayetto produced identificationupon request. Although we are mindful thatofficers must have latitude to ensure theirsafety, see Commonwealth v. Silva, supraat 407, 318 N.E.2d 895, here the search farexceeded what was necessary.

FN2. The judge found that the of-ficer had allowed Tayetto to moveher vehicle from the middle of theroad without removing Daniel'sfolding knife from the dashboard orDaniel from the vehicle, and leftthem while he moved his own cruis-er. He did not call for backup untilhe discovered the firearm. It is notnecessary to show that an individualpolice officer personally experi-enced fear, “so long as it is clearthat he was aware of specific factswhich would warrant a reasonableperson to believe he was in danger,”

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Commonwealth v. Va Meng Joe,425 Mass. 99, 102 n. 7, 682 N.E.2d586 (1997), but an officer's actionsmay suggest whether a suspect'smovements appeared threatening toa trained eye.

**850 The Commonwealth cites a num-ber of cases in which an officer acted prop-erly to ensure his safety, either by issuingexit orders or by searching the interior of avehicle in response to suspicious move-ments by its occupants. In none of thosecases, however, were there so few facts tosupport a heightened sense of danger. See,e.g., Commonwealth v. Torres, supra at674, 745 N.E.2d 945 (observation of pas-sengers bent over, suggesting they wereconcealing or retrieving weapon, justifiedheightened sense of danger when con-sidered with fact that, when vehiclestopped, all doors “flew open” and one oc-cupant immediately fled scene with back-pack); Commonwealth v. Graham, 78Mass.App.Ct. 127, 128–130, 935 N.E.2d370 (2010) (passenger reached in betweenconsole and seat during stop; driver lockedglove box after retrieving registration; po-lice knew at time that at least one occupantof vehicle had history of firearms viola-tions; and officer noticed vehicle becausepeople on sidewalk “shr[a]nk back” whenit passed). See also Commonwealth v.Silva, supra at 408–409, 318 N.E.2d 895(question was “close” whether limitedsearch of vehicle for weapons was permit-ted where passenger leaned down as if toplace something under seat, and officerknew passenger previously had been arres-ted in company of individual carrying il-legal weapon). Here, by contrast, where theofficer had little, if any, information to*754 suggest that the occupants of thevehicle were armed or dangerous, his ex-tensive search was not “proportional to the

degree of suspicion that prompted it.” SeeCommonwealth v. Torres, supra at 672,745 N.E.2d 945.

[10] c. Operating while under the influ-ence. The Commonwealth argues for thefirst time before us that the officer's searchof the vehicle was proper because he hadprobable cause to believe that the driverwas operating while under the influence ofmarijuana, in violation of G.L. c. 90, § 24 (a ). If such probable cause existed, the of-ficer properly could have removed the de-fendants from the vehicle and searched itfor evidence pertaining to that crime. SeeCommonwealth v. Johnson, 461 Mass. 44,49, 958 N.E.2d 25 (2011), quoting Com-monwealth v. Antobenedetto, 366 Mass. 51,55, 315 N.E.2d 530 (1974) (search justifiedeven though defendant was not arrested foroperating while under influence; “[t]he is-sue of paramount importance is whetherthe police, prior to the commencement of awarrantless search, had probable cause tobelieve that they would find ‘the instru-mentality of a crime or evidence pertainingto a crime’ in the vehicle”). The 2008 initi-ative, while decriminalizing possession ofsmall quantities of marijuana, explicitly didnot alter Massachusetts laws relating to op-erating while under the influence. FN3 SeeG.L. c. 94C, § 32L.

FN3. The statute specifies that“[n]othing contained herein shall beconstrued to repeal or modify exist-ing laws, ordinances or bylaws, reg-ulations, personnel practices orpolicies concerning the operation ofmotor vehicles or other actionstaken while under the influence ofmarihuana ..., possession of morethan one ounce of marihuana ..., orselling, manufacturing or traffickingin marihuana....” G.L. c. 94C, § 32L

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. See Commonwealth v. Keefner,461 Mass. 507, 510, 961 N.E.2d1083 (2012).

The Commonwealth did not raise thisargument in its opposition to the motions tosuppress, or in its motion for reconsidera-tion, nor were any questions at the eviden-tiary hearing specifically focused on thatissue.FN4 Nonetheless, the Commonwealth**851 asks that we extend our longstand-ing doctrine that “[a]n appellate*755 courtis free to affirm a ruling on grounds differ-ent from those relied on by the motionjudge if the correct or preferred basis foraffirmance is supported by the record andthe findings.” See Commonwealth v. VaMeng Joe, 425 Mass. 99, 102, 682 N.E.2d586 (1997). The Commonwealth arguesthat we may reverse the judge's decision ona ground not advanced before the judge, onwhich the judge made no specific findings,and about which the defense had no oppor-tunity to cross-examine the sole fact wit-ness.

FN4. Daniel's memorandum in sup-port of his motion to suppress, filedfollowing the first day of the hear-ing on the motion, addressed brieflywhether the officer had reasonablesuspicion that Tayetto was operat-ing while under the influence,which would have been sufficientonly to justify removing the driver,and not the defendant, a passenger,from the vehicle in order to conductfield sobriety tests. The Common-wealth's opposition did not addressimpairment or driving while underthe influence. The only testimonyelicited from the officer concerningTayetto's appearance, comportment,or reactions was when the officeridentified her in the court room and

when he agreed, on cross-ex-amination, that the demeanor ofboth defendants had been“compliant.” Further, the Common-wealth's brief before the AppealsCourt did not suggest that thesearch was justified by suspicionthat Tayetto was operating whileunder the influence; that theory wassuggested sua sponte by a justice ofthe Appeals Court during oral argu-ment.

In certain situations we may addressclaims raised for the first time on appeal,when such issues are fully briefed and ofparticular public importance, see, e.g.,Costa v. Brait Bldrs. Corp., 463 Mass. 65,70, 972 N.E.2d 449 (2012); however, weare particularly reluctant to do so wherethere are no factual findings directed to thetheory now advanced.FN5 See Common-wealth v. Bettencourt, 447 Mass. 631,633–634, 856 N.E.2d 174 (2006) ( “weneed not consider an argument that urgesreversal of a trial court's ruling when thatargument is raised for the first time on ap-peal.... Trial judges cannot be expected torule, and indeed should not, on theories notpresented to them, and defendants cannotrespond to arguments not made at the triallevel”). See also Commonwealth v. Silva,440 Mass. 772, 781, 802 N.E.2d 535(2004) (“When a defendant attempts toraise a new issue after the completion ofthe hearing's evidentiary phase, the evid-ence on that issue is likely to be ‘scant’ ornonexistent”).

FN5. The Appeals Court's decisionrelied on testimony not discussed inthe judge's findings, and on extra-polations from those findings. Thecourt held that, “[w]hile it mighthave been preferable for [the of-

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ficer] first to have made detailedobservations of Tayetto's eyes orconducted field tests for additionalevidence that she was operatingwhile under the influence ofmarijuana, his failure to do so is notfatal to the determination of prob-able cause.” Commonwealth v.Daniel, 81 Mass.App.Ct. 306, 313,962 N.E.2d 213 (2012). We dis-agree. Whether we characterizeTayetto's unsignaled turn and whatthe judge described as an “abrupt”stop as “erratic” or dangerous driv-ing, without findings as to thedriver's appearance and reactions,poor driving alone in these circum-stances will not provide probablecause to believe a driver is operat-ing while under the influence of al-cohol or drugs.

[11][12] Even were we to consider theentirety of the officer's testimony, *756and not only those of his statements spe-cifically credited by the motion judge, thattestimony would not “warrant a prudentperson in believing” that Tayetto was oper-ating while under the influence ofmarijuana. See Commonwealth v. Santaliz,413 Mass. 238, 241, 596 N.E.2d 337(1992), quoting Commonwealth v. Storey,378 Mass. 312, 321, 391 N.E.2d 898(1979), cert. denied, 446 U.S. 955, 100S.Ct. 2924, 64 L.Ed.2d 813 (1980). A per-son violates G.L. c. 90, § 24(1) (a ) (1),when she “operates a motor vehicle ...while under the influence of intoxicating li-quor, or of marijuana, narcotic drugs, de-pressants or stimulant substances.” A**852 driver may be found to have been“under the influence” when her consump-tion of such substances “diminished [her]ability to operate a motor vehicle safely.”Commonwealth v. Connolly, 394 Mass.

169, 173, 474 N.E.2d 1106 (1985). Al-though the Commonwealth “need not provethat the defendant actually drove in an un-safe or erratic manner ... it must prove a di-minished capacity to operate safely.” Id.We read the statute “in light of the legislat-ive purpose to protect the public fromdrivers whose judgment, alertness, andability to respond promptly and effectivelyto unexpected emergencies are diminishedbecause of the consumption of alcohol” ordrugs. Id. at 172–173, 474 N.E.2d 1106.See Commonwealth v. Brooks, 366 Mass.423, 427, 319 N.E.2d 901 (1974).

[13] “Erratic” driving that violates thecivil motor vehicle code may give rise to areasonable suspicion that a driver is im-paired, permitting an investigatory stop.Commonwealth v. Smigliano, 427 Mass.490, 493, 694 N.E.2d 341 (1998).However, after the officer in this casemade the stop, he did not observe anythingabout the driver that would lead a reason-able observer to believe that her capacity tooperate a vehicle was impaired by the useof marijuana.

Here, the officer smelled the odor ofburnt marijuana and recovered two smallbags of it from Tayetto, who explained thatthe smell was the result of others usingmarijuana at a party. While the officer wasnot required to credit this explanation, theCommonwealth elicited no testimony thatTayetto showed any signs of impairmentduring their encounter. The officer did nottestify that Tayetto's eyes were red orglassy, that her speech or movements wereunusual, or that her responses to question-ing were inappropriate or uncooperative.FN6 He did not perform any *757 tests toassess her physical and mental acuity. In-deed, he instructed her to move her vehicleherself to allow traffic to pass. In short,

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there was no indication that her “judgment,alertness, and ability to respond promptlyand effectively to unexpected emergencies[were] diminished” by the consumption ofmarijuana. Commonwealth v. Connolly,supra at 172–173, 474 N.E.2d 1106.

FN6. Manifestations of impairmentmay differ between subjects whoare under the influence of liquorand those who are under the influ-ence of marijuana, depressants, orstimulant substances. CompareCommonwealth v. Reynolds, 67Mass.App.Ct. 215, 219, 852 N.E.2d1124 (2006) (following motorvehicle accident in which driver hitand killed child on bicycle, duringwhich vehicle flipped over butdriver was uninjured, driver takingdepressant drugs was unusually“subdued” given circumstances);Commonwealth v. Butterfield, 44Mass.App.Ct. 926, 926, 691 N.E.2d975 (1998) (driver who ingested al-cohol had red eyes, slurred speech,and lack of balance, and exhibitedbelligerent behavior). Cf. Common-wealth v. Smola, 69 Mass.App.Ct.1113, 2007 WL 2163991 (2007)(driver under influence of marijuanahad “crab”-like sideways walk; red,bloodshot eyes; and dazed look).

d. Duty to ensure public safety. TheCommonwealth argues that, notwithstand-ing the officer's lack of probable cause tosearch the vehicle, he was “duty-bound” toconduct the search to ensure that the occu-pants would not smoke marijuana whiledriving. This argument is based largely onthe assumption, unsupported in the find-ings, that Tayetto had ingested marijuanabefore driving or while driving prior to thepolice stop. See Commonwealth v. Betten-

court, supra (declining to consider“community caretaker” rationale for searchwhen raised for first time on appeal). Wedecline to consider this rationale, whichwas not argued below and not supported bythe findings of the motion judge.

**853 Order allowing motions to sup-press affirmed.

Mass.,2013.Com. v. Daniel464 Mass. 746, 985 N.E.2d 843

Briefs and Other Related Documents (Backto top)

• SJC-11214 (Docket) (May 16, 2012)

Judges and Attorneys(Back to top)

Judges

Judges

• Duffly, Hon. Fernande R.V.Commonwealth of Massachusetts SupremeJudicial CourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-versal Report | Judicial Expert ChallengeReport | Profiler

• Gants, Hon. Ralph DreyfusCommonwealth of Massachusetts SupremeJudicial CourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-versal Report | Judicial Expert ChallengeReport | Profiler

• Ireland, Hon. Roderick L.Commonwealth of Massachusetts SupremeJudicial CourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-

985 N.E.2d 843 Page 12464 Mass. 746, 985 N.E.2d 843(Cite as: 464 Mass. 746, 985 N.E.2d 843)

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versal Report | Judicial Expert ChallengeReport | Profiler

• Lenk, Hon. Barbara A.Commonwealth of Massachusetts SupremeJudicial CourtBoston, Massachusetts 02108Litigation History Report | Judicial Re-versal Report | Judicial Expert ChallengeReport | Profiler

• Lyons, Hon. Tracy-LeeCommonwealth of Massachusetts BostonMunicipal Court Department, Brighton Di-visionBrighton, Massachusetts 02135Litigation History Report | Judicial Re-versal Report | Profiler

END OF DOCUMENT

985 N.E.2d 843 Page 13464 Mass. 746, 985 N.E.2d 843(Cite as: 464 Mass. 746, 985 N.E.2d 843)

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Date of Printing: Dec 12, 2013

KEYCITE

Com. v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (Mass., Apr 05, 2013) (NO. SJC-11214)

History

Direct History

1 Com. v. Daniel, 81 Mass.App.Ct. 306, 962 N.E.2d 213 (Mass.App.Ct. Feb 16,2012) (NO. 10-P-1495)

Review Granted by2 Com. v. Daniel, 462 Mass. 1101, 967 N.E.2d 634 (Mass. May 03, 2012) (Table)

AND Reversed by=> 3 Com. v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (Mass. Apr 05, 2013) (NO. SJC-

11214)

Court Documents

Appellate Court Documents (U.S.A.)

Mass.App.Ct. Appellate Briefs

4 COMMONWEALTH OF MASSACHUSETTS, Appellant, v. CLINT DANIEL &ANOTHER, Defendant-Appellee., 2011 WL 1569150 (Appellate Brief)(Mass.App.Ct. Apr. 2011) Brief and Appendix for the Commonwealth on Ap-peal from a Judgment of the Central Division of the Boston Municipal Court(NO. 2010-P-1495)

5 COMMONWEALTH, v. Clint DANIEL & Another., 2011 WL 2870589(Appellate Brief) (Mass.App.Ct. Jun. 2011) Brief for the Defendant-Appellee(NO. 2010-P-1495)

Dockets (U.S.A.)

Mass.

6 COMMONWEALTH v. CLINT DANIEL (AND A COMPANION CASE), NO.SJC-11214 (Docket) (Mass. May 16, 2012)

Mass.App.Ct.

7 COMMONWEALTH v. CLINT DANIEL & ANOTHER, NO. 2010-P-1495(Docket) (Mass.App.Ct. Aug. 25, 2010)

© 2013 Thomson Reuters. All rights reserved.

© 2013 Thomson Reuters. All rights reserved.

Date of Printing: Dec 12, 2013

KEYCITE

Com. v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (Mass., Apr 05, 2013) (NO. SJC-11214)

© 2013 Thomson Reuters. All rights reserved.

Date of Printing: Dec 12, 2013

KEYCITE

Com. v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (Mass. Apr 05, 2013) (NO. SJC-11214)

Citing References

Positive Cases (U.S.A.)

Examined

1 Com. v. Mathieson-Jacob, 993 N.E.2d 751, 751+, 84 Mass.App.Ct. 1110, 1110+(Mass.App.Ct. Sep 12, 2013) (Table, text in WESTLAW, NO. 11-P-1824) HN: 6(N.E.2d)

Cited

2 Com. v. Humberto H., --- N.E.2d ----, 2013 WL 6153232, *5, 466 Mass. 562, 562(Mass. Nov 26, 2013) (NO. SJC-11297) HN: 5 (N.E.2d)

3 Com. v. Bartlett, 987 N.E.2d 1213, 1218, 465 Mass. 112, 117 (Mass. May 13,2013) (NO. SJC-11187) " HN: 13 (N.E.2d)

4 Com. v. Pacheco, 985 N.E.2d 839, 841+, 464 Mass. 768, 769+ (Mass. Apr 05,2013) (NO. SJC-11216) " HN: 2,3,5 (N.E.2d)

5 Com. v. Jackson, 985 N.E.2d 853, 859+, 464 Mass. 758, 766+ (Mass. Apr 05,2013) (NO. SJC-11319) HN: 5 (N.E.2d)

6 Com. v. Almeida, 995 N.E.2d 1152, 1152+, 84 Mass.App.Ct. 1117, 1117+(Mass.App.Ct. Oct 30, 2013) (Table, text in WESTLAW, NO. 12-P-904) HN: 5(N.E.2d)

7 Com. v. Rosado, 995 N.E.2d 95, 104, 84 Mass.App.Ct. 208, 221 (Mass.App.Ct.Aug 30, 2013) (NO. 11-P-1778) (in dissent) HN: 9 (N.E.2d)

Secondary Sources (U.S.A.)

8 Validity of Warrantless Search of Motor Vehicle Based on Odor of Marijuana--State Cases, 114 A.L.R.5th 173 (2003) HN: 10 (N.E.2d)

9 Search and seizure: "furtive" movement or gesture as justifying police search, 45A.L.R.3d 581 (1972) HN: 6 (N.E.2d)

10 Constitutional Rights of the Accused s 4:41, Exceptions to the warrant require-ment-Frisking-The circumstances and limitations (2013) HN: 8 (N.E.2d)

11 12 Mass. Prac. Series s 29:6, Scope of the threshold inquiry or investigatory stop(2013) HN: 5,10 (N.E.2d)

12 32 Mass. Prac. Series s 55, Search and seizure (2013) HN: 3 (N.E.2d)13 32 Mass. Prac. Series s 466.50, Act establishing a sensible state marijuana policy

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(2013) HN: 5 (N.E.2d)14 43 Mass. Prac. Series s 1.13, District Court (2013) HN: 5 (N.E.2d)15 50 Mass. Prac. Series s 3:22, Introduction (2013) HN: 10 (N.E.2d)16 14A Mass. Prac. Series s 7.14, Generally (2013)17 14A Mass. Prac. Series s 7.29, Stop of a motor vehicle-Scope of detention or

search (2013) HN: 5,6,9 (N.E.2d)18 14A Mass. Prac. Series s 7.64, Motor vehicle searches-Generally (2013) HN:

3,5,10 (N.E.2d)19 14A Mass. Prac. Series s 7.65, Motor vehicle searches-Scope of search (2013)

HN: 5,10 (N.E.2d)20 61 Am. Jur. Proof of Facts 3d 115, Proof That Driver Was "Operating" Motor

Vehicle While Intoxicated (2013) HN: 12 (N.E.2d)21 76 Am. Jur. Trials 213, Litigating a Driving While Intoxicated Case (2013) HN:

11 (N.E.2d)22 Am. Jur. 2d Searches and Seizures s 61, Automobile exception to warrant re-

quirement (2013) HN: 8 (N.E.2d)23 CJS Searches and Seizures s 116, Scope of search (2013) HN: 5 (N.E.2d)24 12 No. 6 Quinlan, Investigative Stops Law Bulletin NL 3, In Brief (2013) HN:

5,6 (N.E.2d)

Court Documents

Appellate Court Documents (U.S.A.)

Appellate Briefs

25 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Rene VAZQUEZ, De-fendant-Appellant., 2013 WL 5425601, *1+ (Appellate Brief) (7th Cir. Sep 16,2013) Brief in Support of Motion to Withdraw as Defendant's Appointed Ap-pellate Counsel Pursuant to Anders v. California, 386 U.S. 738 (1967), andShort Appendix (NO. 13-2246) HN: 5 (N.E.2d)

26 COMMONWEALTH OF MASSACHUSETTS, Appellant, v. Adam DAVILA,Defendant-Appellee., 2013 WL 5052084, *1+ (Appellate Brief) (Mass. Aug 13,2013) Brief and Supplemental Record Appendix For The Defendant (NO.SJC-11463)

27 COMMONWEALTH, Appellee, v. Robert MORGANTI, Jr., Appellant., 2013WL 4737305, *1+ (Appellate Brief) (Mass. May 17, 2013) Brief for the Com-monwealth (NO. SJC-11281)

28 COMMONWEALTH, Appellee, v. John C. DEPIERO, Appellant., 2013 WL6002798, *1+ (Appellate Brief) (Mass.App.Ct. Oct 24, 2013) Reply Brief andSupplemental Record Appendix for the Defendant (NO. 2013-P-0572)

29 COMMONWEALTH, Appellee, v. Dolores G. PAINE, Appellant., 2013 WL

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5666441, *1+ (Appellate Brief) (Mass.App.Ct. Oct 2013) Brief for the Com-monwealth (NO. 2013-P-0229)

30 COMMONWEALTH, Appellee, v. Jose VENTURA, Appellant., 2013 WL5506284, *1+ (Appellate Brief) (Mass.App.Ct. Sep 18, 2013) Brief and Supple-mental Record Appendix for the Commonwealth (NO. 2013-P-725) "HN: 4 (N.E.2d)

31 COMMONWEALTH, Plaintiff-Appellee, v. Ara MARTIROSSIAN, Defendant-Appellant., 2013 WL 5278926, *1+ (Appellate Brief) (Mass.App.Ct. Sep 2013)Brief & Record Appendix for Ara Martirossian (NO. 2013-P-0823)

32 COMMONWEALTH, v. Matthew SHERIDAN., 2013 WL 4776333, *1+(Appellate Brief) (Mass.App.Ct. Aug 2013) Brief and Record Appendix for theDefendant on Appeal from the Quincy District Court (NO. 2013-P-0038) "

HN: 5,10 (N.E.2d)33 COMMONWEALTH, Appellee, v. William BRIGHTMAN, Defendant-Appel-

lant., 2013 WL 3856906, *1+ (Appellate Brief) (Mass.App.Ct. Jul 05, 2013)Reply Brief (NO. 2012-P-2008)

34 COMMONWEALTH, Appellant, v. Matthew W. OVERMYER, Appellee., 2013WL 2492990, *1+ (Appellate Brief) (Mass.App.Ct. May 22, 2013) Reply Briefof the Commonwealth, Appellant (NO. 2013-P-0283) " HN: 5,10(N.E.2d)

35 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. Ramon E.MONTERO, Appellant., 2013 WL 2408785, *1+ (Appellate Brief)(Mass.App.Ct. May 17, 2013) Ramon Montero's Brief, (NO. 2012-P-1930)

36 COMMONWEALTH OF MASSACHUSETTS, v. Pabir R. BATRA., 2013 WL5590175, *1+ (Appellate Brief) (Mass.App.Ct. 2013) Brief and Record Ap-pendix for the Defendant (NO. 2013-P-0950) HN: 5 (N.E.2d)

37 COMMONWEALTH OF MASSACHUSETTS, Appellant, v. Cornell BROWN,Defendant - Appellee., 2012 WL 8676056, *1+ (Appellate Brief) (Mass.App.Ct.2012) Brief for Appellee (NO. 2012-P-1849) HN: 5 (N.E.2d)

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