Commonwealth v. Jordan (and a companion case) (Lawyers Weekly No. 10-124-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11440 COMMONWEALTH vs. KOREY JORDAN (and a companion case[1]). Suffolk. March 6, 2014. – July 14, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Appeal, Appeal by Commonwealth, Interlocutory appeal, Motion to suppress. Notice, Timeliness. Rules of Appellate Procedure. Time. Appeals Court, Jurisdiction. Supreme Judicial Court, Superintendence of inferior courts. Firearms. Evidence, Firearm. Constitutional Law, Search and seizure, Investigatory stop, Probable cause, Stop and frisk. Probable Cause. Threshold Police Inquiry. Search and Seizure, Motor vehicle, Threshold police inquiry, Reasonable suspicion, Probable cause. Complaints received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 28, 2009. Following transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Michael J. Coyne, J. An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Allison R. Callahan, Assistant District Attorney (Benjamin R. Megrian, Assistant District Attorney, with her) for the Commonwealth. Dennis M. Toomey for Korey Jordan. Michael A. Contant for Bonnie S. Greene. BOTSFORD, J. This is an interlocutory appeal brought by the Commonwealth from an order of a Boston Municipal Court judge allowing the defendants’ motion to suppress. The procedural history reflects that the Commonwealth’s notice of appeal was filed significantly late in the trial court, and its application to the single justice of this court for leave to appeal was filed significantly late in the county court. In neither instance did the Commonwealth file a timely motion to enlarge the time for filing. A single justice allowed the application, and the case was entered in the Appeals Court. In an unpublished order, a panel of that court dismissed the appeal on a jurisdictional ground, believing that it had no authority to authorize the late-filed notice of appeal. We granted the Commonwealth’s request for further appellate review. For the reasons explained hereafter, we do not dismiss the appeal. Rather, we affirm the order allowing the motion to suppress. In addition, because there has sometimes been ambiguity in the manner in which the single justices of this court have […]
School Committee of Lexington v. Zagaeski (Lawyers Weekly No. 10-125-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11536 SCHOOL COMMITTEE OF LEXINGTON vs. MARK ZAGAESKI. Middlesex. March 4, 2014. – July 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Arbitration, Judicial review, Authority of arbitrator, Award, School committee. Education Reform Act. Statute, Construction. School and School Committee, Arbitration, Termination of employment. Public Employment, Termination. Civil action commenced in the Superior Court Department on April 27, 2012. Motions to vacate and to affirm an arbitration award were heard by Bruce R. Henry, J. The Supreme Judicial Court granted an application for direct appellate review. Geoffrey R. Bok (Colby C. Brunt with him) for the plaintiff. Daniel S. O’Connor (Laura Elkayam with him) for the defendant. Stephen J. Finnegan & Michael J. Long, for Massachusetts Association of School Commitees, Inc. & another, amici curiae, submitted a brief. Ira Fader for Massachusetts Teachers Association, amicus curiae, submitted a brief. SPINA, J. In this case, the plaintiff, the school committee of Lexington (school committee), appealed a decision by a Superior Court judge confirming an arbitrator’s award reinstating a teacher, Mark Zagaeski, after the school district superintendent had terminated his employment for conduct unbecoming a teacher. We granted the plaintiff’s application for direct appellate review. This case presents an issue left unresolved by this court in School Dist. of Beverly v. Geller, 435 Mass. 223 (2001). We must determine the scope of authority granted to an arbitrator by G. L. c. 71, § 42 (teacher dismissal statute), to reinstate a teacher who was dismissed for conduct that the arbitrator found constituted, at least nominally, a valid basis for dismissal.[1] We conclude that in light of the stated purposes of the Massachusetts Education Reform Act of 1993 (Reform Act or Act), of which the teacher dismissal statute is a part, the arbitrator exceeded the scope of his authority by awarding reinstatement of Zagaeski on the basis of the “best interests of the pupils” in the district, despite having found that the school district carried its burden to show facts amounting to conduct unbecoming a teacher. See G. L. c. 69, § 1, as appearing in St. 1993, c. 71, § 27; G. L. c. 71, § 42. We reverse the decision of the Superior Court judge and vacate the arbitration award.[2] 1. Background. a. Facts.[3] Zagaeski’s dismissal from his position at the Lexington public schools […]
Commonwealth v. White (Lawyers Weekly No. 10-122-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11497 COMMONWEALTH vs. WILLIAM T. WHITE, JR. Middlesex. March 4, 2014. – July 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly & Lenk, JJ. Search and Seizure, Arrest, Container, Inventory, Plain view, Protective frisk, Search incident to lawful arrest. Constitutional Law, Search and seizure, Arrest. Controlled Substances. Practice, Criminal, Motion to suppress, Warrant. Complaint received and sworn to in the Cambridge Division of the District Court Department on April 13, 2007. A pretrial motion to suppress evidence was heard by Severlin B. Singleton, III, J., and the case was heard by Michele B. Hogan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Edward R. Molari for the defendant. Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth. GANTS, J. The issues presented in this case concern the lawful scope of a search incident to arrest, an inventory search, and a seizure under the plain view doctrine where a defendant is arrested on outstanding arrest warrants. Because we conclude that, in the circumstances of this case, the police exceeded the lawful scope of a search under each of these exceptions to the warrant requirement, we reverse the denial of the defendant’s motion to suppress, vacate the defendant’s conviction, and remand the case for a new trial. Background. We summarize the facts as found by the motion judge, supplementing those findings with evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On the morning of April 13, 2007, Officers Steven Bikofsky and Brian Hussey of the Cambridge police department, while on patrol in a marked cruiser, learned that the registered owner of a motor vehicle they observed had two outstanding arrest warrants, one for violation of a protective order under G. L. c. 209A and another for a drug offense. They stopped the motor vehicle by pulling behind it and activating the cruiser’s blue lights. Officer Bikofsky approached the motor vehicle on foot and asked the driver for his driver’s license. After confirming that the driver (the defendant) was the registered owner, Officer Bikofsky ordered him out of the vehicle, handcuffed him, and placed him under arrest on the […]
Weiler v. PortfolioScope, Inc., et al. (Lawyers Weekly No. 10-123-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11476 MILTON C. WEILER, JR. vs. PORTFOLIOSCOPE, INC., & others.[1] Suffolk. March 3, 2014. – July 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Secured Transactions. Uniform Commercial Code, Secured creditor, Secured transaction, Good faith. Corporation, Stock. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Interference with contractual relations. Conversion. Consumer Protection Act, Unfair or deceptive act. Uniform Fraudulent Transfer Act. Civil action commenced in the Superior Court Department on February 17, 2009. The case was heard by Margaret R. Hinkle, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Curtis C. Pfunder for the plaintiff. Andrew N. Nathanson (Keith P. Carroll with him) for the defendants. BOTSFORD, J. The disputes in this case arise from a complex web of relationships between various individual and corporate entities. The plaintiff, Milton C. Weiler, Jr., the former president and chief operating officer of the defendant corporation, PortfolioScope, Inc. (PortfolioScope), brought suit against the defendants raising various claims, including breach of contract, violation of G. L. c. 93A, and fraudulent transfers pursuant to the Uniform Fraudulent Transfer Act (UFTA). After a jury-waived trial, Weiler prevailed, and a judgment entered in his favor. The Appeals Court reversed the judgment in part, and we granted Weiler’s application for further appellate review. For the reasons discussed hereafter, we affirm the judgment of the Superior Court in almost all respects. 1. Background. We summarize the pertinent facts as found by the trial judge; additional facts are discussed in connection with the issues raised. In 1981 and 1998, respectively, Weiler cofounded Computer Aided Decisions and CAD Research, Inc. (CAD entities), companies that developed and marketed software to help manage investment portfolios. In early 2000, Spencer Trask & Co. (Spencer Trask), a venture capital firm effectively controlled by the defendant Kevin Kimberlin,[2] acquired the CAD entities from Weiler and the cofounder. After the purchase, the CAD entities were merged into a new company that became the defendant PortfolioScope. Weiler received cash as well as stock and stock options in the new company at the time of the sale and served at that time as its president and chief operating officer. In 2001, PortfolioScope began experiencing financial difficulty, and it received a series […]
Wyman, et al. v. Ayer Properties, LLC (Lawyers Weekly No. 10-120-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11474 BRYAN WYMAN & others,[1] trustees,[2] vs. AYER PROPERTIES, LLC. Middlesex. March 4, 2014. – July 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Real Property, Condominium. Condominiums, Common area. Negligence, Construction work, Economic loss. Damages, Replacement or reconstruction of building, Repairs. Civil action commenced in the Superior Court Department on December 8, 2005. The case was heard by Paul A. Chernoff, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Thomas O. Moriarty (David M. Rogers with him) for the plaintiffs. Thomas H. Hayman (Patrick T. Uiterwyk with him) for the defendant. Henry A. Goodman, for Community Associations Institute, amicus curiae, submitted a brief. CORDY, J. On December 8, 2005, Brian Wyman, Frank Thoms, and Vincent Cascio, as trustees of the Market Gallery Condominium Trust (trustees), filed a civil action against Ayer Properties, LLC (Ayer), seeking damages stemming from the negligent construction of elements of a condominium building by Ayer. The trustees alleged that Ayer — which had purchased and converted the building in question into condominiums — had negligently constructed the window frames, the exterior brick masonry, and the roof of the building, resulting in damage to both the common areas of the building and individual residential units.[3] After a jury-waived trial, a Superior Court judge found that Ayer was negligent in its construction of the window frames, masonry, and roof. He awarded damages for Ayer’s negligence as to the window frames and the roof, because their improper installation had resulted in damage to both the common areas and several individual units. However, because he found that the damage resulting from the defective masonry work was limited to the masonry itself and did not cause or include damage to any individual units, the judge concluded that the economic loss rule precluded the trustees from recovering for Ayer’s negligence as to that portion of the building.[4] In determining the appropriate measure of damages, the judge first calculated the cost to repair and replace the damaged portions of the building,[5] and then reduced that amount by twenty per cent to reflect what the costs would have been at the time of the negligent construction rather than at the time of the actual expenditures for repair […]
J.M. Hollister, LLC v. Architectural Access Board (Lawyers Weekly No. 10-121-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11473 J.M. HOLLISTER, LLC. vs. ARCHITECTURAL ACCESS BOARD. Suffolk. March 3, 2014. – July 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Architectural Access Board. Handicapped Persons. Administrative Law, Judicial review, Substantial evidence, Agency’s interpretation of regulation. Statute, Construction. Zoning, Variance. Words, “Entrance.” Civil action commenced in the Superior Court Department on June 25, 2010. The case was heard by John C. Cratsley, J., on a motion for judgment on the pleadings. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Daniel P. Dain for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. Richard M. Glassman, for Disability Law Center & others, amici curiae, submitted a brief. CORDY, J. This case turns on the interpretation and application of a Massachusetts regulation requiring that each “entrance” to a public building or facility be accessible to persons with disabilities.[1] See G. L. c. 22, § 13A; 521 Code Mass. Regs. §§ 5.1, 25.1 (2006). The Architectural Access Board (board) issued a final decision concluding that each of the three doorways of a retail store in Kingston, operated by J.M. Hollister, LLC (Hollister), was a separate entrance, and therefore that each doorway was required to be accessible to persons with disabilities. The board also denied Hollister’s request for a variance from compliance with the accessibility regulations. Hollister sought judicial review of the decision pursuant to G. L. c. 30A.[2] A Superior Court judge affirmed the board’s decision, as did the Appeals Court on appeal. See J.M. Hollister, LLC v. Architectural Access Bd., 83 Mass. App. Ct. 513, 524 (2013) (Hollister). We granted Hollister’s application for further appellate review and also affirm the judgment of the Superior Court, because the board’s decision was based on substantial evidence of meaningful differences in the use and functionality of the three doorways at issue, and because the denial of the variance was based on evidence of a substantial benefit of access for persons with disabilities.[3] Background. 1. Regulatory framework. General Laws c. 22, § 13A, empowers the board to adopt rules and regulations “designed to make public buildings and facilities accessible to, functional for, and safe for use by persons with disabilities.” See 521 Code Mass. Regs. § 2.1 (2006).[4] These regulations are intended to ensure that “all […]
DOE, SEX OFFENDER REGISTRY BOARD NO. 156545 vs. SEX OFFENDER REGISTRY BOARD (Lawyers Weekly No. 10-119-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11495 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 156545 vs. SEX OFFENDER REGISTRY BOARD. July 9, 2014. Sex Offender. Mandamus. Practice, Civil, Sex offender, Action in nature of mandamus, Transcript of testimony. Administrative Law, Proceedings before agency, Adjudicatory proceeding, Record, Judicial review. The petitioner appeals from a judgment of a single justice of this court declining to compel the Sex Offender Registry Board (board) to produce a transcript of the petitioner’s classification hearing. We hold that, in the peculiar circumstances of this case, the petitioner is entitled to the transcript. Background. In September 2009, the board notified the petitioner that it had preliminarily classified him as a level three sex offender. The petitioner requested a hearing, pursuant to G. L. c. 6, § 178L, which was held on July 29, 2010. After the hearing had been completed but before the hearing examiner had rendered a decision, the examiner became unavailable, and a successor examiner was appointed pursuant to 803 Code Mass. Regs. § 1.22(4) (2002).[1] The successor examiner issued his decision on January 12, 2011, classifying the petitioner as a level three offender. The petitioner thereafter commenced an action for judicial review in the Superior Court pursuant to G. L. c. 30A; his counsel did not order a transcript of the classification hearing at that point, as he might have done, for inclusion in the administrative record. The board filed its answer, in the form of the administrative record, which did not include a copy of a transcript. A judge in the Superior Court denied the petitioner’s motion for judgment on the pleadings and affirmed the board’s decision classifying the petitioner as a level three offender. The petitioner appealed, and his appeal was entered in the Appeals Court on March 9, 2012. The Appeals Court stayed the appeal, at the petitioner’s request, to allow the petitioner time to file, and the Superior Court to consider, a motion to remand the matter to the board. The petitioner then filed in the Superior Court, pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), a motion seeking remand of the matter to the board so that it could reconsider his “motion for funds to retain an expert,” or, “[a]lternatively, [to hold] a new classification hearing because he was denied the effective assistance of counsel at the hearing.” He […]
Commonwealth v. Rex (Lawyer Weekly No. 10-118-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11480 COMMONWEALTH vs. JOHN REX. Norfolk. March 3, 2014. – July 9, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ. Obscenity, Child pornography. Habitual Offender. Practice, Criminal, Dismissal, Grand jury proceedings. Grand Jury. Lewdness. Probable Cause. Constitutional Law, Freedom of speech and press. Evidence, Photograph. Indictments found and returned in the Superior Court Department on January 18, 2012. A motion to dismiss was heard by Mitchell H. Kaplan, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Varsha Kukafka, Assistant District Attorney (Anne Yas, Assistant District Attorney, with her) for the Commonwealth. Bruce W. Carroll for the defendant. Carlo Obligato, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. SPINA, J. A Norfolk County grand jury indicted the defendant, John Rex, on seven counts of possession of child pornography, G. L. c. 272, § 29C, and seven counts of being a habitual offender, G. L. c. 279, § 25.[1] Relying on Commonwealth v. McCarthy, 385 Mass. 160 (1982), the defendant filed a motion to dismiss the indictments, which the Commonwealth opposed. He claimed that the seven photocopies of photographs of naked children (excerpted from a National Geographic magazine, a sociology textbook, and a naturist catalogue) on which the indictments were based did not constitute child pornography within the meaning of G. L. c. 272, § 29C, and were protected by his right to free speech under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. Following a hearing, a judge in the Superior Court allowed the motion to dismiss, concluding that none of the photocopies constituted a “lewd exhibition” of the children’s body parts as described in G. L. c. 272, § 29C (vii). The Commonwealth filed an appeal pursuant to G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996). The case was entered in the Appeals Court, and we transferred it to this court on our own motion. At issue is whether the judge properly dismissed the indictments on the ground that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography. Because we conclude that the photocopies did not […]
Categories: News Tags: 1011814, Commonwealth, Lawyer, Weekly
Commonwealth v. Overmyer (Lawyers Weekly No. 10-117-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11481 COMMONWEALTH vs. MATTHEW W. OVERMYER. Berkshire. March 3, 2014. – July 9, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Narcotic Drugs. Constitutional Law, Narcotic drugs, Search and seizure, Reasonable suspicion, Probable cause. Probable Cause. Search and Seizure, Motor vehicle, Reasonable suspicion, Probable cause. Complaint received and sworn to in the Pittsfield Division of the District Court Department on May 21, 2012. A pretrial motion to suppress evidence was heard by Jacklyn M. Connly, J. An application for leave to prosecute an interlocutory appeal was allowed by Cordy, 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 P. Bossé, Assistant District Attorney, for the Commonwealth. Janet H. Pumphrey for the defendant. The following submitted briefs for amici curiae: Ester J. Horwich & Justin R. Dashner for Committee for Public Counsel Services. Steven S. Epstein & Marvin Cable for National Organization for the Reform of Marijuana Laws. LENK, J. In Commonwealth v. Cruz, 459 Mass. 459, 472 (2011) (Cruz), we held that, in the wake of the 2008 ballot initiative decriminalizing possession of one ounce or less of marijuana (2008 initiative), “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity.” This case requires us to resolve a question not explicitly answered in Cruz, supra: whether the smell of unburnt, as opposed to burnt, marijuana suffices to establish probable cause to believe that an automobile contains criminal contraband or evidence of a crime.[1] Here, where police searched the defendant’s vehicle after seizing a “fat bag” of marijuana from the glove compartment, and after perceiving an odor of unburnt marijuana, we hold that such odor, standing alone, does not provide probable cause to search an automobile. Because it is not clear on this record, however, whether police had probable cause to arrest the defendant for criminal possession of marijuana on the basis of the marijuana seized from the glove compartment, we remand the matter to the District Court for further proceedings on that issue. 1. Background. We summarize the facts found by the judge after an evidentiary hearing on the defendant’s motion to suppress […]
Commonwealth v. Craan (Lawyers Weekly No. 10-116-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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: 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 criminal complaint issued charging […]