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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]