A Weymouth man was pulled over in Framingham on September 23, 2013 for what should have been a routine traffic stop. According to an article in MetroWest Daily News, the man allegedly rolled through a stop sign on Franklin Street. Police patrolling the area observed the traffic infraction and pulled him over, presumably to give him a citation. According to the police, however, the man appeared to be nervous and the officer ordered him out of the car. After the exit order, the officer searched the man. The officer found over $5,000 in his pocket, and also allegedly saw marijuana in a jar and a glass pipe inside the vehicle. The officer called for back up and the car was searched. Police recovered between seven and eight pounds of marijuana in the trunk. The police also recovered an additional $2,000 from inside the car. The man was charged with possession of marijuana with intent to distribute, a school zone violation, and driving with a suspended license, subsequent offense. He was arraigned in Framingham District Court and held on $8,000 bail.
While many would argue that the amount of marijuana found in the car is indicative of possession with an intent to sell rather than mere personal use, the Commonwealth may nonetheless have trouble proving its case. Specifically, the constitutionality of the exit order, search of the man’s person, and subsequent search of the car is questionable. Under Massachusetts case law, the police are only allowed to order someone out of a car if the officer has cause to believe that the person has committed a crime, is armed and dangerous, or there is some pragmatic reason that requires the person to exit (for example, if the police have a legal basis to search the car and need the person to get out in order to do so). Although the police claim that the man was nervous, Massachusetts judges have repeatedly stated that appearing nervous when interacting with the police is a perfectly understandable reaction and that nervousness alone is not a lawful basis for any sort of search or exit order. Without some additional indicators that the man was involved in some sort of criminal activity or was a danger, the police had no legal basis for ordering him out of the car.
The Commonwealth may try and argue that the officer’s observations of the marijuana and glass pipe constitute a basis to believe that the man was engaged in some sort of criminal conduct, such as possession with intent to sell, or that he was operating under the influence of drugs. The facts of the case, however, simply do not support that argument. Although the article does not identify the amount of marijuana in the jar, it can be inferred that it was likely less than one ounce. Under G. L. c. 94C, § 32L, officers may issue a civil citation for possession of under one ounce of marijuana, but possession of that amount or less does not constitute criminal activity. Additionally, following the passage of § 32L, the Supreme Judicial Court made it clear in Commonwealth v. Cruz that the mere observation or likely presence of marijuana (without some additional indicator that the amount present exceeds one ounce) is not a sufficient basis for an exit order.
Likewise, although operating under the influence of marijuana – or any other drug or alcohol – is criminal, there does not appear to be any basis for the Commonwealth to make a claim that the man was high at the time he was driving the car. In particular, there is no indication that the officer smelled any burnt or fresh marijuana, that the officer observed the man’s pupils to be noticeably dilated or that his eyes were bloodshot, or that the officer noticed that he was responding to the officer’s questions abnormally.
Without a valid basis to order the man out of the car, everything else that followed from the illegal exit order will be inadmissible in court. Therefore, despite the somewhat problematic amount of marijuana and money recovered from the man and the car, he may well succeed in winning his case.
If you are facing criminal charges like the ones in this case, you will need an attorney who is well versed in search and seizure law, and who is willing to fight for your constitutional rights. Attorney Daniel Cappetta has handled numerous cases involving police exit orders and searches. He can help you figure out if the police violated your rights, and what you can do about it. Call him for a free consultation today.