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

746, 985 N.E.2d 843)

Page 1

West Headnotes Briefs and Other Related Documents Judges and Attorneys Supreme Judicial Court of Massachusetts, Suffolk. COMMONWEALTH v. Clint DANIEL (and a companion case FN1 ). FN1. Commonwealth vs. Alyson Tayetto. SJC11214. Argued Dec. 6, 2012. Decided April 5, 2013. Background: Defendants charged with multiple firearm offenses filed motion to suppress evidence. The Boston Municipal Court Department, Suffolk County, TracyLee Lyons, J., granted motion. Commonwealth's application for leave to prosecute an interlocutory appeal was allowed by Ralph D. Gants, J., in the Supreme Judicial Court, and the appeal was reported by him to the Appeals Court. The Appeals Court, 81 Mass.App.Ct. 306, 962 N.E.2d 213, reversed. Holdings: After granting leave to obtain further appellate review, the Supreme Judicial Court, Duffly, J., held that: (1) officer lacked probable cause to conduct warrantless search of vehicle; (2) concern for officer safety did not support search of vehicle for weapons; and (3) search was not justified by concern that driver was driving under the influence of marijuana. Trial court affirmed. [1] Criminal Law 110 1134.49(4)

110 Criminal Law 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)4 Scope of Inquiry 110k1134.49 Evidence 110k1134.49(4) k. Illegally obtained evidence. Most Cited Cases Criminal Law 110 1158.12

110 Criminal Law 110XXIV Review 110XXIV(O) Questions of Fact and Findings 110k1158.8 Evidence 110k1158.12 k. Evidence wrongfully obtained. Most Cited Cases Appellate court accepts suppression court's subsidiary findings of fact absent clear error, but conducts an independent review of court's ultimate findings and conclusions of law. [2] Searches and Seizures 349 192.1

349 Searches and Seizures 349VI Judicial Review or Determination 349k192 Presumptions and Burden of Proof 349k192.1 k. In general. Most Cited Cases When police conduct a search of an automobile without first obtaining a search warrant, the commonwealth bears the burden of proving the existence of both probable cause to believe that the automobile contained contraband and of exigent circumstances to justify proceeding without a warrant. U.S.C.A. Const.Amend. 4.

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 2

[3] Searches and Seizures 349

62

349 Searches and Seizures 349I In General 349k60 Motor Vehicles 349k62 k. Probable or reasonable cause. Most Cited Cases Under the automobile exception to the Fourth Amendment warrant requirement, the commonwealth may satisfy its burden of showing that a warrantless search of a vehicle was valid by proving that officers had probable cause to believe that there was contraband in the vehicle. U.S.C.A. Const.Amend. 4. [4] Searches and Seizures 349 40.1

and driver of vehicle gave officer two small bags of marijuana, since possession of less than an ounce of marijuana had been decriminalized; absent articulable facts supporting a belief that either occupant of the vehicle possessed a criminal amount of marijuana, search was not justified 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)

349 Searches and Seizures 349I In General 349k40 Probable Cause 349k40.1 k. In general. Most Cited Cases The determination of probable cause supporting a warrantless search is objective, and focuses on whether the facts would warrant a reasonable person in believing the action taken to be appropriate. U.S.C.A. Const.Amend. 4. [5] Automobiles 48A 349.5(7)

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349.5 Search or Seizure Consequent to Arrest, Stop or Inquiry 48Ak349.5(5) Object, Product, Scope, and Conduct of Search or Inspection 48Ak349.5(7) k. Drugs and narcotics. Most Cited Cases Police officer did not have probable cause to conduct warrantless search of vehicle following traffic stop in which he smelled odor of freshly burned marijuana

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349.5 Search or Seizure Consequent to Arrest, Stop or Inquiry 48Ak349.5(5) Object, Product, Scope, and Conduct of Search or Inspection 48Ak349.5(10) k. Weapons; protective searches; pat-down. Most Cited Cases Concern for officer safety did not support police officer's warrantless weapons search of vehicle following traffic stop, based on late hour of stop, facts that occupants of vehicle outnumbered officer, passenger's hunched shoulders and furtive movements as officer approached, passenger's emptying his pockets when not specifically requested to do so, passenger's possession of a folding knife, and presence of a noncriminal amount of marijuana in vehicle; officer allowed occupants to move vehicle without first removing the knife, suggesting that occupants' movements and actions did not create a heightened awareness of danger, officer described occupants as compliant, and officer had no information to suggest that occupants were armed and dangerous. U.S.C.A. Const.Amend. 4; M.G.L.A. c. 94C, 32L. [7] Searches and Seizures 349 68

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 3

349 Searches and Seizures 349I In General 349k67 Weapons; Protective Searches 349k68 k. Vehicle searches. Most Cited Cases An officer who does not have probable cause to search an automobile for evidence of a crime or contraband may nonetheless conduct a limited search for weapons if a reasonably prudent man in his position would be warranted in the belief that the safety of the police of that of other persons was in danger. U.S.C.A. Const.Amend. 4. [8] Searches and Seizures 349 68

of the officer's conduct must be proportional to the degree of suspicion that prompted it. U.S.C.A. Const.Amend. 4. [10] Automobiles 48A 349.5(7)

349 Searches and Seizures 349I In General 349k67 Weapons; Protective Searches 349k68 k. Vehicle searches. Most Cited Cases A warrantless search of a vehicle for weapons based on concern for officer safety must be confined to the area from which the suspect might gain possession of a weapon' either because he is still within the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry. U.S.C.A. Const.Amend. 4. [9] Searches and Seizures 349 68

349 Searches and Seizures 349I In General 349k67 Weapons; Protective Searches 349k68 k. Vehicle searches. Most Cited Cases For purposes of determining validity of a warrantless search of a vehicle for weapons, while it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, the intrusiveness

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349.5 Search or Seizure Consequent to Arrest, Stop or Inquiry 48Ak349.5(5) Object, Product, Scope, and Conduct of Search or Inspection 48Ak349.5(7) k. Drugs and narcotics. Most Cited Cases Warrantless search of vehicle following traffic stop was not justified by concern that driver was operating under the influence of marijuana, where officer smelled the odor of burnt marijuana and recovered two small bags of marijuana from driver, who explained that the smell was the result of others using marijuana at a party; although officer was not required to credit driver's explanation, officer did not observe that driver's eyes were red or glassy, that her speech or movements were unusual, or that her responses to questioning were inappropriate or uncooperative, officer did not perform any tests to assess her physical and mental acuity, and officer instructed her to move her vehicle herself to allow traffic 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 Automobiles 48AVII Offenses 48AVII(A) In General 48Ak332 k. Driving while intoxicated. Most Cited Cases A driver may be found to have been under the influence when her consumption of alcohol or other substances diminished her

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 4

ability to operate a motor vehicle safely; although the commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner it must prove a diminished capacity to operate safely. M.G.L.A. c. 90, 24(1)(a)(1). [12] Automobiles 48A 332

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 Boston police officer for a motor vehicle infraction in the early morning hours of December 13, 2009. The interior of the vehicle smelled of burnt marijuana, and in response to a question from the officer, Tayetto, the driver, produced two small bags containing the substance. The officer searched the vehicle and found a handgun and ammunition in the glove box. Daniel and Tayetto were subsequently charged with several firearms offenses. **846 The defendants moved to suppress the evidence recovered from the vehicle. A Boston Municipal Court judge allowed the motions, and a single justice of this court allowed the Commonwealth's motion for leave to file an interlocutory appeal in the Appeals Court, pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the Boston Municipal Court judge's order that the evidence be suppressed, Commonwealth v. Daniel, 81 Mass.App.Ct. 306, 313316, 962 N.E.2d 213 (2012), and we granted Daniel's application for further appellate review. The Commonwealth argues that the motions to suppress should not have been allowed. The Commonwealth contends that the officer had probable cause to search the vehicle for contraband, and thus permissibly ordered both occupants from the vehicle, and also that the circumstances

48A Automobiles 48AVII Offenses 48AVII(A) In General 48Ak332 k. Driving while intoxicated. Most Cited Cases A court reads the statute prohibiting operation of a motor vehicle under the influence in light of the legislative purpose to protect the public from drivers whose judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies are diminished because of the consumption of alcohol or drugs. M.G.L.A. c. 90, 24(1)(a). [13] Automobiles 48A 349(6)

48A Automobiles 48AVII Offenses 48AVII(B) Prosecution 48Ak349 Arrest, Stop, or Inquiry; Bail or Deposit 48Ak349(2) Grounds 48Ak349(6) k. Intoxication. Most Cited Cases Erratic driving that violates the civil motor vehicle code may give rise to a reasonable suspicion that a driver is impaired, permitting an investigatory stop of a vehicle. U.S.C.A. Const.Amend. 4. **845 Timothy J. Brown, Committee for Public Counsel Services, for the defendant. Zachary M. Hillman, Assistant District Attorney (Benjamin R. Megrian, Assistant District Attorney, with him) for the Com-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 5

would have caused a reasonable officer to fear for his safety, thus permitting him to search the vehicle for weapons. In addition, the Commonwealth makes two claims not raised before the motion judge or in its brief before the Appeals Court: that the officer had probable cause to believe that Tayetto was operating a vehicle while under the influence of marijuana, in violation of G.L. c. 90, 24 (a ), and therefore it was permissible to search the vehicle for evidence of that crime; and that the search was permissible because the *748 officer had a responsibility to ensure that Tayetto did not consume any marijuana while operating a vehicle on the streets of the Commonwealth. We affirm the order allowing the motions to suppress. Background. Daniel and Tayetto were each charged with carrying a firearm without a license, G.L. c. 269, 10 (a ); receiving a firearm with a defaced serial number, G.L. c. 269, 11C; unlawful possession of ammunition, G.L. c. 269, 10 (h ); two counts of unlawful possession of a large capacity feeding device, G.L. c. 269, 10 (m ); and unlawful possession of a loaded firearm, G.L. c. 269, 10 (n ). Tayetto was also charged with three civil motor vehicle infractions. The Boston police officer who stopped the vehicle was the only witness at the hearing on the motions to suppress. The prosecutor questioned the officer about the circumstances under which he had stopped the vehicle, issued exit orders to the occupants, and searched the glove box. In a memorandum in opposition to the motions to suppress filed after the hearing, the prosecutor argued that, because of the presence of marijuana in the vehicle, the officer's search was permissible under the automobile exception to the warrant re-

quirement, and was further justified by the need to ensure officer safety. At no time did the prosecutor suggest that the search was justified because Tayetto was driving while under the influence of marijuana, and she was not charged with that offense. Nor did the prosecutor elicit testimony at the hearing which would have supported such a claim. After the motions to suppress were allowed, the prosecutor filed a motion requesting the judge supplement her findings to credit the officer's testimony in its entirety, and also to provide more detail concerning the order in which the officer performed the search and the procedure he used. The prosecutor also filed a motion for reconsideration that raised no new issues. The motion judge issued limited supplemental findings, among them that [t]he court believes the officer searched the car based on a hunch not substantiated by reasonable suspicion and/or articulable facts, and denied the motion for reconsideration. [1] Discussion. 1. Findings of fact. In reviewing a ruling on a motion to suppress, **847 we accept the judge's subsidiary findings *749 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, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). The judge stated that her findings were based on the credible testimony of the officer who made the stop. The judge stated explicitly, however, that she did not find credible the officer's testimony that he had a heightened awareness of danger during the stop. It is therefore not implicit in the judge's findings that she found the entirety of the officer's testimony credible. See Commonwealth v. Isai-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 6

ah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008) ( Appellate courts may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony). Rather, it is apparent that the judge credited only those portions of the testimony that were reflected in her findings and were relevant to the specific issues before her. We summarize the judge's findings. At approximately 3:40 A.M., the officer was patrolling the Dorchester section of Boston in a marked cruiser. He noticed a Toyota sport utility vehicle (SUV) traveling toward him with a nonfunctioning driver's side headlight. The SUV then made an abrupt left hand turn in front of his cruiser without using the directional signal. The officer turned right and followed the vehicle. He activated his blue emergency lights, and the driver of the SUV applied the brakes and made an abrupt stop in the middle of the left travel lane. The officer approached the passenger side of the vehicle and saw that Daniel, who was sitting in the passenger seat, had his head down and his shoulders were rocking back and forth. Daniel sat upright when the officer reached the window. The officer could smell the odor of freshly burnt marijuana. He asked the occupants if they knew anything about the smell, and they replied that they had been to a party where people were smoking. Upon the officer's request, Tayetto produced her driver's license. The officer then asked both occupants whether they had any marijuana in the vehicle. Tayetto produced two small bags from her clothes. The officer asked if there was more in the vehicle. The defendant re-

moved a passport, keys, *750 and a folding knife from his pockets and placed them on the dashboard, saying, this is all I got. The judge found that this behavior was significant to [the officer] because it was not common for someone to empty their pockets and that when they do it is because they are trying to conceal something. By that point, vehicles were stopped behind them on the road. The officer instructed Tayetto to move her vehicle to the side of the road, and she did so; he did not remove the marijuana or the knife from the vehicle, or order the defendant to get out of the vehicle. The officer also moved his cruiser to the side of the road, and then returned to the SUV and ordered Daniel out of his seat. He searched the defendant for drugs and weapons based on the smell of marijuana and his movements. The search did not yield any contraband, and the officer instructed Daniel to sit on the bumper of the cruiser. He then ordered Tayetto out of the vehicle, and searched her, after which he instructed her to sit on the steps of a nearby house. The officer briefly returned to his cruiser, then searched the glove box of the SUV, where he discovered a firearm. At that point, he called for backup. **848 2. Whether the search was permissible. These events followed the passage of St. 2008, c. 387, An Act establishing a sensible State marihuana policy (2008 initiative), which made possession of one ounce or less of marijuana a civil infraction, rather than a criminal one. See G.L. c. 94C, 32L 32N. See also Commonwealth v. Cruz, 459 Mass. 459, 460, 945 N.E.2d 899 (2011) (Cruz ). We held in Cruz, supra at 476, 945 N.E.2d 899, that, following the passage of the 2008 initiative, the smell of burnt marijuana alone

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 7

does not provide probable cause to believe that there is evidence of a specific crime or a criminal amount of contrabandi.e., more than one ounce of marijuanain a vehicle. [2][3][4] When police conduct a search of an automobile without first obtaining a search warrant, the Commonwealth bears the burden of proving the existence of both probable cause to believe that the automobile contained contraband and of exigent circumstances to justify proceeding without a warrant. Commonwealth v. Santiago, 410 Mass. 737, 744, 575 N.E.2d 350 (1991). Under the automobile exception to the warrant requirement, the Commonwealth may satisfy its burden by proving that officers had probable cause to *751 believe that there was contraband in the vehicle. Commonwealth v. Motta, 424 Mass. 117, 122, 676 N.E.2d 795 (1997). The determination of probable cause is objective, and focuses on whether the facts would warrant a reasonable person in believing 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 additional contraband. The Commonwealth contends that the officer had probable cause to search the vehicle for more marijuana based on Tayetto's production of two small bags from her pockets. Prior to the passage of the 2008 initiative, that would have been the case. See Commonwealth v. Garden, 451 Mass. 43, 48, 883 N.E.2d 905 (2008) (odor of marijuana alone can supply probable cause to believe that marijuana is nearby, and therefore probable cause to search for contraband). However, the statutory decriminalization of possession of small amounts of marijuana has affected aspects of related

criminal laws and, consequently, the law of search and seizure. See Cruz, supra at 475477, 945 N.E.2d 899. In Cruz, supra, the Commonwealth argued that if police have probable cause to believe that any amount of marijuana exists in a motor vehicle, even an amount not subject to criminal penalty, police may conduct a warrantless search based on their authority to search for contraband or evidence of a crime. See id. at 473474, 945 N.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 support probable cause to believe that a criminal amount of contraband may be found in a vehicle, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana. Cruz, supra at 475476, 945 N.E.2d 899. As we said, It is unreasonable for the police to spend time conducting warrantless searches for contraband when no specific facts suggest criminality. Id. at 477, 945 N.E.2d 899. See Commonwealth v. Keefner, 461 Mass. 507, 517518, 961 N.E.2d 1083 (2012) (observation that defendant had used marijuana, without any indication of his intent to distribute, did not justify warrantless search of his person). Here, Tayetto surrendered two small bags of marijuana at the request of the officer. Possession of the amount contained therein constituted a civil infraction, **849 not a criminal offense. As citizens, *752 we expect that if we commit a civil infraction we will pay a fine; we do not expect a significant intrusion into our privacy and liberty. Cruz, supra at 469 n. 16, 945 N.E.2d 899. Absent articulable facts supporting a belief that either occupant of the

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 8

vehicle possessed a criminal amount of marijuana, the search was not justified by the need to search for contraband. [6][7][8][9] b. Officer safety. The Commonwealth further argues that the officer could permissibly remove both occupants and search the interior of the vehicle in order to ensure his safety. An officer who does not have probable cause to search an automobile for evidence of a crime or contraband may nonetheless conduct a limited search for weapons if a reasonably prudent man in [his] position would be warranted in the belief that the safety of the police of that of other persons was in danger. Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). [T]he search must be confined to the area from which the suspect might gain possession of a weapon, either because he is still within the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry. Commonwealth v. Almeida, 373 Mass. 266, 272, 366 N.E.2d 756 (1977). While it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, Commonwealth v. Gonsalves, 429 Mass. 658, 664, 711 N.E.2d 108 (1999), the intrusiveness of the officer's conduct must be proportional to the degree of suspicion that prompted it. Commonwealth v. Torres, 433 Mass. 669, 672, 745 N.E.2d 945 (2001). See Commonwealth v. Silva, supra at 408, 318 N.E.2d 895 (The search is thus confined to what is minimally necessary to learn whether the suspect is armed and to disarm him once the weapon is discovered). Here, the officer ordered both occupants from the vehicle and searched their persons. Upon finding nothing, he then searched the interior of the vehicle, includ-

ing the glove box. The Commonwealth argues that a number of factors, in combination, would have justified an officer in the circumstance in conducting a limited search of the vehicle: the late hour; that the officer was outnumbered by the vehicle's occupants; Daniel's hunched shoulders and movement as the officer approached the vehicle; Daniel's emptying his pockets when not specifically requested to do so; and the presence of a noncriminal amount of marijuana. However, as the judge found, the officer's actions in allowing *753 the occupants to move the vehicle without first removing the knife from the dashboard suggest that the defendants' movements and actions, viewed by a trained officer on the scene, did not create a heightened awareness of danger. FN2 The officer was not familiar with the occupants before he stopped the vehicle, and described both as compliant. Tayetto produced identification upon request. Although we are mindful that officers must have latitude to ensure their safety, see Commonwealth v. Silva, supra at 407, 318 N.E.2d 895, here the search far exceeded what was necessary. FN2. The judge found that the officer had allowed Tayetto to move her vehicle from the middle of the road without removing Daniel's folding knife from the dashboard or Daniel from the vehicle, and left them while he moved his own cruiser. He did not call for backup until he discovered the firearm. It is not necessary to show that an individual police officer personally experienced fear, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger,

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 9

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 n. 7, 682 N.E.2d 586 (1997), but an officer's actions may suggest whether a suspect's movements appeared threatening to a trained eye. **850 The Commonwealth cites a number of cases in which an officer acted properly to ensure his safety, either by issuing exit orders or by searching the interior of a vehicle in response to suspicious movements by its occupants. In none of those cases, however, were there so few facts to support a heightened sense of danger. See, e.g., Commonwealth v. Torres, supra at 674, 745 N.E.2d 945 (observation of passengers bent over, suggesting they were concealing or retrieving weapon, justified heightened sense of danger when considered with fact that, when vehicle stopped, all doors flew open and one occupant immediately fled scene with backpack); Commonwealth v. Graham, 78 Mass.App.Ct. 127, 128130, 935 N.E.2d 370 (2010) (passenger reached in between console and seat during stop; driver locked glove box after retrieving registration; police knew at time that at least one occupant of vehicle had history of firearms violations; and officer noticed vehicle because people on sidewalk shr[a]nk back when it passed). See also Commonwealth v. Silva, supra at 408409, 318 N.E.2d 895 (question was close whether limited search of vehicle for weapons was permitted where passenger leaned down as if to place something under seat, and officer knew passenger previously had been arrested in company of individual carrying illegal weapon). Here, by contrast, where the officer had little, if any, information to *754 suggest that the occupants of the vehicle were armed or dangerous, his extensive search was not proportional to the

degree of suspicion that prompted it. See Commonwealth v. Torres, supra at 672, 745 N.E.2d 945. [10] c. Operating while under the influence. The Commonwealth argues for the first time before us that the officer's search of the vehicle was proper because he had probable cause to believe that the driver was operating while under the influence of marijuana, in violation of G.L. c. 90, 24 ( a ). If such probable cause existed, the officer properly could have removed the defendants from the vehicle and searched it for evidence pertaining to that crime. See Commonwealth v. Johnson, 461 Mass. 44, 49, 958 N.E.2d 25 (2011), quoting Commonwealth v. Antobenedetto, 366 Mass. 51, 55, 315 N.E.2d 530 (1974) (search justified even though defendant was not arrested for operating while under influence; [t]he issue of paramount importance is whether the police, prior to the commencement of a warrantless search, had probable cause to believe that they would find the instrumentality of a crime or evidence pertaining to a crime in the vehicle). The 2008 initiative, while decriminalizing possession of small quantities of marijuana, explicitly did not alter Massachusetts laws relating to operating while under the influence. FN3 See G.L. c. 94C, 32L. FN3. The statute specifies that [n]othing contained herein shall be construed to repeal or modify existing laws, ordinances or bylaws, regulations, personnel practices or policies concerning the operation of motor vehicles or other actions taken while under the influence of marihuana ..., possession of more than one ounce of marihuana ..., or selling, manufacturing or trafficking in marihuana.... G.L. c. 94C, 32L

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 10

. See Commonwealth v. Keefner, 461 Mass. 507, 510, 961 N.E.2d 1083 (2012). The Commonwealth did not raise this argument in its opposition to the motions to suppress, or in its motion for reconsideration, nor were any questions at the evidentiary hearing specifically focused on that issue.FN4 Nonetheless, the Commonwealth **851 asks that we extend our longstanding doctrine that [a]n appellate*755 court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997). The Commonwealth argues that we may reverse the judge's decision on a ground not advanced before the judge, on which the judge made no specific findings, and about which the defense had no opportunity to cross-examine the sole fact witness. FN4. Daniel's memorandum in support of his motion to suppress, filed following the first day of the hearing on the motion, addressed briefly whether the officer had reasonable suspicion that Tayetto was operating while under the influence, which would have been sufficient only to justify removing the driver, and not the defendant, a passenger, from the vehicle in order to conduct field sobriety tests. The Commonwealth's opposition did not address impairment or driving while under the influence. The only testimony elicited from the officer concerning Tayetto's appearance, comportment, or reactions was when the officer identified her in the court room and

when he agreed, on cross-examination, that the demeanor of both defendants had been compliant. Further, the Commonwealth's brief before the Appeals Court did not suggest that the search was justified by suspicion that Tayetto was operating while under the influence; that theory was suggested sua sponte by a justice of the Appeals Court during oral argument. In certain situations we may address claims raised for the first time on appeal, when such issues are fully briefed and of particular public importance, see, e.g., Costa v. Brait Bldrs. Corp., 463 Mass. 65, 70, 972 N.E.2d 449 (2012); however, we are particularly reluctant to do so where there are no factual findings directed to the theory now advanced.FN5 See Commonwealth v. Bettencourt, 447 Mass. 631, 633634, 856 N.E.2d 174 (2006) ( we need not consider an argument that urges reversal of a trial court's ruling when that argument is raised for the first time on appeal.... Trial judges cannot be expected to rule, and indeed should not, on theories not presented to them, and defendants cannot respond to arguments not made at the trial level). See also Commonwealth v. Silva, 440 Mass. 772, 781, 802 N.E.2d 535 (2004) (When a defendant attempts to raise a new issue after the completion of the hearing's evidentiary phase, the evidence on that issue is likely to be scant or nonexistent). FN5. The Appeals Court's decision relied on testimony not discussed in the judge's findings, and on extrapolations from those findings. The court held that, [w]hile it might have been preferable for [the of-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 11

ficer] first to have made detailed observations of Tayetto's eyes or conducted field tests for additional evidence that she was operating while under the influence of marijuana, his failure to do so is not fatal to the determination of probable cause. Commonwealth v. Daniel, 81 Mass.App.Ct. 306, 313, 962 N.E.2d 213 (2012). We disagree. Whether we characterize Tayetto's unsignaled turn and what the judge described as an abrupt stop as erratic or dangerous driving, without findings as to the driver's appearance and reactions, poor driving alone in these circumstances will not provide probable cause to believe a driver is operating while under the influence of alcohol or drugs. [11][12] Even were we to consider the entirety of the officer's testimony, *756 and not only those of his statements specifically credited by the motion judge, that testimony would not warrant a prudent person in believing that Tayetto was operating while under the influence of marijuana. 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, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980). A person violates G.L. c. 90, 24(1) (a ) (1), when she operates a motor vehicle ... while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances. A **852 driver may be found to have been under the influence when her consumption 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). Although the Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner ... it must prove a diminished capacity to operate safely. Id. We read the statute in light of the legislative purpose to protect the public from drivers whose judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies are diminished because of the consumption of alcohol or drugs. Id. at 172173, 474 N.E.2d 1106. See Commonwealth v. Brooks, 366 Mass. 423, 427, 319 N.E.2d 901 (1974). [13] Erratic driving that violates the civil motor vehicle code may give rise to a reasonable suspicion that a driver is impaired, permitting an investigatory stop. Commonwealth v. Smigliano, 427 Mass. 490, 493, 694 N.E.2d 341 (1998). However, after the officer in this case made the stop, he did not observe anything about the driver that would lead a reasonable observer to believe that her capacity to operate a vehicle was impaired by the use of marijuana. Here, the officer smelled the odor of burnt marijuana and recovered two small bags of it from Tayetto, who explained that the smell was the result of others using marijuana at a party. While the officer was not required to credit this explanation, the Commonwealth elicited no testimony that Tayetto showed any signs of impairment during their encounter. The officer did not testify that Tayetto's eyes were red or glassy, that her speech or movements were unusual, or that her responses to questioning were inappropriate or uncooperative. FN6 He did not perform any *757 tests to assess her physical and mental acuity. Indeed, he instructed her to move her vehicle herself to allow traffic to pass. In short,

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 12

there was no indication that her judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies [were] diminished by the consumption of marijuana. Commonwealth v. Connolly, supra at 172173, 474 N.E.2d 1106. FN6. Manifestations of impairment may differ between subjects who are under the influence of liquor and those who are under the influence of marijuana, depressants, or stimulant substances. Compare Commonwealth v. Reynolds, 67 Mass.App.Ct. 215, 219, 852 N.E.2d 1124 (2006) (following motor vehicle accident in which driver hit and killed child on bicycle, during which vehicle flipped over but driver was uninjured, driver taking depressant drugs was unusually subdued given circumstances); Commonwealth v. Butterfield, 44 Mass.App.Ct. 926, 926, 691 N.E.2d 975 (1998) (driver who ingested alcohol had red eyes, slurred speech, and lack of balance, and exhibited belligerent behavior). Cf. Commonwealth v. Smola, 69 Mass.App.Ct. 1113, 2007 WL 2163991 (2007) (driver under influence of marijuana had crab-like sideways walk; red, bloodshot eyes; and dazed look). d. Duty to ensure public safety. The Commonwealth argues that, notwithstanding the officer's lack of probable cause to search the vehicle, he was duty-bound to conduct the search to ensure that the occupants would not smoke marijuana while driving. This argument is based largely on the assumption, unsupported in the findings, that Tayetto had ingested marijuana before driving or while driving prior to the police stop. See Commonwealth v. Betten-

court, supra (declining to consider community caretaker rationale for search when raised for first time on appeal). We decline to consider this rationale, which was not argued below and not supported by the findings of the motion judge. **853 Order allowing motions to suppress affirmed. Mass.,2013. Com. v. Daniel 464 Mass. 746, 985 N.E.2d 843 Briefs and Other Related Documents (Back to top) SJC-11214 (Docket) (May 16, 2012)

Judges and Attorneys(Back to top) Judges Judges Duffly, Hon. Fernande R.V. Commonwealth of Massachusetts Supreme Judicial Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler Gants, Hon. Ralph Dreyfus Commonwealth of Massachusetts Supreme Judicial Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler Ireland, Hon. Roderick L. Commonwealth of Massachusetts Supreme Judicial Court Boston, Massachusetts 02108 Litigation History Report | Judicial Re-

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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

Page 13

versal Report | Judicial Expert Challenge Report | Profiler Lenk, Hon. Barbara A. Commonwealth of Massachusetts Supreme Judicial Court Boston, Massachusetts 02108 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler Lyons, Hon. Tracy-Lee Commonwealth of Massachusetts Boston Municipal Court Department, Brighton Division Brighton, Massachusetts 02135 Litigation History Report | Judicial Reversal Report | Profiler END OF DOCUMENT

2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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 by 2 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. SJC11214) 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 Appeal 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, 45 A.L.R.3d 581 (1972) HN: 6 (N.E.2d) 10 Constitutional Rights of the Accused s 4:41, Exceptions to the warrant requirement-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

2013 Thomson Reuters. All rights reserved.

(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 requirement (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, Defendant-Appellant., 2013 WL 5425601, *1+ (Appellate Brief) (7th Cir. Sep 16, 2013) Brief in Support of Motion to Withdraw as Defendant's Appointed Appellate Counsel Pursuant to Anders v. California, 386 U.S. 738 (1967), and Short 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., 2013 WL 4737305, *1+ (Appellate Brief) (Mass. May 17, 2013) Brief for the Commonwealth (NO. SJC-11281) 28 COMMONWEALTH, Appellee, v. John C. DEPIERO, Appellant., 2013 WL 6002798, *1+ (Appellate Brief) (Mass.App.Ct. Oct 24, 2013) Reply Brief and Supplemental Record Appendix for the Defendant (NO. 2013-P-0572) 29 COMMONWEALTH, Appellee, v. Dolores G. PAINE, Appellant., 2013 WL

2013 Thomson Reuters. All rights reserved.

5666441, *1+ (Appellate Brief) (Mass.App.Ct. Oct 2013) Brief for the Commonwealth (NO. 2013-P-0229) 30 COMMONWEALTH, Appellee, v. Jose VENTURA, Appellant., 2013 WL 5506284, *1+ (Appellate Brief) (Mass.App.Ct. Sep 18, 2013) Brief and Supplemental Record Appendix for the Commonwealth (NO. 2013-P-725) " HN: 4 (N.E.2d) 31 COMMONWEALTH, Plaintiff-Appellee, v. Ara MARTIROSSIAN, DefendantAppellant., 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 the Defendant on Appeal from the Quincy District Court (NO. 2013-P-0038) " HN: 5,10 (N.E.2d) 33 COMMONWEALTH, Appellee, v. William BRIGHTMAN, Defendant-Appellant., 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., 2013 WL 2492990, *1+ (Appellate Brief) (Mass.App.Ct. May 22, 2013) Reply Brief of 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 WL 5590175, *1+ (Appellate Brief) (Mass.App.Ct. 2013) Brief and Record Appendix 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)

2013 Thomson Reuters. All rights reserved.