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Commonwealth v. Locke

Appeals Court of Massachusetts, Worcester

June 7, 2016

ANDREW K. LOCKE (and a companion case[1]).

          February 4, 2016.

         Complaints received and sworn to in the Dudley Division of the District Court Department on December 19, 2011. Pretrial motions to suppress evidence were heard by Gerald A. Lemire, J., and motions for reconsideration were considered by him.

         An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

          Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

          Barry A. Bachrach for Andrew K. Locke.

          Sean J. Gallagher for Tanik S. Kerr.

          Present: Cypher, Wolohojian, & Neyman, JJ.

          CYPHER, J.

         Complaints issued in the District Court charging the defendants, Andrew K. Locke and Tanik S. Kerr, with trafficking in fifty pounds or more of marijuana, G. L. c. 94C, § 32E(a), and conspiracy to traffic in marijuana, G. L. c. 94C, § 40.[2] The Commonwealth appeals from the allowance of the defendants' motions to suppress evidence and from the denials of its motions for reconsideration, arguing that the judge committed legal error when he concluded that "the odor of marijuana does not constitute reasonable suspicion of criminal activity or probable cause to believe that more than one ounce of marijuana" was present in the defendants' vehicle. We are constrained to affirm the orders of suppression. See Commonwealth v. Cruz, 459 Mass. 459, 472 (2011) (Cruz); Commonwealth v. Overmyer, 469 Mass. 16, 17 (2014) (Overmyer); Commonwealth v. Craan, 469 Mass. 24 (2014) (Craan).

         We summarize the facts found by the judge after an evidentiary hearing, at which State police Troopers Scott Driscoll and Christopher Coscia both testified, supplemented by uncontested facts in the record. Craan, supra at 26. On December 17, 2011, Trooper Driscoll saw a white minivan make an erratic lane change on Route 84 in Sturbridge, nearly causing a collision. Trooper Driscoll continued to watch the minivan and clocked it in excess of the posted speed limits as it approached the tollbooths on Route 84. After the minivan passed through the tollbooth, Trooper Driscoll stopped the minivan. He did not see any furtive movements, no one attempted to flee, and he did not know how many people were in the minivan because the windows were tinted and had interior shades that were pulled down.

         Trooper Driscoll approached the minivan on the passenger side. He spoke through the open window and explained the reason for the stop. He immediately detected the odor of unburned marijuana.[3] Locke, who was in the driver's seat, appeared nervous, his chest was heaving, and he talked excessively. The passenger, Kerr, sat quietly and stared straight ahead. Trooper Driscoll asked Locke for his driver's license and registration. Locke produced an Arizona driver's license and a rental contract in the name of "Robert Spinks." The rental contract indicated that the minivan had been rented two days earlier in Rhode Island. Locke explained that Robert Spinks was his uncle and that Locke was visiting Spinks in Connecticut and had borrowed the minivan from him so that he could visit his daughter in the Mattapan section of Boston. Trooper Driscoll asked Locke if he was an authorized driver on the rental agreement, but Locke did not know.[4]

         Trooper Driscoll noticed several air fresheners in the minivan in various locations. Trooper Driscoll knew from his training and experience that air fresheners are often used to mask the odor of narcotics in a vehicle. Trooper Driscoll asked Kerr his name; Kerr told him his name and said that he was also from Arizona, but that he did not have a license or an identification card with him.

         Trooper Driscoll returned to his cruiser with the documents Locke had given him and called for backup. Trooper Scott Shea arrived several minutes later, and Driscoll instructed him to call for a drug-detection canine unit.

         Trooper Driscoll went to the driver's side of the minivan and asked Locke to step out of the vehicle and pat frisked him for the trooper's own safety. He did not find anything. Trooper Driscoll explained to Locke that he was concerned because Locke was driving a rental vehicle but his name was not on the rental contract as an authorized driver and that there was an odor of marijuana. Trooper Driscoll explained the law regarding possession of marijuana and asked him if he was in possession of any marijuana or if he had smoked marijuana earlier that day in the minivan. Locke stated that he was not in possession of marijuana but that he and Kerr had smoked some earlier in the day. Trooper Driscoll told him that he had a canine unit several minutes away and that he was going to have the dog sniff the minivan. Trooper Driscoll had Locke sit in the back of his cruiser for the sake of the troopers' safety. He was not handcuffed.

         Troopers Driscoll and Shea then approached the passenger side of the minivan and asked Kerr to step out. Trooper Driscoll pat frisked Kerr and felt a semisolid bulge or bundle in his jacket. He asked Kerr what it was, and Kerr said it was cash. At Trooper Driscoll's request, he showed Driscoll the cash and said that it was about $3, 500 that his sister had given him for Christmas shopping. Trooper Driscoll asked Kerr about the odor of marijuana, and Kerr denied that there was an odor of marijuana coming from the minivan. He also denied that he ...

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