February 4, 2016.
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.
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.
H. Lazar-Moore, Assistant District Attorney, for the
A. Bachrach for Andrew K. Locke.
J. Gallagher for Tanik S. Kerr.
Present: Cypher, Wolohojian, & Neyman, JJ.
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, §
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)
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.
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. 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.
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.
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.
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.
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 ...