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Commonwealth v. Long

Supreme Judicial Court of Massachusetts, Hampshire

August 12, 2019


          Heard: April 2, 2019.

          Complaint received and sworn to in the Eastern Hampshire Division of the District Court Department on October 18, 2017. A pretrial motion to suppress evidence was considered by Michele Ouimet-Rooke, J., and a question of law was reported by her to the Appeals Court.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Luke Ryan for the defendant.

          Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         This matter concerns the search of a warehouse, pursuant to a search warrant that was issued, in part, based on the odor of unburnt marijuana. Before the District Court judge had issued a decision on the defendant's motion to suppress due to a lack of probable cause to issue the warrant, the parties requested that the judge report a question to the Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). The judge allowed the request and reported the question as the parties had phrased it. We transferred the appeal to this court on our own motion. We conclude that the warrant affidavit supported a finding of probable cause to search the commercial building for evidence of illegal marijuana cultivation.

         1. Background.

         We recite the facts set forth in the warrant affidavit. On October 17, 2017, Amherst police officers Dominic Corsetti and Lindsay Carroll were on patrol in their police cruiser at approximately 6:30 P.M. They noticed two automobiles parked at one end of a windowless warehouse building, at the far end away from the driveway. No other vehicles were in the parking lot. The building was in a rural area with no nearby neighbors, surrounded by fields to the west and trees and brush to the north and east. Multiple active surveillance cameras were mounted on the exterior of the building. Deeming the placement of the vehicles to be suspicious, the officers undertook a check of the registrations. They learned that the owner of one vehicle, a Toyota Tundra pickup truck with a Massachusetts registration, had a number of convictions of possession of marijuana and possession of marijuana with intent to distribute, over a period of almost twenty years, beginning in the late 1990s.

         The officers got out of their cruiser and walked around the building, along a narrow strip of grass that separated the building from the woods to the north and east. The approximately 11, 000 square foot warehouse was primarily constructed of cinder blocks that measured eight inches by sixteen inches on their face and eight inches thick.[1] The warehouse's ordinary ventilation vents appeared to have been blocked by plywood from the interior of the building. At the same time, polymer (PVC) exhaust or ventilation pipes, extending through the cinder block walls, appeared to have been recently mortared into place.

         Detective Gregory Wise of the Amherst police department arrived to assist in the investigation. Wise had received specialized training in narcotics investigations, and he was familiar with methods utilized to cultivate and harvest marijuana. The officers established a perimeter around the warehouse. Wise observed that "[u]pon walking around the circumference of the building it should be noted that the overwhelming odor of unburnt fresh marijuana was present and appeared to be coming from the inside of the building." The officers also observed that a padlock on the door to a smaller, attached building had been broken, and there were pry marks on the door. The interior of that building held many empty bottles of a cleaning solvent.

         The officers were able to contact the owner of the building, who was located in another State. He told the police that he had rented the building to the defendant. The owner's son arrived on scene and said that three or four individuals had been leasing the warehouse for the past year. The tenants paid approximately $4, 000 per month; the son did not know the nature of their business.

         The police checked the records of "the Medical Marijuana System" and determined that neither the defendant nor the registered owner of the Toyota had a medical marijuana card or was authorized to grow marijuana pursuant to a hardship marijuana cultivation license. A check of the defendant's criminal record indicated that it contained six entries, including possession of marijuana in 2004, 1989, and 1988.

         One of the officers noted a light coming from around the door of a garage that was attached to the other side of the warehouse and knocked on the door, but received no response. Looking through one of the cracks in the door panels, he saw another vehicle and an individual leaving the garage and entering the main warehouse.

         Officers secured the area while another officer went to obtain a search warrant. Upon executing the warrant, police found, and seized, among other items, United States currency, equipment used to cultivate marijuana, and at least fifty pounds of marijuana. The defendant was placed under arrest for trafficking in fifty pounds or more of marijuana, in violation of G. L. c. 94C, § 32E (a).

         The defendant moved to suppress the evidence seized pursuant to the search warrant, on the ground of a lack of probable cause. He argued that, using only their sense of smell, the police were unable to exclude the possibility that the odor emanating from the windowless, 11, 000 square foot, ...

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