RI Lawyer Wins Landmark Marijuana Case in the Massachusetts Supreme Judicial Court

Criminal Defense Lawyer John L. Calcagni, III

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On September 22, 2015, the Massachusetts Supreme Judicial Court handed down a landmark decision in the matter of Commonwealth v. Elivette Rodriguez, holding that the odor of marijuana alone is not a sufficient basis for police to conduct a motor vehicle stop. This decision came after a nearly three-year legal battle during which Attorney John L. Calcagni III, counsel for Elivette Rodriguez, challenged the stop of her vehicle by police that led to drug trafficking charges.

On April 26, 2012, police were conducting surveillance into alleged drug trafficking activities in the City of New Bedford. A motor vehicle formerly owned and registered to a drug trafficker became a target of the surveillance. Police observed this vehicle stop at a home, which had been the subject of narcotics raids in the past. While under surveillance, police noted that the vehicle was initially occupied by three passengers: a driver in the front and two others in the rear passenger seat. The vehicle, a Mercedes-Benz sports utility vehicle, came to a stop in front of the house. One passenger then exited the vehicle and entered the house. As the surveillance continued, the law enforcement officer in charge of the surveillance operation directed other officers to stop the vehicle in question upon the passenger’s return and the vehicle’s departure. Subordinate police officers followed this command. Moments later, the vehicle pulled off with all three passengers inside. Without observing any criminal conduct whatsoever or even a motor vehicle infraction, a police officer initiated a stop of the vehicle. As grounds, he claimed that he detected an odor of marijuana emanating from the vehicle. This officer, after bringing the vehicle to a stop, approached the vehicle and observed the driver to be smoking a marijuana cigarette. From this vantage point, officers on scene also reported to observing a white substance, later seized and identified as unlawful prescription pills, in plain view on the backseat of the vehicle. Based on this discovery, police arrested the passengers of the vehicle, which included Elivette Rodriguez and her brother. Both siblings were charged with Drug Trafficking, Drug Conspiracy and Committing Drug Offenses Near a School or Park, which is colloquially referred to as a “school zone violation” and carries a mandatory jail sentence.

In defense of these siblings, Attorney Calcagni launched an initial attack on the case by filing a motion to suppress on November 30, 2012. This motion challenged the lawfulness of the motor vehicle stop, claiming that such was in violation of the siblings’ constitutional rights against unwarranted and unreasonable searches and seizures. If successful, the discovered drugs would be excluded from evidence in the case, resulting in a dismissal. The trial court conducted a full evidentiary hearing on the matter on May 3, 2013. The sole focus of the hearing was the legality of the motor vehicle stop. On May 21, 2013, the trial court issued a decision denying Defendant’s motion. In response, Attorney Calcagni filed an application seeking permission to file an interlocutory appeal of this adverse decision. On July 7, 2013, the Massachusetts Supreme Judicial Court granted this application thereby allowing the Defense to proceed with an interlocutory appeal. While the appeal was pending, the trial court prosecutions of the siblings were stayed or placed on hold. The parties submitted their briefs, or written submissions, to the Supreme Judicial Court in the early winter of 2015. The Court then held oral arguments on March 5, 2015.

Attorney Calcagni challenged the motor vehicle stop on appeal claiming that under Massachusetts law, and in particular, the decriminalization of marijuana, the police stopped Ms. Rodriguez and her fellow passengers based on the suspicion of a civil infraction – smoking marijuana, as suspected from the odor detected by the arresting officer. Since marijuana was decriminalized in Massachusetts, possession of 1 ounce or less of the substance is considered a civil infraction subject to a $100 fine. Possession of this quantity is no longer a criminal offense. Attorney argued to the Massachusetts High Court that the police had no direct knowledge or information that the vehicle or its passengers in this case possessed marijuana, and if so, in what quantity. Absent this information, Attorney Calcagni argued that the police solely suspected the presence of marijuana due to odor, not an amount arising to criminal conduct. Constitutionally, police may not effectuate motor vehicle stop based on the suspicion of civil or infractionary conduct, which is all they had in this particular case. The Commonwealth responded that the police need to conduct stops in instances such as this in order to enforce the marijuana decriminalization statute. The Commonwealth asked the High Court to analogize this stop with one to enforce a traffic or motor vehicle infraction. Attorney Calcagni, anticipating this argument, indicated under Massachusetts law, there is specific statutory authority for traffic stops only when the motor vehicle infraction is observed, or otherwise known. Here, the infraction, while unlike traffic stops justified on grounds of observation and public safety, involved suspicion, not actual knowledge or observation of the presence of marijuana.

In conclusion, the Supreme Judicial Court adopted Attorney Calcagni’s arguments and position. As a result, the High Court came full circle regarding the impact of the marijuana decriminalization statute on the constitutional and criminal procedure legal landscapes in Massachusetts. The odor of marijuana alone is no longer a sufficient basis for police to conduct a search, order a motorist or passenger to exit from a vehicle, and now, to make a traffic stop. In light of the High Court’s ruling, Ms. Elivette’s criminal prosecution will be dismissed.