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Appeals Court of Massachusetts.



Decided: February 19, 2021

By the Court (Neyman, Shin & Singh, JJ.1)


The defendant was convicted after a jury-waived trial of trafficking in heroin over eighteen grams and possession of fentanyl with intent to distribute. On appeal the defendant challenges the denial of her motion to suppress evidence recovered during a stop and search of her car. We affirm.

Background. We summarize the motion judge's factual findings, supplemented with uncontroverted testimony that she credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

Around 5:10 p.m. on July 12, 2017, Massachusetts State Trooper William McSweeney saw a car with heavily tinted windows traveling on Interstate Highway 93 near Randolph. McSweeney followed the car and watched as it crossed over the white line into the breakdown lane at least two times. He turned on his cruiser lights, and the car pulled over without incident.

As McSweeney approached the car on the passenger side, the window lowered, and “a big cloud of smoke came out from the side passenger compartment.” Based on his training and experience, McSweeney recognized the odor as that of recently burnt marijuana. McSweeney waited for around thirty seconds for the smoke to clear so that he could see inside the car. He then observed a sole occupant, later identified as the defendant, in the driver's seat.

McSweeney asked the defendant for her driver's license and registration, but the defendant replied that she did not have a license. Eventually, she produced an identification card from the Dominican Republic and a United States passport. McSweeney, who did not speak Spanish, did not know if the identification card was a driver's license. When McSweeney asked the defendant for a Massachusetts license, she stated that she did not have one and explained that she lived in the Dominican Republic and was in the United States visiting her sister. McSweeney ran a check through the registry of motor vehicles and confirmed that the defendant did not have a Massachusetts license.

At this point McSweeney ordered the defendant out of the car and administered Miranda warnings. Once the defendant stated that she understood her rights, McSweeney asked if there was anything illegal in the car that he should know about. The defendant replied, “[N]ot that I know about, you can look.” McSweeney then searched the car and recovered from inside some luggage two “corner twists” containing what he believed to be heroin, a scale, and some glassine bags. When McSweeney asked the defendant if she knew anything about the heroin, she said, “Can I be honest with you? My friend's boyfriend was driving the car, and he got arrested for drugs. They told me to be careful driving, because they know I don't have a license.”

The defendant was placed under arrest and transported to the State Police barracks. During booking the defendant indicated that she had drugs on her person and removed a bag containing drugs from her underwear. An inventory search of the defendant's car yielded another bag of drugs, an iPhone, and around $400 in cash.

Discussion. On review of a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The defendant argues on appeal that the judge should have allowed her motion to suppress because the exit order issued by McSweeney was not supported by reasonable suspicion that the defendant was engaged in criminal activity.2 We disagree.

Police may permissibly issue an exit order during a traffic stop in three situations, including when they “have reasonable suspicion of criminal activity.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). Here, we conclude that the exit order was justified by reasonable suspicion that the defendant was operating her vehicle while under the influence of marijuana.3 See Commonwealth v. Davis, 481 Mass. 210, 216 (2019), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) (“A driver operates a motor vehicle while under the influence when the consumption of an intoxicating substance such as alcohol or marijuana diminishes his or her ‘ability to operate a motor vehicle safely’ ”). Prior to the stop, McSweeney saw the defendant's car drift in and out of the breakdown lane at least twice. He then observed a large amount of smoke from recently burnt marijuana in the passenger compartment of the car. The smoke was so thick that McSweeney could not see who was inside the car for thirty seconds as the smoke cleared. Based on his observations, McSweeney could have inferred that the defendant -- the car's sole occupant -- was actively smoking marijuana while driving on a major highway. These specific and articulable facts gave rise to a reasonable suspicion that the defendant was operating under the influence, justifying the exit order. See Commonwealth v. Perachio, 61 Mass. App. Ct. 591, 593-594 (2004) (reasonable suspicion that defendant was operating under influence where officer had observed him one hour earlier in police station smelling of alcohol and showing signs of intoxication). Cf. Davis, supra at 216-217 (probable cause to believe that defendant was operating under influence based on police observations of erratic driving, odor of burnt and unburnt marijuana, red and glassy eyes, slow coordination, and difficulty following instructions).

The defendant argues in the alternative that, even if McSweeney reasonably suspected that she was operating under the influence, he took no steps to confirm or dispel his suspicion and therefore unlawfully prolonged the stop. But given his observations of the marijuana smoke in the car, McSweeney did not impermissibly expand the scope of the stop by asking the defendant whether there was anything illegal in the car that he should be aware of. See Commonwealth v. Buckley, 478 Mass. 861, 874-875 (2018); Commonwealth v. Cruz, 459 Mass. 459, 466 (2011). And in response to his question, the defendant “affirmatively offered the search.” Buckley, supra at 875-876. As the defendant makes no contention that her consent was involuntary, we conclude that the motion to suppress was correctly denied.4

Judgments affirmed.


2.   The defendant does not renew her argument, made to the judge, that her consent to search the car was involuntary.

3.   Although the defendant claims that McSweeney issued the exit order for the sole purpose of arresting the defendant for operating without a license and did not actually suspect that she was operating under the influence, McSweeney's subjective belief is immaterial because reasonable suspicion is measured from the vantage point of an objectively reasonable officer. See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000); Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998). In any event, the record is unclear as to what McSweeney believed, and the motion judge made no findings on that point.

4.   Given our ruling, we need not address whether the exit order was justified by reasonable suspicion that the defendant was operating without a license.

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