Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures. Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity. In Commonwealth v. Cruz, a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L). The court held that the odor of burnt marijuana alone is no longer sufficient to establish reasonable suspicion of criminal activity and, accordingly, an exit order is impermissible.
On June 24, 2009, in a high-crime area of Boston, two patrolling police officers pulled up beside a vehicle parked in front of a fire hydrant. The defendant, Benjamin Cruz, was seated on the passenger side of the vehicle, and an unidentified person was in the driver’s seat. When the officers approached the vehicle, they could smell a “faint odor” of burnt marijuana. The officers testified that both occupants appeared nervous, and the driver admitted he had smoked marijuana “earlier in the day.” The officers ordered the occupants out of the vehicle and asked Cruz if he had anything in his possession; Cruz replied he had “a little rock for [him]self” in his pocket, which the officers retrieved. . .