It is well established that “Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.”  Commonwealth v. Gouse, 461 Mass. 787 (2012). Likewise, “When a search is conducted without a warrant, the burden is on the Commonwealth to show that the search ‘falls within a narrow class of permissible exceptions’ to the warrant requirement.”  Commonwealth v. Perkins, 465 Mass. 600 (2013), quoting Commonwealth v. Antobenedetto, 366 Mass. 51 (1974).

One major exception to the warrant requirement is commonly referred to as the “automobile exception” (although it applies to any to any vehicle, including boats), pursuant to which a warrantless search of an automobile is constitutionally permissible if the Commonwealth proves that officers had probable cause to believe that there was contraband or specific evidence of a crime in the vehicle.  See Commonwealth v. Daniel, 464 Mass. 746 (2013);  Commonwealth v. Motta, 424 Mass. 117 (1997).  This exception is based upon the mobility of vehicles and the impracticality of obtaining a warrant before the vehicle can be driven away.

Three years ago, in the wake of the 2008 ballot initiative decriminalizing possession of one ounce or less of marijuana, the Massachusetts Supreme Judicial Court ruled that “the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity” and, therefore, does not constitute probable cause to believe that a vehicle contains a criminal amount of contraband or specific evidence of a crime such that the automobile exception to the warrant requirement may be invoked. Commonwealth v. Cruz, 459 Mass. 459 (2011)(emphasis added).  In other words, because the 2008 initiative reclassified possession of one ounce or less of marijuana as a civil violation and abolished the attendant criminal consequences, the police cannot search a vehicle based on the smell of burnt marijuana alone because such a smell points only to the presence of some marijuana, not necessarily a criminal amount.

In a ruling issued today, Commonwealth v. Overmyer (SJC-11481), the SJC expanded this ruling to include the smell of unburnt marijuana.  While recognizing that “…the odor of unburnt, rather than burnt, marijuana could be more consistent with the presence of larger quantities,” the court nonetheless concluded that “… it does not follow that such an odor reliably predicts the presence of a criminal amount of the substance, that is, more than one ounce, as would be necessary to constitute probable cause.”  See Commonwealth v. Antobenedetto, 366 Mass. 51 (1974) (“The foundation of probable cause must be specific data, the reliability of which could be judged by a magistrate”).  In the absence of such reliability, “a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana,” whether burnt or unburnt.  The court left the door open to reconsideration of this decision under different facts, stating that “Although it is possible that training may overcome the deficiencies inherent in smell as a gauge of the weight of marijuana present, … there is no evidence that the officers here had undergone specialized training that, if effective, would allow them reliably to discern, by odor, not only the presence and identity of a controlled substance, but also its weight.”

This ruling may result in police officers focusing more on obtaining damaging admissions from the suspect through questioning (respectfully decline), as well as on obtaining a suspect’s consent to search the vehicle (respectfully refuse), both of which may lead to facts sufficient for a finding of probable cause and, in the context of the “automobile exception” to the warrant requirement, justify a warrantless search of the vehicle and, possibly, an arrest.

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      Flat Fee

      A flat fee is a set amount of money that is decided upon at the beginning of the representation, before any work is done on the case. This type of agreement is generally used for certain criminal offenses or in situations that require a limited number of court appearances.

      Hourly Rate

      To state the obvious, in an hourly case, the fee you pay is calculated by multiplying the hourly rate by the number of hours the attorney spends working on your case. Hourly rate agreements are generally used in serious criminal matters, civil defense (representation of an individual or company being sued in Civil court) and certain plaintiff cases (representation of an individual or business suing someone else in Civil Court). The hourly rate and the required retainer will vary depending on type and complexity of the case.

      Contingency Fee 

      A contingency fee agreement is standard in personal injury matters (where an individual brings claims in Civil court for his or her personal injuries) and may also be used in certain other types of plaintiff cases.  The fee your attorney earns is, as the name suggests, contingent upon there being a monetary recovery in your case and there is no fee due unless we win your case.   A fairly standard percentage for a contingent fees is one-third of the total recovery.   These types of agreements are not ethically permitted in criminal cases.

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Please include in your message a short statement of the reason for contacting the office, as well as the best method and time to contact you. Attorney Berman will return your message promptly to learn more about your case and, if appropriate, schedule an initial consultation.