COMMONWEALTH vs. ELIVETTE RODRIGUEZ.

BOTSFORD, J. This case, in which the defendant appeals from the denial of her motion to suppress, centers on a motor vehicle stop based on a police officer's detection of an odor of burnt marijuana coming from the vehicle. It requires us to evaluate further the impact of G. L. c. 94C, §§ 32L-32N, inserted by St. 2008, c. 387,

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§§ 2-4, which decriminalized possession of one ounce or less of marijuana. For the reasons discussed hereafter, we conclude that at least in a stop such as this one, where there was at best reasonable suspicion to believe that a civil marijuana infraction was occurring, but not probable cause, the stop was impermissible. Accordingly, the order denying the defendant's motion to suppress must be reversed.

1. Background. To provide context, we summarize the evidence presented at the hearing on the defendant's motion to suppress. [Note 1] On the evening of April 26, 2012, Detective Daniel Amaral of the New Bedford police department was driving an unmarked police cruiser assisting a narcotics surveillance team of police officers when he came upon a motor vehicle that he had stopped once before. During the earlier stop, Amaral had arrested the woman who normally drove that vehicle for heroin possession. He knew that the surveillance team was interested in the vehicle because of its connection to the earlier drug-related arrest. Accordingly, he followed the vehicle and thereafter received instruction from the surveillance team to pull it over. [Note 2]

As Amaral followed the vehicle, he detected an odor of burnt marijuana coming from it. [Note 3] Based on the odor, and without having seen the driver of the vehicle commit any traffic violations, Amaral pulled the vehicle over and approached the driver's side. The driver, a male, held in his right hand what Amaral recognized as a marijuana cigar. Amaral asked the driver whether the cigar was what was causing the odor, and the driver responded that it was. Amaral then confiscated the cigar and asked for the driver's

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license and registration. The stop continued, and in the course of it, police discovered a plastic bag in the vehicle containing sixty Percocet pills. [Note 4] The defendant, a passenger in the vehicle at the time of the stop, was charged with possession with intent to distribute a class B substance in violation of G. L. c. 94C, § 32A (a), [Note 5] conspiracy to violate the drugs laws under G. L. c. 94C, § 40, and a drug violation near a school or park under G. L. c. 94C, § 32J -- all in connection with the pills.

On November 30, 2012, the defendant moved to suppress evidence of the pills. The motion judge held an evidentiary hearing on May 3, 2013; the only issue addressed was the propriety of the motor vehicle stop. Following the hearing, the judge concluded that the odor of burnt marijuana, coupled with other "suspicious activity implicating but not rising to drug activity" involving the vehicle, justified the stop. A single justice of this court granted the defendant's request for leave to pursue an interlocutory appeal of the order denying the motion to suppress, and directed the appeal to be heard in the Appeals Court. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996); G. L. c. 211, § 4A. We transferred the case from the Appeals Court on our own motion.

2. Discussion. "When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). See Commonwealth v. Craan, 469 Mass. 24, 26 (2014).

In 2008, as a result of an initiative petition adopted by the voters, possession of one ounce or less of marijuana changed from being a criminal to a civil offense in the Commonwealth. See G. L. c. 94C, §§ 32L-32N. See also Commonwealth v. Cruz, 459 Mass. 459, 470 (2011). As a consequence of the change, this court has concluded that once police have validly stopped a vehicle for a reason independent of marijuana, the odor of burnt

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marijuana alone does not create probable cause or even a reasonable suspicion of criminal activity sufficient to justify ordering the vehicle's occupants to get out of the vehicle. See Cruz, supra at 472, 476. We also have concluded that the odor of either burnt or unburnt marijuana does not support a finding of probable cause to search a vehicle without a warrant. See Commonwealth v. Overmyer, 469 Mass. 16, 23 (2014); Cruz, supra at 475-476. See also Craan, 469 Mass. at 29-35; Commonwealth v. Daniel, 464 Mass. 746, 751-757 (2013). Recognizing the changed status of possession of small quantities of marijuana, the Commonwealth concedes that in the present case, the odor of burnt marijuana, even when combined with the other limited indicia of a drug transaction that preceded the vehicle stop, did not amount to reasonable suspicion of criminal activity that would have justified the police in stopping the vehicle for investigative purposes. Nonetheless, because c. 94C, § 32L, simply decriminalizes the possession of one ounce or less of marijuana and replaces the criminal penalty with a civil penalty for such possession, [Note 6] the Commonwealth analogizes the stop that occurred here to routine stops of automobiles for civil traffic violations. Pursuing the analogy, the Commonwealth urges us to affirm the order denying the defendant's motion to suppress on the ground that, just as an officer may stop a motor vehicle to issue a citation for a civil traffic offense, an officer may do so in order to issue a civil citation for marijuana possession. [Note 7]

Because both the Commonwealth and the defendant premise much of their arguments on the statutes that establish procedures for issuing citations for traffic violations and for civil marijuana infractions, we begin our analysis with a review of those statutes. General Laws c. 90C, §§ 2 and 3 (A), authorize police to issue

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citations for motor vehicle traffic violations, including civil infractions. [Note 8], [Note 9] The Commonwealth argues, and the defendant agrees, that although these statutes contain no express language regarding police authority to stop moving vehicles for the purpose of issuing citations for civil traffic violations, such stops have been permitted. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ("Where police have observed a traffic violation, they are warranted in stopping a vehicle"). See also Commonwealth v. Feyenord, 445 Mass. 72, 75 (2005), cert. denied, 546 U.S. 1187 (2006) (permitting vehicle stop based on inoperable headlight); Commonwealth v. Santana, 420 Mass. 205, 207 (1995) (permitting

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stop for defective taillight). [Note 10] The Commonwealth contends that, similar to these traffic violation statutes, G. L. c. 94C, § 32N, [Note 11] provides a mechanism for issuing civil citations for marijuana possession -- specifically, through G. L. c. 40, § 21D, which governs noncriminal disposition of certain municipal enactments [Note 12] -- and that this mechanism should be understood as also authorizing police to stop vehicles to issue civil marijuana citations. Furthermore, the Commonwealth notes that in order for

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a police officer to be able to issue a citation for marijuana possession to a person in a moving automobile and still comply with the requirements of c. 40, § 21D, the officer must be able to order the car to stop. [Note 13]

Focusing first on our traffic violation statutes, we agree with the position of both the Commonwealth and the defendant that because many of these laws pertain specifically to moving vehicles, and G. L. c. 90C, § 2, requires an officer to give a copy of a traffic citation to the violator and to ask that person to sign the citation, c. 90C, §§ 2 and 3 (A), implicitly authorize police officers to stop motor vehicles in order to issue traffic citations. Otherwise, it would be impossible for police to issue citations for moving traffic violations. Moreover, many of the traffic violation laws serve a public safety purpose, and allowing police to stop moving vehicles that are violating them in order to issue traffic citations is one mechanism of promoting safety on our roads. The parties' reading of c. 90C, §§ 2 and 3 (A), is consistent with this purpose.

Like G. L. c. 90C, §§ 2 and 3 (A), neither G. L. c. 94C, § 32N, nor G. L. c. 40, § 21D, says anything about police authority to stop moving vehicles for the purpose of issuing citations -- they are simply silent on this point. But in contrast to c. 90C, §§ 2 and 3 (A), the marijuana possession decriminalization statutes do not directly relate to moving vehicles or to traffic safety. We need not resolve here, however, the question whether, and if so, in what circumstances, c. 94C, § 32N, and c. 40, § 21D, authorize police to stop a motor vehicle in order to enforce the civil penalties for marijuana possession under G. L. c. 94C, § 32L. This is so because quite apart from these statutes, there are constitutional considerations that must first be taken into account, and in the end, these constitutional considerations carry the day.

A police stop of a moving automobile constitutes a seizure, and therefore, any such stop, whatever its purpose, must comply with the Fourth Amendment to the United States Constitution and with art. 14 of the Massachusetts Declaration of Rights. See Commonwealth

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v. Rodriguez, 430 Mass. 577, 579 (2000). See also Whren v. United States, 517 U.S. 806, 809-810 (1996); Delaware v. Prouse, 440 U.S. 648, 653 (1979). We recognize that in the civil traffic law violation context, appellate decisions in Massachusetts have deemed constitutionally permissible stops that factually appeared to satisfy either the probable cause or reasonable suspicion standard. [Note 14] See Santana, 420 Mass. at 206-207; Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999). See also Bacon, 381 Mass. at 643-644. Cf. Commonwealth v. Washington, 459 Mass. 32, 38-39 & n.14 (2011). [Note 15] Nevertheless, for the reasons discussed infra, similar stops to enforce the civil penalty for marijuana possession are constitutionally distinct, and warrant their own Fourth Amendment and art. 14 analysis.

In undertaking that analysis here, the first task is to determine whether we are dealing with an issue of probable cause or reasonable suspicion. In Commonwealth v. Garden, 451 Mass. 43 (2008), we stated that the "odor of marijuana is sufficiently distinctive that it alone can supply probable cause to believe that marijuana is nearby." Id. at 48. See Commonwealth v. Lawrence L., 439 Mass. 817, 823 (2003) ("odors alone may be sufficient to satisfy the probable cause requirement of the Fourth Amendment"). However, that decision preceded the decriminalization of possession of one ounce or less of marijuana. See Garden, supra at 43. Since then, we have "reconsider[ed] our jurisprudence in light of the change to our laws." See Cruz, 459 Mass. at 464 & n.8. In particular, our analysis of the meaning that can be derived from the odor of marijuana alone has evolved, such that, as indicated previously, we no longer consider the "strong" or "very strong" smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present, see Overmyer, 469 Mass. at 23; nor is such a determination of probable cause appropriate based on the smell of burnt marijuana combined with the presence of two small bags totaling less than one ounce. See Daniel, 464 Mass. at 747, 751-752. Although we

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have not explicitly addressed since the passage of the decriminalization statute whether the odor of marijuana alone creates probable cause to believe that any amount of the drug is present, these cases remind us that in reevaluating what inferences may now be drawn from evidence that suggests the possible presence of marijuana, we must also keep in mind the varied and occasionally complex contexts in which such evidence presents itself.

With this principle in mind, Garden's conclusion that the odor of marijuana alone creates probable cause to believe that the drug is still present is insufficiently nuanced, because it fails to account for the significant possibility that the odor of burnt marijuana may be present on a person or in a vehicle, but the drug itself is not. As we noted in Garden itself, where the occupants of a vehicle wore clothes that smelled like marijuana but a patfrisk of these persons produced no drugs, the odor of burnt marijuana in this context may have "suggest[ed] that the defendant, or others in the car, had been smoking marijuana in the not too distant past." Id. at 52. We add here another possibility: that the individuals who smelled like marijuana could have been at a social gathering where others smoked marijuana. See Daniel, 464 Mass. at 747, 756 (interior of vehicle smelled of burnt marijuana; driver attributed this smell to being at party where others smoked). These examples illustrate the point that although the occupants of a vehicle, or the vehicle's interior, might smell like burnt marijuana, that does not necessarily mean that an occupant of the vehicle currently possesses any amount of marijuana. Therefore, upon further consideration of these possibilities, and keeping in mind that probable cause determinations turn on "probabilities," including "factual and practical considerations of everyday life," see Commonwealth v. Cast, 407 Mass. 891, 895 (1990) (citation omitted), we conclude that in a case such as the present one, where the only factor leading an officer to conclude that an individual possesses marijuana is the smell of burnt marijuana, this factor supports a reasonable suspicion that that individual is committing the civil offense of possession of a small quantity of marijuana, but not probable cause to believe that he or she is committing the offense. Therefore, the question in this case is whether the Fourth Amendment and art. 14 permit police to stop a vehicle where they have reasonable suspicion, but not probable cause, to believe that a civil, infractionary offense of marijuana possession is occurring or has occurred.

"[T]he 'ultimate touchstone of both the Fourth Amendment . . . and art. 14 . . . is reasonableness.'" Overmyer, 469 Mass. at 20,

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quoting Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert. denied, 133 S. Ct. 945 (2013). Thus, to evaluate the permissibility of particular law enforcement practices, including police stops of moving vehicles where there is no probable cause to suspect the vehicle's involvement in criminal activity, courts have balanced the intrusiveness of the police activities at issue against any legitimate governmental interests that these activities serve. See Prouse, 440 U.S. at 654, 658-661 (prohibiting vehicle stops without any evidence of traffic or equipment violation). See also Whren, 517 U.S. at 817-818 (where police lack probable cause for vehicle stop, detailed balancing of interests has determined stop's reasonableness). Cf. Catanzaro, 441 Mass. at 56 ("There is no ready test for reasonableness [under art. 14] except by balancing the need to search or seize against the invasion that the search or seizure entails"). In balancing these factors, we keep in mind that "art. 14 may provide greater protection than the Fourth Amendment against searches and seizures." Rodriguez, 430 Mass. at 584.

Regardless of the reason for it, a police stop of a moving vehicle can be "humiliating, frightening, and embarrassing" for the vehicle's occupants, and can raise the possibility of arrest and incarceration for a crime unrelated to the original reason for the stop, as the present case illustrates. See Woods, Decriminalization, Police Authority, and Routine Traffic Stops, 62 U.C.L.A. L. Rev. 672, 713 (2015). Cf. Prouse, 440 U.S. at 657 (random vehicle stops to check documents "generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority[,] . . . interfere with freedom of movement, are inconvenient, . . . consume time . . . [and] may create substantial anxiety"). However, in the automobile law context, allowing police to make these stops serves a significant governmental interest. As discussed previously, many of our traffic violation statutes regulate moving cars and relate directly to the promotion of public safety; even those laws that have to do with maintaining a vehicle's equipment in accordance with certain standards may also be safety-related. See id. at 658 (recognizing States' "vital interest" in vehicle inspection and registration requirements, which ensure that all vehicles are "fit for safe operation"). Permitting stops based on reasonable suspicion or probable cause that these laws may have been violated gives police the ability to immediately address potential safety hazards on the road. Thus,

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although a vehicle stop does represent a significant intrusion into an individual's privacy, the governmental interest in allowing such stops for the purpose of promoting compliance with our automobile laws is clear and compelling.

No similar governmental interest supports allowing police to stop a vehicle based on reasonable suspicion that someone in the vehicle possesses an ounce or less of marijuana in violation of G. L. c. 94C, § 32L. Although vehicle stops to investigate civil marijuana infractions serve a general law enforcement purpose, there is no obvious and direct link between enforcement of the civil penalty for marijuana possession and maintaining highway safety. [Note 16] Moreover, particularly because possession of one ounce or less of marijuana was decriminalized through a ballot initiative, our analysis of the governmental interests served by allowing police to stop vehicles in order to enforce the civil penalty under this law "must give effect to the clear intent of the people of the Commonwealth in accord with art. 14 . . . and the Fourth Amendment." See Cruz, 459 Mass. at 464-465. We have determined that the people's intent in decriminalizing possession of this small quantity of marijuana was to establish that this offense was no longer "a serious infraction worthy of criminal sanction," and that those who commit this offense should be treated differently from other drug offenders. Id. at 471. In particular, we have identified three policy goals that c. 94C, § 32L, was intended to serve: "to reduce the direct and collateral consequences of possessing small amounts of marijuana, to direct law enforcement's attention to serious crime, and to save taxpayer resources previously devoted to targeting the simple possession of marijuana." Commonwealth v. Jackson, 464 Mass. 758, 765 (2013). See Cruz, supra at 471-472. Permitting police to stop a vehicle based on

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reasonable suspicion that an occupant possesses marijuana does not serve these objectives. Rather, it encourages police to continue to investigate and to pursue individuals suspected of this offense in the same manner as before decriminalization, it does not refocus police efforts on pursuing more serious crime, and it subjects individuals who police merely suspect may be committing a nondangerous, civil offense to all of the potential consequences of a vehicle stop.

Although marijuana possession remains illegal, the present case is not one in which a police officer actually observed an infraction -- such as a person walking through a park smoking what appeared to be a marijuana cigar or cigarette -- and stopped the offender for the purpose of issuing a citation and confiscating the offending item. Rather, here, an officer smelled burnt marijuana, nothing more, and stopped a vehicle to investigate further whether a citation was appropriate. (It was only after the stop had been made that Amaral observed the driver's marijuana cigar.) Because stops based on reasonable suspicion of a possible civil marijuana infraction do not promote highway safety and run contrary to the purposes of G. L. c. 94C, § 32L, we are disinclined to extend the rule that allows vehicle stops based on reasonable suspicion of a civil motor vehicle offense to stops to enforce the civil penalty for possession of one ounce or less of marijuana. Such stops are unreasonable; therefore, the stop in this case violated art. 14.

3. Conclusion. The order denying the defendant's motion to suppress is reversed. The case is remanded to the District Court for further proceedings consistent with this opinion. So ordered.

CORDY, J. (dissenting, with whom Spina, J., joins). "An Act establishing a sensible State marijuana policy," codified at G. L. c. 94C, §§ 32lL-32N, did not legalize the possession of marijuana; it merely decriminalized the possession of small amounts. See Commonwealth v. Cruz, 459 Mass. 459, 464 (2011). Such possession remains a civil offense and, as with other civil offenses, subjects the offender to a civil penalty and forfeiture of the marijuana. G. L. c. 94C, § 32L.

The novel issue presented here is whether reasonable suspicion of a civil marijuana violation occurring in a motor vehicle is

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sufficient to justify stopping the motor vehicle for purposes of confirming or dispelling that suspicion and, if necessary, for purposes of issuing a citation. [Note Dissent-1] The court, after employing a balancing test weighing the level of intrusion of a motor vehicle stop against the legitimate governmental interest at stake in the enforcement of the marijuana laws, concludes that reasonable suspicion is not sufficient to justify such a stop. For the reasons set forth below, I respectfully dissent.

It is undisputed that a motor vehicle stop conducted by a police officer constitutes a seizure for purposes of both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000), citing Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990). It is well settled, however, that reasonable suspicion that a civil traffic offense has been committed is constitutionally sufficient to justify a motor vehicle stop. See Delaware v. Prouse, 440 U.S. 648, 663 (1979) (officer must have "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that the vehicle or an occupant is otherwise subject to seizure for violation of law"); Commonwealth v. Washington, 459 Mass. 32, 39 & n.14 (2011) ("officer's reasonable suspicion of a possible, but unconfirmed, motor vehicle violation sufficiently justifies an investigatory traffic stop in order to verify or dispel that suspicion"). See also Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999) (reasonable suspicion that window is illegally tinted sufficient to justify stopping motor vehicle to ascertain whether civil violation had occurred). In my view, there is no constitutionally based reason to distinguish stops for civil marijuana violations (occurring in motor vehicles) from stops for civil motor vehicle violations. Reasonable suspicion of a civil violation is enough.

The court, however, concludes that a detailed balancing inquiry is required when a motor vehicle stop is conducted in the absence of probable cause. The cases on which the court relies in support

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of this conclusion, however, concern police activities conducted without any individualized suspicion. For example, Prouse, 440 U.S. at 650-651, concerned the constitutionality of a motor vehicle stop that was conducted without any suspicion of a traffic or equipment violation, solely to check the driver's license and automobile registration. In determining the stop's reasonableness, the Supreme Court employed a balancing inquiry because the officers possessed no individualized suspicion of criminal wrongdoing. See id. at 654-659.

Likewise, the central issue addressed by the Supreme Court in Whren v. United States, 517 U.S. 806, 810 (1996), was not the quantum of proof necessary to effectuate a motor vehicle stop for a traffic violation, but whether the (allegedly racial) subjective motivation of the police officer conducting the motor vehicle stop was relevant to the stop's reasonableness. The Court declined to engage in a detailed balancing inquiry to determine the stop's reasonableness, concluding that such balancing is not necessary when a motor vehicle stop is conducted with individualized suspicion, id. at 817-819, in that case, probable cause to believe a civil motor vehicle infraction had occurred. Id. at 819. Here, there is also individualized suspicion, albeit at least reasonable suspicion. [Note Dissent-2]

Finally, the court relies on Commonwealth v. Rodriguez, 430 Mass. 577, 580-581 (2000), to support its balancing inquiry. The Rodriguez case, however, addressed the constitutionality of a police roadblock set up for the purpose of interdicting illegal drugs. Id. at 585-586. This court noted that except for a few narrowly defined public safety intrusions, a police officer must possess at least reasonable suspicion to justify a motor vehicle stop. Id. at 580, quoting United States v. Huguenin, 154 F.3d 547, 553 (6th Cir. 1998). Again, a motor vehicle stop conducted as part

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of a suspicionless roadblock is markedly different from a motor vehicle stop made on reasonable suspicion of a civil marijuana violation.

In my view, no detailed balancing of interests is necessary where this court has already recognized that reasonable suspicion of a civil motor vehicle infraction is sufficient to justify an investigatory stop for purposes of confirming or dispelling that suspicion. See Washington, 459 Mass. at 39 & n.14. "[T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against 'an objective standard,' whether this be probable cause or a less stringent test" (footnotes omitted). Prouse, 440 U.S. at 654. That standard is met here and standing alone should be sufficient to justify an investigatory stop for the purpose of confirming a civil violation of the marijuana laws and issuing a citation just as reasonable suspicion of a civil traffic violation justifies such a stop. See, e.g., People v. Brown, 62 Cal. App. 4th 493, 496-497 (1998) (officer may stop individual suspected of violating California vehicle code in order to issue citation); State v. Brown, 694 A.2d 453, 453 (Me. 1997) ("In order to support a brief investigatory stop of a motor vehicle, . . . a police officer must have an articulable suspicion that criminal conduct or a civil violation has occurred, is occurring, or is about to occur . . ."); State v. Colstad, 260 Wis.2d 406, 414-415, cert. denied, 540 U.S. 877 (2003) (reasonable suspicion that driver violated traffic ordinance justified investigatory stop). The stop is investigative in nature, and its purpose is merely to confirm or dispel the officer's suspicion that a civil marijuana violation has occurred. [Note Dissent-3]

The court goes on to opine that because a civil marijuana violation generally has no bearing on traffic and automobile safety, a motor vehicle stop to enforce that law is different from

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a motor vehicle stop for purposes of enforcing the civil traffic laws, and, consequently, in the court's balance inquiry, probable cause rather than reasonable suspicion is necessary to justify such a stop. While it may be true that not all civil marijuana violations have an impact on automobile safety, to the extent that such a consideration is of any constitutional relevance, it seems also true that civil marijuana violations occurring in motor vehicles do implicate concerns regarding traffic and automobile safety. [Note Dissent-4] Indeed, sending and receiving electronic messages has no bearing on traffic and automobile safety when done in a park. When done while operating a motor vehicle, however, it presents enough of a safety risk that it is now prohibited by law. See G. L. c. 90, § 13B. [Note Dissent-5]

Finally, the court concludes not only that probable cause is necessary, but also that probable cause can be established only if the police officer actually sees the illegal use of marijuana. To my knowledge, we have not in the past concluded that probable cause can only be established in this manner. See, e.g., Washington, 459 Mass. at 40 (although officer did not actually see defendant riding in motor vehicle without seat belt, officer had probable cause sufficient to issue citation where defendant was not wearing seat belt very shortly after traffic stop).

For these reasons, I respectfully dissent.