Mass. SJC Says Police Can Make Drugged Driving Arrest Based on Observations

January 17, 2019

The Massachusetts Supreme Court has ruled that a state police officer was justified in arresting a suspect for driving under the influence of marijuana based on the officer’s observations of the driver’s demeanor, physical appearance and behavior.

The case – Commonwealth vs. Mark J. Davis – comes after Major Daniel Risteen stopped defendant Davis for speeding and driving erratically on the Massachusetts Turnpike one afternoon in July 2015.

Davis, driving a gray Infiniti sedan, drove past Risteen at between seventy and eighty miles per hour and followed “dangerously close” to two other vehicles, according to the opinion document. Davis also failed to slow down at the toll booths, and he was driving seventy miles per hour in a zone with a posted speed limit of thirty miles per hour.

Risteen stopped the vehicle immediately after it had passed through the toll booths, and Davis, who had been driving in the left-hand lane, stopped on the left-hand side of the egress.

There were two passengers in the vehicle in addition to Davis. After Risteen approached the driver’s side door and asked Davis for his license and registration, he detected a strong odor of burnt marijuana and an odor of fresh marijuana coming from within the vehicle, as well as the smell of burnt marijuana on Davis, according to the opinion document.

During this initial interaction, Risteen also noticed Davis’ eyes were “red, glassy, and droopy,” he was “fighting with the eyebrows, trying to keep his eyes open,” and “his speech was slow and lethargic.” Davis admitted to smoking marijuana “a couple of hours ago.”

Risteen noted both passengers also appeared to have smoked marijuana and thought they “looked high.” They smelled of marijuana, and they had trouble staying awake during the interaction, according to the opinion document. The passengers both said they had been smoking marijuana earlier that day.

Risteen placed Davis under arrest for operating a motor vehicle while under the influence of marijuana.

After he was arrested and placed in the police cruiser, Davis asked if one of his passengers could drive his vehicle, but as Risteen believed “neither one of them could drive, they were both high,” he instead had the vehicle impounded and called a tow truck to remove it from the turnpike.

Prior to the tow, an inventory search of the car was carried out by searching the trunk. There, a loaded handgun, ammunition and three bags of marijuana were found sealed inside a plastic food container with a tight-fitting lid. Risteen decided to conduct a further search of the car at the state police barracks, because the sedan was stopped in a spot that was causing traffic to back up at the tolls.

After the tow truck delivered Davis’ vehicle to the state police barracks, Risteen requested a drug dog to search the vehicle. The dog alerted to the glove compartment, for which Risteen obtained the key and found eleven oxycodone pills and two plastic bags containing cocaine.

After his arrest, Davis moved to suppress the evidence seized from his automobile. A Boston Municipal Court judge denied this motion, finding the police had probable cause to arrest him for operating a motor vehicle while under the influence of marijuana and the search of the vehicle was justified as an inventory search.

A jury acquitted Davis of all charges except unlawful possession of the drugs found within the locked glove compartment, and he appealed to the Appeals Court. The Supreme Judicial Court then took on the case.

On appeal, Davis argued that police did not have probable cause to arrest him for operating a motor vehicle while under the influence of marijuana, and the search of his automobile was not a lawful inventory search or justified by any other recognized exception to the warrant requirement.

A warrantless arrest is lawful under the Fourth Amendment to the United States Constitution and article 14 of the Declaration of Rights if it is supported by probable cause.

In Davis’ view, the facts known at the time of his arrest gave rise only to a suspicion that he had consumed marijuana prior to the traffic stop, and without evidence of impairment, there was no crime, just the civil infractions of speeding and tailgating.

“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,'”, according to the opinion document. “The offense requires impairment of the ability to drive, as opposed to proof that the driver is ‘drunk’ or ‘high.’ We acknowledge that it is often difficult to detect marijuana impairment, because the effects of marijuana consumption ‘vary greatly amongst individuals’…and as yet, there are no validated field sobriety tests.”

Indeed, Risteen testified that before he reached the driver’s side door, he had been considering a number of reasons why Davis would have been driving erratically, only one of which involved driving while intoxicated.

After approaching the driver’s side door of the Infiniti, however, Risteen detected the odor of burnt and unburnt marijuana. Among other things, Davis had red and glassy eyes, he was struggling to keep his eyes open and his head upright, his coordination was slow, he had difficulty focusing, and he also had difficulty following the officer’s directions. Davis told Risteen he had smoked marijuana earlier that day. Given this, the SJC found the motion judge was warranted in ruling police had probable cause to believe Davis operated a motor vehicle while impaired.

As a result, The SJC found the denial of the defendant’s motion to suppress on this basis was justified.

On appeal, Davis also challenged the search of his vehicle at the state police barracks on two grounds. First, he asserted that the judge was wrong in finding both passengers were unable to drive the vehicle safely from the turnpike toll booth. Second, he argued the inventory search was a pretext for an investigatory search.

The motion judge determined the officers were authorized to conduct the search of Davis’ vehicle as an inventory search pursuant to the state police inventory search policy. For evidence seized without a warrant to be admissible, the Commonwealth needs to establish a warrantless search fell within an exception to the warrant requirement, according to the opinion document.

An inventory search serves three separate purposes: Police may impound and search a vehicle in order to protect the vehicle and its contents from the threat of theft or vandalism, to protect the police and the tow company from false claims and to protect the public from dangerous items that might have been left in a vehicle.

The SJC agreed with the motion judge’s conclusion that the police had reasonable grounds to impound the vehicle, finding that the car – which was stopped on the left-hand side of a toll exit on the Massachusetts Turnpike in the middle of the day – posed a public safety hazard.

The judge also determined the police were justified in rejecting Davis’ request that one of his passengers be permitted to remove the vehicle from the highway, crediting Risteen’s testimony detailing his observations of the passengers’ state.

Based on Risteen’s decision to use a drug dog to search the vehicle, Davis argued that the inventory search of his automobile was a pretext to search the vehicle for an investigative purpose. Unlike other types of searches, an inventory search is administrative, and the decision to conduct an inventory search cannot be for investigatory purposes.

The SJC concluded the officers had adequate grounds to secure the vehicle and search the glove compartment for evidence related to the offense of operating the vehicle while under the influence of marijuana, however.

This is because the officer had probable cause to believe, based on Davis’ appearance and his interactions with Risteen, as well as his admission to having smoked marijuana earlier, that his consumption of marijuana had diminished his ability to operate a motor vehicle safely, the opinion document said. In addition, once the passengers had left the vehicle, Risteen saw marijuana leaves scattered on the rear passenger seat.

Therefore, the SJC maintained the officers had authority to search the vehicle pursuant to the automobile exception. The search could extend to the locked glove compartment because it was reasonable for the officers to believe it contained marijuana or implements used to consume marijuana, according to the opinion document.

As a result, the SJC affirmed the order denying Davis’ motion to suppress and affirmed the previous judgments.