Court: Odor of burnt pot no longer enough to pull people out of cars - unless accompanied by suspicious behavior

The Massachusetts Appeals Court ruled today a loaded gun found in the glove compartment of a car pulled over for a traffic stop in Dorchester in 2009 can be used as evidence against the two people in the car.

A Boston Municipal Court judge had ruled the gun inadmissible evidence against Clint Daniel and Alyson Tayetto because a Boston police officer ordered them out of the car after he got a whiff of marijuana despite the 2008 referendum that decriminalized possession of small amounts of pot. Earlier this year, the Supreme Judicial Court ruled the referendum meant the smell of burnt pot by itself no longer constituted enough reason to order somebody out of a car, in a case out of Jamaica Plain.

But that case involved a guy in a car stopped by a hydrant. The Appeals Court ruled that Tayetto, who was driving, gave the officer sufficient reason to think they might have been toking up while driving, enough to warrant ordering them out of the car to see if Tayetto was operating while impaired:

Here there was far more to establish criminality than the faint odor of marijuana emanating from an illegally parked vehicle. First was the manner of Tayetto's operation: she operated the vehicle at night without a driver's-side headlight; made a left intersection turn in front of DeLeo's cruiser without signaling; and in response to the cruiser's blue lights, applied the brakes immediately, stopping in the middle of the travel lane. Second was the likelihood that Daniel's movements signified his hiding of contraband. As DeLeo approached, Daniel was leaning over, and rocking his shoulders back and forth with his head down. Third was the noticeable odor of freshly burnt marijuana, which suggested an immediate explanation for Tayetto's erratic operation, followed by an explanation for the odor that DeLeo was free to reject as implausible given his observations, and Tayetto's quick surrender of two baggies of marijuana from her person. Viewed objectively and reasonably, and without parsing each individual component, these facts provided DeLeo with probable cause to believe that Tayetto and Daniel were engaged in the consumption of marijuana in a moving vehicle, that Tayetto's capacity to operate was impaired thereby, that Tayetto's negligent operation endangered the lives and safety of the public, and that additional marijuana and evidence of recent marijuana usage could be found inside the passenger compartment, including the glove box.

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