A man facing illegal-weapons charges stemming from a Mattapan traffic stop will have to explain why police say they found a loaded gun in a secret compartment in his car when he goes to trial, the Massachusetts Appeals Court ruled today.
A lower-court judge had tossed the evidence against Yves Montaine, saying the mere fact his car reeked of un-smoked marijuana when he was stopped for traffic infractions at Blue Hill Avenue and Wellington Hill Street in December, 2010 did not establish probable cause for a Boston Police detective to get a search warrant for the car - which revealed a hidden compartment holding a gun loaded with 15 rounds of ammunition.
Even the fact that marijuana found in the car was wrapped in plastic as if ready for sale - and the presence of "$2,300 (in bundles of $1,000, $300, and $1,000) and wrapped in rubber bands in a manner the [detective] knew to be consistent with the way that proceeds of drug transactions commonly were wrapped" - was not enough evidence of probable cause for Boston Municipal Court Judge Sally Kelly, nor was the mysterious wiring under the dash or the fact that both men had prior records.
As it did in a 2012 case, the state's second highest court acknowledged that the mere odor of pot by itself no longer justifies a more intensive search, since possession of small amounts of marijuana is no longer a criminal offense - but only if that's the only evidence police have:
[W]hen an experienced police officer detects an "overwhelming" odor of unburnt marijuana that is "pervasive" throughout the entire vehicle, and the officer reasonably believes it is inconsistent with the small quantity of marijuana that is visible in the vehicle, the officer has specific and articulable facts that support a reasonable suspicion that a crime is being committed, namely possession of more than one ounce of marijuana. Here, the combination of the "overwhelming" odor of unburnt marijuana and the additional facts known by the officer, namely, the absence of any implements for smoking marijuana, the three sizable bundles of United States currency, the excess wiring under the dashboard and throughout the passenger compartment consistent with hides, the manner in which the marijuana in the small bag in the console was packaged, the inconsistency between the strength of the odor and the amount in the small bag, and the fact that the two occupants had prior criminal convictions of drug offenses, was sufficient to establish probable cause to believe a criminal quantity of marijuana was hidden in the vehicle. It is therefore unnecessary for us to decide whether the "overwhelming" odor of unburnt marijuana alone provided probable cause to support the issuance of the search warrant.
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