The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Davis.  The Justice had to determine what is the standard to determine if there is probable cause to arrest a driver for being impaired by marijuana. In the Davis case, the defendant was stopped for speeding, the car smelled of marijuana, the officer said that his speech was delayed and the arresting officer formed the opinion that the defendant was impaired by marijuana.  The oral argument before the SJC revealed the following questions and areas of concern for the Justices.  

Justice Link suggested that the officers did not have much evidence to make that conclusion that the defendant was impaired by marijuana.  The Commonwealth disagreed contending that the officer had more than sufficient evidence to conclude that the driver was impaired.  Davis’ lawyer argued that the officer should have conducted some field tests to perform a better investigation to determine impairment.  Justice Lenk questioned the Commonwealth about how much the smell adds to the analysis because it can be long after consumption.  

On the issue of probable cause, the Justice seems to suggest that if it were an alcohol case there would be enough probable cause to arrest.  Justice Gaziano suggested that the SJC allows field sobriety tests into evidence in Gerhardt because it informs the officers opinion regarding the probable cause to arrest.  He questioned the lawyer for the defendant that if the car smelled like alcohol, we would allow the officer to arrest; in this case it smells like marijuana, so the same inference of impairment he asked if that should be permitted.  The defense lawyer skillfully argued that marijuana is different and the Court cannot tell if the person is impaired.  The studies on marijuana suggest that a driver would drive slower if under the influence of marijuana and not faster as the defendant in this case.

The problem with the officer’s observation in Davis is that he never testified as to what signs his training told him to look for to determine impairment by marijuana.  According to the DRE manual officer who have specialized training, an officer would see a number of signs of impairment.  At the motion, the officer never testified that the number of signs of impairment by marijuana and the basis of his training.

Inventory Search Issue

The Justice spent a great deal of time on the next issue in the case regarding whether the search of car was proper.  The Justice found that the record from the trial court was unclear so that it was not clear from the record the sequence of events during the search.  Justice Lowy suggested may have to remand the case back to the trial court.  

Justice Gaziano stated that once the canine was brought it at that point it appears to be an investigatory search and not an inventory search.  The Commonwealth argued that the officer were permitted to continue the inventory search once it started.  

The Justice seemed to struggle with the Constitution justification for the search as it appeared to be investorigatory.  The Commonwealth argued that there was probable cause to search the entire car as a search incident to arrest. The Justice did not address that contention.  

It appears that the court may remand the case back to the motion judge for additional findings on the inventory search. If the SJC finds no probable cause for the arrest for OUI marijuana, it would not have to reach the issue of the inventory search.  Based on their questioning, it appears as they may use the Davis case to clarify when an officer has probable cause to arrest based on a belief that a driver is impaired by marijuana.  To listen to the oral argument in the case, you can find it on the Suffolk University School of Law Website.

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