Commonwealth v. Long

482 Mass. 804

128 N.E.3d 593

COMMONWEALTH

v.Gregory W. LONG.

SJC-12694

Supreme Judicial Court of Massachusetts, Hampshire..

Argued April 2, 2019

Decided August 12, 2019

Luke Ryan, Northampton, for the defendant.

Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

This matter concerns the search of a warehouse, pursuant to a search warrant that was issued, in part, based on the odor of unburnt marijuana. Before the District Court judge had issued a decision on the defendant's motion to suppress due to a lack of probable cause to issue the warrant, the parties requested that the judge report a question to the Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). The judge allowed the request and reported the question as the parties had phrased it. We transferred the appeal to this court on our own motion. We conclude that the warrant affidavit supported a finding of probable cause to search the commercial building for evidence of illegal marijuana cultivation.

1. Background. We recite the facts set forth in the warrant affidavit. On October 17, 2017, Amherst police officers Dominic Corsetti and Lindsay Carroll were on patrol in their police cruiser at approximately 6:30 P.M. They noticed two automobiles parked at one end of a windowless warehouse building, at the far end away from the driveway. No other vehicles were in the parking lot. The building was in a rural area with no nearby neighbors, surrounded by fields to the west and trees and brush to the north and east. Multiple active surveillance cameras were mounted on the exterior of the building. Deeming the placement of the vehicles to be suspicious, the officers undertook a check of the registrations. They learned that the owner of one vehicle, a Toyota Tundra pickup truck with a Massachusetts registration, had a number of convictions of possession of marijuana and possession of marijuana with intent to distribute, over a period of almost twenty years, beginning in the late 1990s.

The officers got out of their cruiser and walked around the building, along a narrow strip of grass that separated the building from the woods to the north and east. The approximately 11,000 square foot warehouse was primarily constructed of cinder blocks that measured eight inches by sixteen inches on their face and eight inches thick.¹ The warehouse's ordinary ventilation vents appeared to have been blocked by plywood from the interior of the building. At the same time, polymer (PVC) exhaust or ventilation pipes, extending through the cinder block walls, appeared to have been recently mortared into place.

Detective Gregory Wise of the Amherst police department arrived to assist in the investigation. Wise had received specialized training in narcotics investigations, and he was familiar with methods utilized to cultivate and harvest marijuana. The officers established a perimeter around the warehouse. Wise observed that "[u]pon walking around the circumference of the building it should be noted that the overwhelming odor of unburnt fresh marijuana was present and appeared to be coming from the inside of the building." The officers also observed that a padlock on the door to a smaller, attached building had been broken, and there were pry marks on the door. The interior of that building held many empty bottles of a cleaning solvent.

The officers were able to contact the owner of the building, who was located in another State. He told the police that he had rented the building to the defendant. The owner's son arrived on scene and said that three or four individuals had been leasing the warehouse for the past year. The tenants paid approximately $4,000 per month; the son did not know the nature of their business.

The police checked the records of "the Medical Marijuana System" and determined that neither the defendant nor the registered owner of the Toyota had a medical marijuana card or was authorized to grow marijuana pursuant to a hardship marijuana cultivation license. A check of the defendant's criminal record indicated that it contained six entries, including possession of marijuana in 2004, 1989, and 1988.

One of the officers noted a light coming from around the door of a garage that was attached to the other side of the warehouse and knocked on the door, but received no response. Looking through one of the cracks in the door panels, he saw another vehicle and an individual leaving the garage and entering the main warehouse.

Officers secured the area while another officer went to obtain a search warrant. Upon executing the warrant, police found, and seized, among other items, United States currency, equipment used to cultivate marijuana, and at least fifty pounds of marijuana. The defendant was placed under arrest for trafficking in fifty pounds or more of marijuana, in violation of G. L. c. 94C, § 32E(a ).

The defendant moved to suppress the evidence seized pursuant to the search warrant, on the ground of a lack of probable cause. He argued that, using only their sense of smell, the police were unable to exclude the possibility that the odor emanating from the windowless, 11,000 square foot, cinder-block warehouse was the product of legal marijuana use, possession, or cultivation.

After the defendant filed his motion to suppress in the District Court, and before a judge of that court had ruled on the motion, the defendant and the Commonwealth jointly requested that the District Court judge report what both parties labeled a determinative question in the defendant's motion to suppress to the Appeals Court, pursuant to Mass. R. Crim. P. 34, and the judge did so. To facilitate this report, the parties stipulated to the facts set forth in certain paragraphs in the search warrant affidavit. The case was transferred to this court on our own motion.

2. Discussion. a. Reported question. The judge reported the following question:

"Does probable cause exist where an affidavit establishes the overwhelming odor of unburnt fresh marijuana emanating from an 11,000 square foot windowless commercial building with exhaust vents that appears to be covered in plywood where the reported leaseholder has a criminal history including [four] charges of possession of Class D between 1988 and 2004 and no active license to cultivate and the registered owner of a vehicle on the property has a criminal history including charges of possession with intent to distribute a Class D substance in 2015 and possession of a Class D substance in 1999 and 1998, and also had no active license to cultivate pursuant to Commonwealth v. Overmyer, 469 Mass. 16, 11 N.E.3d 1054 (2014), and its progeny."

As an initial matter, we observe that "[o]nly in the most exceptional circumstances will we review interlocutory rulings in criminal cases under our general superintendence powers." Gilday v. Commonwealth, 360 Mass. 170, 171, 274 N.E.2d 589 (1971).

"Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing."

Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557, 289 N.E.2d 852 (1972), quoting John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass. 271, 273, 34 N.E.2d 685 (1941). Interlocutory reports are not to "be permitted to become additional causes of the delays in criminal trials which are already too prevalent." Commonwealth v. Vaden, 373 Mass. 397, 399, 367 N.E.2d 621 (1977). "An interlocutory appeal, like a report, may be appropriate when the alternatives are a prolonged, expensive, involved or unduly burdensome trial or a dismissal of the indictment." Commonwealth v. Cavanaugh, 366 Mass. 277, 279, 317 N.E.2d 480 (1974).

Here, however, what was reported was not a question of law that was a material part of the question that the motion judge was required to answer. The question that the parties asked the judge to report, and that the judge did report to this court, is a hypothetical question; it extracts some of the relevant facts set forth in the warrant affidavit. It is not the question that was before the magistrate who reviewed the entirety of the search warrant affidavit, nor the question that was before the motion judge considering the defendant's motion to suppress on the ground that the warrant affidavit did not establish probable cause. See Commonwealth v. Two Juveniles, 397 Mass. 261, 264-265, 491 N.E.2d 234 (1986) (noting "traditional and salutary practice of this court to decline to answer a constitutional question" "in the abstract," and declining to answer question reported under Mass. R. Crim. P. 34 before circumstances had been established by trial).

Moreover, the parties each attached to their briefs to this court, and ask this court to review, evidence that was not part of the search warrant affidavit that was before the magistrate. See Commonwealth v. O'Day, 440 Mass. 296, 608, 798 N.E.2d 275 (2003) ("our inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit’ " [citation omitted] ). As such, the question is not properly reported under Mass. R. Crim. P. 34 ("If, prior to trial, or, with the consent of the defendant, after conviction of the defendant, a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein"). See E.B. Cypher, Criminal Practice and Procedure § 46:1 (4th ed. 2014). It is unclear on this record why the parties did not await the judge's decision and then proceed by filing applications for leave to pursue an interlocutory appeal pursuant to Mass. R. Crim. P. 15(a)(2), as appearing in 474 Mass. 1501 (2016), in the county court.

Reviewing the warrant...