COMMONWEALTH OF MASSACHUSETTS DISTRICT COURT DEPARTMENT

WORCHESTER COUNTY - DUDLEY DIVISION CASE NO. 1364-CR-003053

C O M M O N W E A L T H

v.

B E N M U R R A Y

Motion to Suppress

Now comes the defendant in the above-referenced matter and complains that he was

subjected to an illegal search and seizure and moves this Court to order that all property seized

pursuant search and subsequent arrest, be suppressed at any trial based on the above-referenced

complaint.

As grounds for motion:

1. The illegal search and seizure occurred on September 7, 2013, at approximately

6:20 p.m. in Sturbridge Massachusetts.

2. The search and seizure occurred before the arrest of the defendant.

3. The search and seizure was illegal because there was no probable cause for the

search. Further, the initial stop of the defendant was unlawful. The officer also

unlawfully extended the motor vehicle stop based on smell of marijuana, and

therefore unlawfully questioned and detained defendant.

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4. The search was conducted for based on the ignorance of a police officer of a new

law allowing for possession of medical marijuana.

5. No exigencies existed that would support the search.

6. The defendant did not consent to the search.

7. The search was not conducted incident to an arrest pursuant to G.L. c. 276, 1,

because the search was not made for the purpose of seizing fruits,

instrumentalities, contraband or other evidence of the crime for which the

defendant had been arrested in order to prevent its destruction or concealment.

8. The search was not a limited pat down conducted for the purpose of

determining whether the defendant was armed with a weapon.

WHEREFORE, the defendant avers that the aforesaid evidence was obtained in

violation of his rights to be secure from unreasonable searches and seizures as guaranteed by

Article XIV of the Massachusetts Declaration of Rights, the IV and XIV Amendments to the

United States Constitution and G.L. c. 276, 1.

Dated: April 14, 2014

Respectfully submitted, Marvin Cable, BBO#: 680968 Law Offices of Marvin Cable P.O. Box 1630 Northampton, MA 01061 E: law@marvincable.com P: (413) 268-6500 F: (888) 691-9850 ATTORNEY FOR DEFENDANT

COMMONWEALTH OF MASSACHUSETTS DISTRICT COURT DEPARTMENT

WORCHESTER COUNTY - DUDLEY DIVISION CASE NO. 1364-CR-003053

COMMONWEALTH

v.

BEN MURRAY

Memorandum in Support of Motion to Suppress

Respectfully submitted, Marvin Cable, BBO#: 680968 Law Offices of Marvin Cable P.O. Box 1630 Northampton, MA 01061 E: law@marvincable.com P: (413) 268-6500 F: (888) 691-9850

ATTORNEY FOR DEFENDANT

Dated: April 14, 2014

- ii -

Table o f Contents 1. Introduction ................................................................................................................................ 1 2. Statement of Facts ..................................................................................................................... 1 3. Argument .................................................................................................................................... 6

3.1. Massachusetts law allows for possession of medical marijuana. ............................... 6 3.2. There was no probable cause to search. ........................................................................ 8 3.3. Because there was no probable cause to search, this Court should suppress evidence obtained in search. ......................................................................................... 9 3.4. The detention of Defendant was unlawfully prolonged. ........................................... 9 3.5. Stop was wrongful. ......................................................................................................... 13

4. Conclusion ................................................................................................................................ 13

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1. Introduction

This memorandum is in support of Defendants motion to suppress evidence.

2. Statement of Facts

The Defendant suffers from chronic back-pain. Under the supervision of a physician,

Defendant uses medical marijuana to treat his pain. (See Ex. A. Aff. of Defendant.).

Early in evening, September 7, 2013, Defendants vehicle was stopped by Sergeant

Earl Dessert (DESSERT) of Sturbridge Police Department. (See Ex. A. Aff. of

Defendant; Ex. B. Police Report.) (The entire stop was video recorded. The video is

attached to this memorandum, and can be viewed, in full, online, at:

http://ow.ly/uJsHJ).

DESSERT stopped Defendant for allegedly violating M.G.L. Ch. 89 9. (See Ex.

B. Police Report. See also, http://ow.ly/vMRnJ ; Ex. C. Video Thumbnails).

DESSERT believed that MURRAY should have stopped at an intersection when the

light turned yellow. (See Ex. B. Police Report). DESSERT believed it was safe to do so,

and MURRAY decided ignore this, therefore violating M.G.L. Ch. 89 9 (Id.).

After the van was stopped, DESSERT approached MURRAYs window and

requested MURRAYs license and registration; discussed with MURRAY the reason for

the stop; then returned to his patrol car. (Id.).

DESSERT wrote MURRAY a warning for a red-light violation and citation for the

seat belt violation, and returned to Defendant. (Id.). Upon this second approach,

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DESSERT smelled an odor of fresh marijuana coming from the vehicle. (Id.). Instead of

completing the citation process, DESSERT questioned MURRAY, and eventually

seized his medical marijuana. In DESSERTs own words:

I asked Murray where he was coming from. Murray told me he was coming from a friends house. I asked Murray if he had anything illegal in the vehicle. Murray informed me he did not and went on to say that he only had a little marijuana on him but he had a medical marijuana certificate. I asked him how much marijuana and Murray stated he had 5-6 ounces on him. I asked Murray if I could see the marijuana. Murray subsequently reached down between his seat and pulled out a large plastic container and handed it to me. In the container was a large quantity of fresh raw marijuana.

(Id.).

Along with the marijuana, MURRAY handed DESSERT the appropriate

documentation to prove he was legally allowed to possess the cannabis. (Id.). DESSERT

explained:

Murray also handed me a piece of paper titled Recommendation for the Humanitarian Use of Marijuana in Massachusetts. This paper indicated that it was issued from a Dr. out of Northampton MA. Murray informed me that it was his medical marijuana permit and he was allowed to have up to 10 ounces on him. I have attached and incorporated this form herein. Murray also handed me a return receipt from the MA Dept. of Public Health. This had no other information besides that the DPH signed for a piece of mail on 6/24/13.

(Id.).

DESSERT ordered MURRAY out of his vehicle. While MURRAY sat on the

back bumper of his van, DESSERT returned to his patrol car with the container and

Doctors recommendation.

DESSERTs discussed the situation with a police officer who arrived on scene to

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provide DESSERT assistance. They discussed the legality of medical marijuana. All

officers on the scene were ignorant of the laws allowing for possession of marijuana for

medical use. The officers on the scene, including DESSERT, had no prior experience,

education, training, regarding new medical marijuana law.

Because DESSERT was unclear as to whether MURRAY was acting lawfully,

DESSERT placed a phone call to a person named, Ken. Audio can be heard, however,

only DESSERT can be heard in the conversion. The conversation lasts about 2 and a half

minutes. A video clip can be viewed at http://ow.ly/uJqbk. Here is essentially what

DESSERT is heard saying:

Hey Ken, it's Earl, how are you doing? Good. I'm on a road side stop right now and I have to run something by you if you have a second Alright, well I have about five ounces, six ounces of marijuana here. But he has a medical certificate out of Northampton, Mass. and I haven't seen anything come across yet that that has gone into play yet. Nothing is in affect yet? He has a note from a Doctor out of Northampton. He has a certified mail term receipt from the Department of Public Health. But that's all he has on him and he said that he was under the impression that he could possess up to 10 ounces. And I remember when I was reading the law a while ago, it was saying a 30 day supply. Yeah . . . He's got 6 ounces on him right now that he just handed over. I asked him if he had anything illegal in the vehicle and he said, "Just a little marijuana." I said, "How much?" He was like, "Five or six ounces." And I was like, "Yeah, why don't you give that to me." I think I have no choice here. That's a lot of marijuana. But my only hesitation is he sounded so legit with the documents and stuff. I'm like, did I miss something? Did nothing come in affect yet? Okay, then I'll be calling in a little bit. Absolutely. Yup that is what I was thinking. With that much, we (indiscernible) one thing to do with intent.

Based his knowledge of the law, and on his phone call with Ken, DESSERT

believed [t]he amount of marijuana handed to [him] was well over one ounce and [because

of this he] suspected that Murray was in possession of marijuana with the intent to

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distribute. DESSERT decided to search MURRAY. DESSERT based his probable

cause on one sole fact: MURRAYs possession of 5 - 6 ounces of medical cannabis.

Before arresting MURRAY for intent to distribute, he explained to MURRAY

why he was going to be searched. (A clip can be viewed at http://ow.ly/uJraV).

DESSERT began by saying, [t]he problem is, there is nothing in Massachusetts, yet, that

has come out that, that legally allows you to possess marijuana. (Id.).

MURRAY disagreed, [t]hat's not true That law was passed and you guys should

know that as police officers. I have my recommendation right there. It is under 10

ounces, Sir. (Id.).

Well heres the thing, DESSERT responded; with that amount of marijuana I

have probable cause to believe that you have possession with intent to distribute that. [

S]o that's -- what Im going on right now I don't understand what you are talking about

with this 10 ounce stuff. (Id.)

MURRAY asked, [s]o you are going to say that I am in trouble even though I am

following laws that have been passed by the citizens of Massachusetts? (Id.).

DESSERT replied, I'm saying right now that you are possessing marijuana with the

intent to distribute which is illegal. Okay? I'm not going to argue with you right now.

I'm just telling you where we stand. (Id.).

The conversation then ended. DESSERT walked to the vans passenger-side door,

opened the door, and began searching the vehicle. After briefly searching the vehicle,

DESSERT ordered to other officers on scene: book him. (Id.).

The other officers put handcuffs on MURRAY and placed him in the rear seat of

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DESSERTs police vehicle.

DESSERT then put a backpack found during search of MURRAYs vehicle onto

hood of DESSERTs police vehicle, and then emptied contents of the backpack onto the

hood.

After searching MURRAYs van, DESSERT returned to the police vehicle. Upon

DESSERTs return, MURRAY was in the backseat of the police vehicle. DESSERT then

drove MURRAY to the Sturbridge Police Department. During the ride, DESSERT spoke

to MURRAY about the arrest. (Again, for convenience a video clip of the following are

accessible online, at http://ow.ly/uJrSz. This clip is rather short, only 43 seconds.)

DESSERT essentially is heard telling MURRAY that DESSERT believed that

MURRAY believed he was acting lawfully.

Alright so here is the deal, Ben. I'm going to take you back, process you. I'm not going to ask for any bail on ya. I think, to be honest, I think you do believe that what you have is legal. I believe it is not because there has been nothing that came across my desk saying this yet. So I'm not going to ask for bail $40 on you. I don't know what the clerks going to say but, um. And if you end up being right, which I don't think, but if you are, then they'll dismiss the charges obviously.

(Id.).

After the short ride, DESSERT begins the booking process. The booking process

provides no new material issues, however, DESSERT is heard, once again, evidencing his

lack of knowledge regarding the medical marijuana law, and his basis for probable cause to

search.

At one point, Defendant questions Officer about his knowledge of the law. Officer

responds, that if it were in effect we would have gotten a memo. (See

http://ow.ly/vMSuk)

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In the end, MURRAY was charged with intent to distribute a Class D (M.G.L. Ch.

94C, Sec. 32C.) and possession of a Class C (M.G.L. Ch. 94C, Sec. 34(E)).

3. Argument

The was no probable cause to search Defendant. DESSERT believed he had

probable cause to search because Defendant possessed 5 - 6 ounces of cannabis. Indeed, in

the past, possession such an amount of marijuana may alone provide sufficient basis for

probable cause to search possessor for the crime of intent to distribute a class D. See

Commonwealth v. Roman, 414 Mass. 642, 645, 609 N.E.2d 1217, 1219 (1993) (possession

of larger amount of illegal drugs raises inference of intent to distribute). However, no

longer does possession of such constitute probable cause to search for intent to distribute.

Under medical marijuana laws, Defendant may lawfully posses 5 6 ounces. Mere

possession of 5 - 6 ounces of marijuana, by a qualified medical marijuana patient, is not

indicative criminal activity.

The was no probable cause to search defendant. The officers search was based on

ignorance of the new law and all items obtained by police action should be suppressed

3.1. Massachusetts law allows for possession of medical marijuana.

Since January 1, 2013, possession of marijuana in proper circumstances is legal. See

Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana,

(herein statute), Section 1 (there should be no punishment under state law for qualifying

patients, physicians and health care professionals, personal caregivers for patients, or

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medical marijuana treatment center agents for the medical use of marijuana, as defined

herein.); see also, Department of Healths Regulation, 105 CMR 725.000, (herein

regulations) (enacted on May 8, 2013, implements Chapter 369 of the Acts of 2012).

Under the new law, a qualifying patient shall not be subject to arrest or prosecution,

or civil penalty, for the medical use of marijuana provided that (1) he possesses no more

marijuana than is necessary for the patient's personal, medical use, not exceeding 10 ounces

unless certified by physician, and (2) presents his registration card to any law enforcement

official whom questions the patient regarding use of marijuana. See Chapter 369 of the Acts

of 2012, Section 4, (a) & (b); Chapter 369 of the Acts of 2012, Section 2 (M) (Sixty-day

supply means that amount of marijuana that a qualifying patient would reasonably be

expected to need over a period of sixty days for their personal medical use.); 105 CMR

725.004 (Sixty-Day Supply means that amount of marijuana, or equivalent amount of

marijuana in MIPs, that a registered qualifying patient would reasonably be expected to

need over a period of 60 calendar days for his or her personal medical use, which is ten

ounces, subject to 105 CMR 725.010(I).); 105 CMR 725.010(I) (certifying physician

may determine and certify that a qualifying patient requires an amount of marijuana

exceeding 10 ounces as a 60-day supply and shall document the amount and the rationale

in the medical record and in the written certification. For that qualifying patient, that

amount of marijuana constitutes a 60-day supply.).

On dates prior to the Department of Healths acceptance of applications for

qualifying patient registrations, to have attained the status of a qualified patient, a patient

must have obtained a written certification from a physician for a debilitating medical

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condition. See Chapter 369 of the Acts of 2012. Section 13. (Until the approval of final

regulations, written certification by a physician shall constitute a registration card for a

qualifying patient.); 105 CMR 725.015 (C) (A qualifying patient who received written

certification from a physician prior to the effective date of 105 CMR 725.000, or prior to

the Department accepting applications for qualifying patient registrations, and who used

that written certification as his or her qualifying patient registration card, must apply for a

registration card according to the procedures set out in 105 CMR 725.015 no later than

January 1, 2014, unless otherwise specified by the Department; however the initial

certification will remain valid until the application for the registration card is approved or

denied by the Department.).

The definition of written certification under the statue means a document signed by

a licensed physician, stating that in the physician's professional opinion, the potential

benefits of the medical use of marijuana would likely outweigh the health risks for the

qualifying patient. Such certification shall be made only in the course of a bona fide

physician-patient relationship and shall specify the qualifying patient's debilitating medical

condition(s). See Chapter 369 of the Acts of 2012, Section 2 (N).

3.2. There was no probable cause to search.

No facts supported probable cause to believe MURRAY had the intent to distribute

marijuana. All facts indicated that MURRAY was a qualified patient and was acting

lawfully under the law. And, therefore there should be no punishment under state law.

MURRAYs possession of 5 -6 ounces of marijuana does not support probable cause to

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believe such possession is criminal.

DESSERTs ignorance of the medical marijuana law does not excuse the his actions.

Searches premised on police officer's mistake of law, even a reasonable, good-faith mistake,

are generally held to be unconstitutional See Commonwealth v. Rivas, 77 Mass. App. Ct.

210, 216217 & n. 6, 929 N.E.2d 328 (2010) (stops premised on police officer's mistake of

law, even a reasonable, good-faith mistake, are generally held to be unconstitutional), and

cases cited therein. See generally, Commonwealth v. Chown, 76 Mass. App. Ct. 684, 696, 925

N.E.2d 562 (2010) (Trainor, J., dissenting) (quoting from United States v. Chanthasouxat,

342 F.3d 1271, 1280 [11th Cir. (2003) ]) (even though the officer may have acted in good

faith, the good faith exception to the exclusionary rule ... should not be extended to excuse

a vehicular search based on an officer's mistake of law ), further appellate review granted,

457 Mass. 1107, 931 N.E.2d 468 (2010).

3.3. Because there was no probable cause to search, this Court should suppress evidence obtained in search.

When there is no probable cause that a crime is being committed, courts cannot

condone such an intrusive measure as a warrantless search. Commonwealth v. Porter P.,456

Mass. 254, 274 n. 19, 923 N.E.2d 36 (2010). Since there was no probable cause that

MURRAY was committing a crime, the items found during search should be suppressed.

3.4. The detention of defendant was unlawfully prolonged.

Furthermore, DESSERT should have released MURRAY from the traffic stop

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upon completion of citation process. Detaining a vehicle to issue a traffic citation, must last

no longer than reasonably necessary to effectuate the purpose of the stop, barring other

reasons to detain. See Commonwealth v. Garden, 451 Mass. 43 , 46 (2008). In order to

expand a threshold inquiry of a motorist and prolong his detention, an officer must

reasonably believe that there is further criminal conduct afoot. Commonwealth v. King, 389

Mass. 233, 243, 449 N.E.2d 1217 (1983). DESSERT expanded the threshold inquiry of

stop and prolonged MURRAYs detention based on the smell of marijuana. The smell of

marijuana alone is not a fact that reasonably indicates criminal conduct is afoot.

For purposes of criminal possession of marijuana, standard to justify either

reasonable suspicion or probable cause now requires at least two additional facts to

support reasonable suspicion of actual criminal activity: (1) a fact suggesting

possession of over an ounce of marijuana and (2) a fact suggesting non-medical use of

marijuana.

Before decriminalization of marijuana, any odor, indicating the presence of

marijuana, alone may provide sufficient fact to meet the threshold of either reasonable

suspicion or probable cause. See Commonwealth v. Daniel, 464 Mass. 746, 751 (2012)

(Prior to the passage of the 2008 initiative, odor of marijuana alone can supply probable

cause to believe that marijuana is nearby, and therefore probable cause to search for

contraband. quoting Commonwealth v. Garden, 451 Mass. 43, 48 (2008)).

After decriminalization, where the status of possessing one ounce or less of

marijuana was converted to a civil violation from criminal, in order to justify reasonable

suspicion or probable cause, there must be at least an additional fact suggesting actual

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criminal activity, i.e., a specific and articulable fact from which one can reasonably infer

possession of over an ounce of marijuana. Commonwealth v. Cruz, 459 Mass. 459 (2011).

The Court in Cruz held that smell of marijuana, indicating the presence of marijuana, alone

would not provide reasonable suspicion of criminal activity, nor probable cause to search.

459 Mass. 459, 472. (Given our conclusion that G. L. c. 94C, 32L-32N, has changed

the status of possessing one ounce or less of marijuana from a crime to a civil violation,

without at least some other additional fact to bolster a reasonable suspicion of actual

criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of

criminal activity to justify an exit order.).

Interestingly, the Cruz court, however, refused the defendants request to further

increase the required standard of reasonable suspicion by extending Courts line of cases

concerning the reasonable suspicion standard wherein the items are not necessarily criminal

to possess. 459 Mass. 459, 473 (2011) See e.g., Commonwealth v. Landry, 438 Mass. 206 ,

210 (2002) (Possessing a hypodermic needle is not necessarily a crime; licensed

physicians and private citizens may lawfully possess hypodermic needles); Commonwealth

v. Alvarado, 423 Mass. 266 , 270 (1996) (carrying a concealed weapon is not, standing

alone, an indication that criminal conduct has occurred or is contemplated);

Commonwealth v. Toole, 389 Mass. 159 , 163 (1983) (carrying a .45 caliber revolver is not

necessarily a crime).

Cruz reasoned that these cases are inapposite. 459 Mass. 459, 473 (2011).

[I]n proper circumstances, possession of a licensed gun or a hypodermic syringe is legal. In contrast, possession of marijuana, in any amount, remains illegal; decriminalization is not synonymous with legalization. See G. L. c.

- Page 12 of 14 -

94C, 31; G. L. c. 94C, 34. Because marijuana remains unlawful to possess, any amount of marijuana is considered contraband. See Black's Law Dictionary, supra at 365 ("contraband" defined as "[g]oods that are unlawful to import, export, produce, or possess").

Id.

Since January 1, 2013, however, possession of marijuana, in proper circumstances, is

legal. The 2012 initiative, An Act for the Humanitarian Medical Use of Marijuana, provides

that there should be no punishment under state law for qualifying patients, physicians and

health care professionals, personal caregivers for patients, or medical marijuana treatment

center agents for the medical use of marijuana, as defined herein. Section 1. Purpose and

Intent.

Accordingly, indicia supporting the inference of possession of marijuana over an

ounce of marijuana, no longer indicates the presence of contraband. The standard of

what is required to provide reasonable suspicion has accordingly changed. The Court

may now extend the line of cases supra at 11, because now, in proper circumstances,

possession of marijuana is legal. Accord Commonwealth v. Landry, 438 Mass. 206 , 210

(2002) (The mere possession of an item that has many lawful applications but may be

contraband in other circumstances does not, by itself, constitute probable cause to believe

that the possession is illegal. Citing Commonwealth v. Couture, 407 Mass. 178, 552 NE 2d

538 (1990) (Despite a statute criminalizing the carrying of a firearm, the statute lists four

exceptions to this general rule, two of which include having in effect a license to carry

firearms. Therefore a police officer's knowledge that an individual is carrying a handgun, in

and of itself, does not furnish probable cause to believe that the individual is illegally

carrying that gun. Mere possession of a handgun was not sufficient to give rise to a

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reasonable suspicion that the defendant was illegally carrying that gun.)).

Therefore, for purposes of criminal possession of marijuana, standard to justify

either reasonable suspicion or probable cause now requires at least two additional facts

bolstering reasonable suspicion of actual criminal activity, (1) a fact suggesting possession

of over an ounce of marijuana and (2) a fact suggesting non-medical use of marijuana.

In applying this standard, DESSERT was not justified in questioning the defendant

about the smell marijuana, and was not justified in expanding the threshold inquiry and

prolonging MURRAY detention. All items that were obtained from the subsequent search

should be suppressed.

3.5. Stop was wrongful.

As can be see in http://ow.ly/vMRnJ and Exhibit C, Defendants white van did

not enter the intersection when the light was red. And there was no indication that the

Defendant could safely stop for red light, as it appeared that the light just turned yellow

when van entered intersection. Defendant did not violate MGL Ch. 89 9.

4. Conclusion

For the reasons stated above, there was no probable cause to search defendant, and

all items found in search should be suppressed.

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Dated: April 14, 2014

Respectfully submitted, Marvin Cable, BBO#: 680968 Law Offices of Marvin Cable P.O. Box 1630 Northampton, MA 01061 E: law@marvincable.com P: (413) 268-6500 F: (888) 691-9850 ATTORNEY FOR DEFENDANT

TABLE OF CONTENTS

Exhibit A: Aff. of Defendant .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Exhibit B: Police Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Exhibit C: Video Thumbnails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Exhibit Page 1

EXHIBIT A: Aff. of Defendant

Exhibit Page 2

C o m m o n w e a l t h O f M a s s a c h u s e t t sD i s t r i c t C o u r t i n D u d l e y

STURBRIDGE P.D.,

Plaintiff,

V .

BEN MURRAY,

Defendant

C r i m i n a l A c t i o n N o . : 1 3 6 4 C R 0 0 3 0 5 3

A F F I D A V I T O F D E F E N D A N T I N S U P P O R T O F D E F E N D A N T ' SM O T I O N T O S U P P R E S S E V I D E N C E

I, Ben Murray, the Defendant in the above-numbered complaint, hereby state the

following is true to the best of my knowledge and belief:

1. On September 7, 2013 during the later afternoon hours, I was operating a motor

vehicle on Route 20 West in Sturbridge, MA. As I came to a dual set of lights

roughly 100 yards apart in front of the Motel 8 the first set of lights was just

turning yellow so I continued through to the second set of lights slowing down to

stop as it was turning red.

2. 1 stopped behind another vehicle for roughly ten to fifteen seconds waiting for

the light to turn green and as I looked in the driver side mirror to proceed, I saw

a set of flashing lights so 1 started to pull over.

3. At approximately 6 PM I was stopped by a member of the Sturbridge Police

Department. The Officer approached my vehicle and told me to pull off of Route

20 into a restaurant parking lot. I pulled off of Route 20 as instructed and gave the

Officer my license and registration. As I gave him my information he said to me

"I his stop is being recorded." He went to his vehicle and returned briefly with a

ticket in hand and said "I gave you a warning for the red light violation and $25.00

Page 1 of 3

Exhibit Page 3

for no seatbelt.", then asked "Are there any drugs in the vehicle?" I instantly

replied "yes, some marijuana." He asked how much and I replied "six to seven

ounces" and advised that I am a medical marijuana patient and retrieved my

Doctor's rtH:ommendation and mailed receipt and handed it to him advising that I

arn allowed to possess ten ounces. He then replied "What law^?" He asked me to

see the nuuljuana and I gave him my Tupperware with my medication. He then

replied "How am I supposed to know that this is ten ounces?" Tlien he told me to

exit the vehicle. At that point a couple of more officers showed up and one of

them gave me a sobriety test.

4. At that time, a different officer conducted a search of my motor vehicle, person

arid back-pack in which I carry my medication and accessories. At that point they

plv-vd rac under arrest and brought me to the Sturbridge Police station and

towed my vehicle.

5. At no time did the officer show me a warrant for my arrest or a search warrant for

me and the automobile 1 was operating.

n. Hierefore, I believe that neither an arrest warrant nor a search warrant existed

that authorized the arrest or seaixh of my person. I also believe that a search

warrant did not exist that authorized the search of the automobile I was

operating.

7. Under Massachusetts law, 369 Mass Acts, I am informed and believe that I m

allowed to oosses a sixty-day supply of medical marijuana and do so without

being subject to atrest or prosecution. I have satisfied all requirements under that

law, and also the new regulations.

Page 2 of 3

Exhibit Page 4

Signed under the pains and penal t ies of per jury th is day of 20

Ben Murray, Defendant

C o m m o n w e a l t h o f M a s s a c h u s e t t s^ ^ s s

The forgoing instrument was acknowledged by me this ^ ^ day ofCjHoVQ^ 20M^ viAra-i^ ^ ho is personally known by me or who has

produced: T> * as identification .

K - A aState of Notary's Commission

IviJgvVa ^Printed Name of Notary

f c - ^ I - 2 - C 2 , 0Notary's Expiration

Notary Identification Number (optional)

Notary's Seal

Page 3 of 3

Exhibit Page 5

Exhibit Page 6

Exhibit Page 7

EXHIBIT B: Police Report

Exhibit Page 8

Sturbridge Police Department Arrest Report

Arrest #: 13-508-AB. Call #: 13-19787

Date/Time Reported : 09/07/2013 @ 1802 Arrest Date/Time: 09/07/2013 @ 1830

Booking Date/Time: 09/07 /2013 @ 1845 OBTN: TSTR201300508

Court: DUDLEY DISTRICT COURT Court Date: 09/09/2013 @ 0830

Reporting Officer: SERGEANT EARL DESSERT Assisting Officer: PATROLMAN DANIEL HEMINGWAY

Booking Officer : PATROLMAN DAVID FORTIER Approving Officer: SERGEANT EARL DESSERT

Signature:

ail For Court : DUDLEY DISTRICT COURT Personal Recognizance Set 40 .00 Personal Recognizance Set

Bail Set By : CANO KENNETH CANDITO Bail Unpaid :

Signature:

Set: 09 /07 /2013 @ 1920

Page: 1 12/26/2013

# DEFENDANT ( S) SEX RACE AGE SSN PHONE

1 MURRAY, BEN R 36 MONSON RD WALES MA 01081- 9714

Military Active Duty: N HEIGHT : 602

BODY: NOT AVAIL. DOB :

LICENSE NUMBER: PCF #: 2263394

Home Phone

WEIGHT: 180

M w

HAIR : BROWN EYES : BROWN COMPLEXION : NOT AVAIL .

PLACE OF BIRTH : WARE, MA ETHNICITY: UNKNOWN

(Primary)

GLASSES WORN : NO

Exhibit Page 9

Sturbridge Police Department Arrest Report

Arrest #: 13-508-AR Call #: 13-19787

Page: 2 12/26/2013

# DEFENDANT(S) SEX RACE AGE SSN PHONE

RIGHTS ADVISED BY: SERGEANT EARL J DESSERT PHONE USED: N

ARRESTEE SECURED: N

FINGERPRINTED: Y PHOTOGRAPHED: Y

SUICIDE CHECK: Performed PERSONS: State&Federal

NCIC VEHICLE CHECK: Not Performed INJURY OR ILLNESS: N

DATE/TIME: 09/07/2013 @ 1846

# OFFENSE (S) ATTEMPTED TYPE

LOCATION TYPE: Highway/Road/Alley/Street 452 MAIN ST @ FAIRGROUNDS RD

Zone: SOUTH OF RTE 20

STURBRIDGE MA 01566

1 DRUG, DISTRIBUTE CLASS D 94C/32C/A 94C 32C

OCCURRED: 09/07/2013 1802 CRIMINAL ACTIVITY: Distributing/Selling

2 DRUG, POSSESS CLASS C 94C/34/E 94C 34

OCCURRED: 09/07/2013 1802 CRIMINAL ACTIVITY: Possessing/Concealing

N Misdemeanor

N Misdemeanor

# VEHICLE (S) YEAR MAKE STYLE COLORl COLOR2 REG VALUE

1 E250 2006 FORD

STATUS: Suspected OWNER: MURRAY, BEN R

VIN: ............. ..

VN

TOWED TO: STURBRIDGE SERVICE CENTER 131 RTE STURBRIDGE MA 01566

TOWED BY: STURBRIDGE SERVICE CENTER

WHI MA-- $500.00 DATE: 09/07/2013

TOWING CHARGES:

# DRUG(S) PROPERTY # STATUS

1 MARIJUANA 13-344-PR Seized (Not Previously Stolen)

QUANTITY: 13.290 (Ounces) VALUE: $3,322.50 DATE: 09/07/2013 OWNER: MURRAY, BEN R

2 HASHISH 13-345-PR Seized (Not Previously Stolen)

QUANTITY: 4.000 (Ounces) VALUE: $100.00 DATE: 09/07/2013 OWNER: MURRAY, BEN R

Exhibit Page 10

Sturbridge Police Department Arrest Report

Arrest #: 13-508-AR Call #: 13-19787

Page: 3 12/26/2013

# OTHER PROPERTIES PROPERTY # STATUS

1 LEDGERS 13-346-PR Evidence (Not Nibrs Reportable) QUANTITY: 1 VALUE: $0.00 SERIAL #: NOT AVAIL

DATE: 09/07/2013 OWNER: MURRAY, BEN R

2 CASH 13-347-PR Seized (Not Previously Stolen) QUANTITY: 1 VALUE: $550.00 SERIAL #: NOT AVAIL

DATE: 09/07/2013 OWNER: MURRAY, BEN R

3 SCALE, GRINDER, 2 PIPES, BAGGIES 13-348-PR Seized (Not Previously Stolen) QUANTITY: 1 VALUE: $20.00 SERIAL #: NOT AVAIL

DATE: 09/07/2013 OWNER: MURRAY, BEN R

4 DVD OF TRAFFIC STOP 13-481-PR Evidence (Not Nibrs Reportable) QUANTITY: 1 VALUE: $5.00 SERIAL #: NOT AVAIL

DATE: 12/01/2013

Exhibit Page 11

Sturbridge Po1ice Department NARRATIVE FOR SERGEANT EARL J DESSERT

Ref: 13-508-AR Entered: 09/07/2013 @ 2043

Modified: 09/08/2013 @ 1625 Approved: 09/08/2013 @ 1625

Entry ID: 213 Modified ID: 213 Approva1 ID: 213

Page: 1

On Saturday, September 7, 2013 at about 1802 hours, I was stationary at Rt. 131 and Rt.20 (both public ways) when I observed a white Ford Van (MA Reg ) traveling westbound passing the intersection of Rt. 131. As the vehicle approached the intersection the light was yellow, this allowing the operator sufficient time to stop safely. The operator did not attempt to stop nor did he slow, he proceeded to travel through the light and as he did the light turned red, this being a violation ofMGL 89/9. It should be noted that traffic was heavy due to the Brimfield Flea Market.

I subsequently initiated a traffic stop and the vehicle came to a stop in Bentley's parking lot. I approached the driver's side and requested a license and registration from the operator. The operator produced a MA License that identified him to be Ben Murray. I asked Murray if he knew why he was being stopped. Murray informed me he did not. I informed Murray that he went through a red light. Murray informed me it was yellow. I asked Murray if he was wearing his seat belt. Murray informed me he was not. It was at this time I returned to my patrol car and wrote Murray a written warning for the red light violation and citation for the seat belt violation.

Upon approaching the vehicle a second time, I smelled an odor of fresh marijuana coming from the vehicle. I asked Murray where he was coming from. Murray told me he was coming from a friends house. I asked Murray if he had anything illegal in the vehicle. Murray informed me he did not and went on to say that he only had a little marijuana on him but he had a medical marijuana certificate. I asked him how much marijuana and Murray stated he had 5-6 ounces on him. I asked Murray if I could see the marijuana. Murray subsequently reached down between his seat and pulled out a large plastic container and handed it to me. In the container was a large quantity of fresh raw marijuana. (later field weight of 11.4 ounces). The amount of marijuana handed to me was well over one ounce and I suspected that Murray was in possession of marijuana with the intent to distribute.

Murray also handed me a piece of paper titled "Recommendation for the Humanitarian Use of Marijuana in Massachusetts". This paper indicated that it was issued from a Dr. out of Northampton MA. Murray informed me that it was his medical marijuana permit and he was allowed to have up to 10 ounces on him. I have attached and incorporated this form herein. Murray also handed me a return receipt from the MA Dept. of Public Health. This had no other information besides that the DPH signed for a piece of mail on 6/24/13.

I requested Murray to exit the vehicle and requested a second patrol vehicle to my location. It was at this time I also noticed a partially burnt marijuana joint on the floor of the vehicle. Officer Lombardi arrived on scene and I instructed him to give Murray SFST's. Murray passed these tests.

Upon searching the vehicle, I located a backpack that was located in the area where the plastic container of marijuana was. In that backpack I located the following items: 1. Cannabis Now & Green Leaf magazine- These magazines are highlight cultivation of marijuana. 2. Plastic bag with marijuana (1.7 ounces) 3. Zip lock bag with marijuana (0.9 ounces) 4. 2 separate plastic bags with marijuana (0.2 ounces) 5. 2 additional plastic bags with marijuana (both weighing 0.4 ounces) 6. Plastic container with Hash ( 4 grams) This being a CLASS "C" substance 7. Ledgers with numbers and weights 8. Family Pack of Zip lock bags 9. scale

Exhibit Page 12

Sturbridge .Police Department NARRATIVE FOR SERGEANT EARL J DESSERT

Ref: 13-508-AR Entered: 09/07/2013 @ 2043

Modified: 09/08/2013 @ 1625 Approved: 09/08/2013 @ 1625

10. Marijuana grinder

Entry ID: 213 Modified ID: 213 Approval ID: 213

Page: 2

Based on my training and experience I know that drug dealers will often keep ledgers to track their product and profits. I also know that drug dealers will often carry plastic bags and scales on them for weighing and distributing their product. Based on the fact that there was a large quantity of marijuana accompanied by numerous other bags, empty baggies , Ledgers and a scale I have Probable Cause that Murray was in possession of marijuana with the intent to distribute it. I subsequently requested Officer Lombardi to place Murray under arrest.Once Officer Lombardi conducted a search of Murray he located $550 in cash on Murray. This money was later seized and tagged into evidence and will be submitted to the District Attorney for the Asset Forfeiture process.

I The vehicle was inventoried by Officer Lombardi and Officer Hemingway. During the inventory two marijuana pipes were located along with a marijuana joint in the front seat area. The vehicle was towed by Sturbridge Service Center.

Murray was transported to the police station where he was booked in accordance with policy. Murray was read his Miranda and acknowledged that he understood his rights. Murray opted not to speak with us regarding this incident. While I was processing the evidence Murray informed me that he makes his own hash. This was an unprovoked statement.

All evidence collected was tagged, photographed and secured into evidence.

It should be noted that Murray was cooperative and polite throughout the process.

** Portions of this report have been redacted **

Exhibit Page 13

Sturbridge Police Department Images Associated with 13-508-AR

Exhibit Page 14

Sturbridge Police Department Images Associated with 13-508-AR

Exhibit Page 15

Sturbridge Police Department Call Number ?rinted: 09/07/2013

E" - .. Date: 09/07 /2013 Saturday

Cal.1 Number Time Cal.l Reason Action

'.L3-19787 1802 Initiated - M/V STOP CITATION/BY-LAW ISSUED Call Taker: ~ocation/Address:

Initiated By: Dnit:

Unit:

Unit:

Unit:

DISPATCHER TONI.AH L M..li...LONEY 452 M..~IN ST @ FAIRGROUNDS RD 7 - SERGEANT EA...~L J DESSERT 7 SERGEANT EARL J DESSERT

5 PATROL..J\1.1.."Zilir JOSEPH D LOM3ARDI Arvd-18:02:00 Clrd-19:30:22

Disp-18:10:09 Arvd-18:10:23 Clrd-18:48:44 3 PATROLMAN DANIEL J HEMINGWAY Disp-18:10:49 Arvd-18:13:56 Clrd-18:48:35 MCl PATROL..lVJA_N DAVID T FORTIER Disp-18:45:35 Arvd-18:45:38 Clrd-19:30:39

Priority

2

Vehicle: WHI 2006 FORD V"N E250 Reg: PAN J:vl_:li 93VK58 VIN: 1FTNE24W76H..;ll,..27935

Page:

Towed: Operator:

For: A...'R.REST By: STURBRIDGE SERVICE CENTER To: STURBRIDGE SERVICE CENTER MURK~Y, BEN R @ 36 MONSON RD - WALES, M._~ 01081-9714 OLN: MA S51108011

Refer ~o Citation: R3671164 Owner: MURRJi._y, BEN R @ 36 MONSON RD - W~..LES, Mt"~ 01081-9714

Narrative: 09/07/2013 1828 DISPATCHER TONLlUI L MALONEY Modified By: 09/07/2013 1930 DISPATCHER TONI.AHL MALONEY

(1824) 340 - NEXT IN LINE, SAB CONTACTED (1825) 213 - ONE UNDER AT THIS TIME (1826) 213 - CODE 5/7 WITH 1

BEG 5056 (1828) IN STATION, BEG TAPE (1928) M.n..LE p__~~TY SECURED IN CELL 7, END TAPE

Refer To Arrest: 13-508-A...~ Arrest: MURRAY, BEN R

Address: 36 MONSON RD WALES, :M..~ DOB: 03/12/1979

Charges: DRUG, DISTRIBUTE CLASS D DRUG, POSSESS CL.~SS C

l

Exhibit Page 16

:;;i ii' u

~ >' Q_ 0 0 1--0: ::i 0 0 a: 0 ::J > 0

v I 0 '-"'~~-=~-""" ..... ~~, L

~ 0 R M v

0 F ti;d)

CPL VEHIG)-E DYES ~O

SENDER:-COMPEETE THIS SECTION

11 Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery ls desired.

!ii Print your name and address on the reverse so that we can return the card to you.

11 Attach this card to the back ot the mailpiece, or on the front if space permits.

1. Article Addressed to:

r"\ A;Sec.c"'- v-Sc fu 'D~+-- \)~\; '-~ < "'--\ .._,_

,}._')CJ kJa.' k ..... s 1-e ,{ St ' So ITT"" I v'li\ r+ . a!) ( (J 0

2. Article Number

COMPLETE: THIS SECTION ON DELIVERY

D Agent D Addressee

!f YES, enter delivery address below:

D Express Mail 3. Senrice Type

~Certified Mail D Registered D Insured Mail

D Return Receipt for Merchandise 0 C.O.D.

4. Restricted Delivery? (Extra Fee) DYes

(f ransfer from seNice label) 7012 2920 DODD 8755 7544 PS Form 3811 , February 2004 Domestic Return Receipt

Exhibit Page 18

,JIU Griffin, MD PedalMed.com

41 Locust Street, Northampton, MA 01060 413"588-6848

Massachusetts Department of Publlo Heal!h 250 Washington Street Boston, MA 01208

To Whom H May Concern:

r would like lo apply enroll In t11e medical marijuana . and logether, we have determined that I suf/er fro program. J have been evaluatEl\1 by Jill G rlffln MD risks versus benefits of using medlcal marijuana~~ deblflta\lng medJca/ condition. I have revle~ed th program. I realize that Dr. Grlflln oan't "prescribe" r ~Ir. Griffin and I am making a choice to enroll In tl1:

na1 uana, she may only "recommend" ii' f ackno I d h s use.

we ge I e tlmltallons on my aulhorlzallon t The Commonwealtt1 o/ Massachuseus. o possess and use marijuana for medical purposes in

I sites! by signing below that I will nol engage In the diversion ol '/ man uana.

I attest by s!gnlng below that I understand II marijuana for niedlcal use are app!tcable on~ye ~~~tel cMllons conferred by lhe Act for possesslon of

1 n assachuseUs.

I a Ile st by signing below that the Stale or Massad1use!ts J s my primary state of residence

1 sltest by signing below that I under 1 dale of Issue 8 and that my registration Is vaUd for a perlod of 0,, y 1 e ear rom the

I aUeat by signing below ll1at I am J tJ - ----years of age.

Patient Last Name: fV) v.,r n;...----------Pallent FJtsl Name: _}.Se ~-----Dale of Birth: _J_J~}'1 'I ____ . ___ _ Ad'""' ,3,,,6'--'M=''"'''"-."'"'--1i";_J~. __bl.ill_ \.- c._.\.e ~-"A"--_cOlli!,!Oco~o_I _ Phone: t//3-ll..&'-S"b.3? Emall: _o/L,/mf;

--- -~ -- -------

TOWN OF STURBRIDGE POLICE DEPARTMENT Office of the Chief of Police

THOMAS J. FORD ill 346 Main Street, Sturbridge, MA 01566

Office (508) 347-2525 Fax (508) 347-7904 Sturbridgepd@charter.net ___ .. -

IMPOUNDED MOTOR VEIDCLE INVENTORY CONTROL SHEET

Report Number: Date: .fh Vehicle Operator: Dl'r" i /)YI'!" l"

TOWN OF STURBRIDGE POLICE DEPARTMENT Office of the Chief of Police THOMAS J. FORD, III

346 Main Street, Sturbridge, MA 01566 Office (508) 347-2525 Fax (508) 347-7904

Sturbridgepd@charter.net

Name: //lu // c-'1 Last

Miranda Warning:

Statement of Rights

First

1. You have the right to remain silent.

Middle

2. Anything you say can and will be used against you in a court of law.

3. You have the right to talk to a lawyer for advice before we ask you any questions and to have him/her present with you during questioning.

4. If you cannot afford a lawyer, one will be appointed for you before questioning if you wish.

5. If you decide to answer questions now without a lawyer present, you will still have the right to stop the questioning at any time until you talk to a lawyer. v'.

6. DoyouLllltlerstand-what I have readto you? 11' ~ .I 7. Having these rights in mind do you wish to talk to me now? __jj!_!:!.

RIGHT TO A TELEPHONE General Laws Ch 276, Sec 33A: The police official in charge of the station or other place having a telephone wherein the person is held in custody, shall permit the use of the telephone at the expense of the arrested person, for allowing the arrested to co=unicate with his family or friends, or arrange for release on bail, or engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to use the telephone, and such use shall be permitted within one hour thereafter.

lJ#i Z:. ~;;fue The Mission of the Sturbridge Police Department is to work in partnership with the Community to protect

life and property, solve neighborhood problems, and enhance the quality of life in our town.

The Town of Sturbridge is an Equal Opportunity Organization Exhibit Page 21

EXHIBIT C: Video Thumbnails

Exhibit Page 22

Exhibit Page 23

Exhibit Page 24

Exhibit Page 25

Exhibit Page 26

Exhibit Page 27

Exhibit Page 28

Exhibit Page 29

Exhibit Page 30