John E. DeVito, Esq., of DeVito and Visconti, P.A.

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Drug crimes Archives

Warrantless Search of a Motor Vehicle

Oftentimes the police, after stopping a motor vehicle for a motor vehicle infraction, will request permission from the operator to search the motor vehicle. Usually something will trigger the request, such as, the smell of marijuana or some kind of furtive movement on the part of the driver or passenger. Such conduct often leads the police to believe that criminal activity may be afoot, such as illicit drugs or illegal firearms. Without more evidence of criminal activity, the police have no cause to search the vehicle and the driver does not have to give permission to the police to search his or her vehicle. The police may inquire verbally but beyond that they have no further recourse.The police may go so far as to request the driver and any passengers to step from the motor vehicle. They may conduct a pat frisk of the person and then conduct a pat frisk of the motor vehicle. If the police find evidence of a crime and arrest is likely to ensue. Once that event occurs those involved can argue that they were subject to an illegal arrest (the exit order itself was illegal), and any items found on his person or in his or her car should be subject to a motion to suppress. The motion to suppress essentially precludes the police from using at trial any evidence it seizes from a defendant or the defendant's vehicle, because such evidence was obtained illegally. The police had no cause to ask anyone to exit the vehicle and no cause to conduct a search of the person or the vehicle.


In 2008 the Massachusetts legislature decriminalized possession of less than 1 ounce of marijuana. If an offender 18 years of age or older possesses marijuana they are subject to a civil penalty of $100 and forfeiture of that marijuana. There is no other criminal or civil punishment or disqualification other than the fine and forfeiture.