Patrolling in plain clothes and an unmarked Ford Crown Victoria automobile, the officers drove down Sunnyside Street at approximately 5 P. M., and saw a vehicle parked in front of a fire hydrant. The vehicle's windows were rolled down and it was light outside. Inside, the officers could see a driver and the defendant, who was sitting in the front passenger seat. As the officers drove down the street, Officer Diaz saw the driver light a small, inexpensive cigar that is commonly known to mask the odor of marijuana smoke.

Both officers recognized the defendant as a neighborhood resident who lived on Sunnyside Street. Officer Morgan testified that he had previously seen the defendant smoking a marijuana "blunt," but the defendant was not known to either officer as a dangerous person, involved in any gang-related activity or violence. Neither officer was aware that either the driver or the defendant had ever been arrested. In fact, Officer Diaz had spoken to the defendant, a nineteen year old man, on several previous occasions about remaining out of trouble. Diaz had suggested ways for the defendant to exempt himself from the "crowd" and encouraged him to do more than "hanging out."

Pulling up next to the car, Officer Morgan asked the driver to explain why he was parked in front of the fire hydrant, a civil motor vehicle violation. See Traffic Rules and Regulations of the City of Boston art. 4, § 1(6) (2003). The driver replied that he was waiting for his uncle, who lived in a house on Sunnyside Street. While the officers were stopped next to the car, Officer Morgan saw the defendant smoking a cigar. At this point, both officers got out of their unmarked cruiser and walked toward the car. Officer Morgan approached the driver's side, and Officer Diaz went to the passenger side. From the driver's side, Officer Morgan could smell a "faint odor" of burnt marijuana.

Officer Morgan noticed that the driver was "very nervous, had trouble breathing" and "it almost looked like he was panicking." When asked whether he had been smoking marijuana, the driver replied that he had smoked "earlier in the day." Morgan asked the driver if there was anything inside the car that the officers "should know about." The driver responded, "No." Meanwhile, Officer Diaz saw that the defendant appeared "nervous" and made little eye contact with Diaz, choosing to look straight ahead or down. Neither officer saw any contraband or weapons within plain view in the car. There was no evidence that either the driver or the defendant made any furtive gestures or threatening movements. [FN6]

The officers neither cited the driver for parking in front of a fire hydrant nor asked for his license and registration. Neither officer conducted any field sobriety tests to determine if the driver was presently under the influence of marijuana.

Instead, the officers called for backup, and four additional officers arrived on the scene in two marked cruisers. Once backup arrived, and based on "the odor of marijuana and just the way they were acting," both the driver and the passenger were ordered out of the car by Officers Morgan and Diaz. [FN7] As the defendant stepped out of the car, Diaz asked him if he had "anything on his person."

In the presence of the six police officers, the defendant told Diaz he had "a little rock for myself" in his pocket. Diaz reached into the defendant's pocket and retrieved the item, which Diaz estimated to be approximately four grams of crack cocaine. No Miranda warnings were given to either the defendant or the driver before the crack cocaine was seized.

Outcome: the Court suppressed the crack cocaine.