As most Americans and New Jerseyans are aware, the Constitution and Bill of Rights grant or enumerate certain inalienable rights held by each American. Most Americans also know that they hold the right to be free from unreasonable and unlawful government searches and seizures. The Fourth Amendment to the U.S. Constitution states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In short, the Amendment provides an array of protections for U.S. citizens regarding searches by a government official. The main trust of the right is that no search may be conducted by a government official or by a government agent unless authorized. Authorization of a search can be due to the circumstances present or because a warrant was issued based on valid probable cause.

Since the passage of New Jersey’s medical marijuana statute and following the legalization of cannabis in several states, questions have arisen regarding marijuana’s legal status in New Jersey. To be clear, marijuana is still considered a controlled substance and it is still illegal to possess it without valid justification such as participation in NJ’s medical marijuana program. However, the more interesting question is whether the mere odor of marijuana can still serve to give rise to probable cause permitting a police officer or other government agent to conduct a warrantless search.

The Events Giving Rise to the Police Search and Arrest

The events that gave rise to this question commenced on a January night in 2012 when a state trooper responded to reports of gunfire in Fairfield township located in Cumberland County, New Jersey. When the officer arrived at the scene he stated that he approached a car after seeing and hearing a woman yelling at the driver in the vehicle to remove it from her driveway. The officer states that he smelled the odor of burning marijuana at the scene and thus searched the driver of the vehicle.

The officer’s search uncovered the presence of a small bag of marijuana and a handgun. The driver was arrested and subsequently charged with a disorderly persons offense for the marijuana and a second-degree unlawful possession of a handgun charge.

Girl Sits In A Depression On The Floor Near The Wall

At the trial court level, the defendant moved to suppress the evidence on the grounds that the search by the officer was illegal and unconstitutional because the passage of New Jersey’s medical marijuana law had removed the presumption that the smell of marijuana means that an individual is illegally possessing the substance.  The trial court did not find this argument convincing and the defendant appealed.

Court Finds that the Smell of Cannabis Still Provides Probable Cause for a Search

The appeals court agreed with the trial court and sustained the initial judgment finding that under New Jersey State Law, the smell of burnt marijuana still provides adequate grounds for a warrantless search. The court reasoned that the intent of New Jersey’s was not to require law enforcement agents to first conduct an inquiry regarding whether an individual is authorized to possess and use marijuana prior to acting on probable cause. Rather, the court wrote that the state’s medical marijuana law allows those accused of marijuana possession to assert an affirmative defense should a legal action arise. The court held that the without evidence that the patient is a registered participant in New Jersey’s medical marijuana program, the detection of the odor or presence of marijuana by any of the sense still provides probable cause to support the belief that the crime of unlawful possession of marijuana has been committed.

The defendant’s public defender stated that she was disappointed in the court’s decision, but expressed her intent to appeal to the New Jersey Supreme Court. Other state courts faced with similar facts have come down on the other side of the issue. For example, a recent Arizona Appeals Court ruling found that the existence of Arizona’s medical marijuana program now means that the scent of marijuana alone does not mean that a crime has occurred and thus does not give rise to probable cause. Whether the New Jersey Supreme will decide to hear an appeal remains to be seen and for now the smell of marijuana remains valid probable cause under New Jersey law.

Facing Drug Charges in South Jersey?

If you have been charged with drug possession, manufacture or other drug crimes in Cape May or Atlantic Counties the experienced criminal defense attorneys of the Law Offices of John J. Zarych   can fight for you. To schedule a free and confidential consultation call us at (609) 616-4956 or contact us online today.