Smell of Marijuana Still Provides Probable Cause for Search Even In Age of Growing Medical Use

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

State v. Myers, decided by the Appellate Division on September 8, 2015, addresses the question of whether the smell of marijuana can still be used as probable cause for a search given that it is now legal for some citizens to both use and carry the drug. The defendant in this case was parked outside a party when police responded to gunshots in the area. The officer questioned the defendant in his community caretaking function capacity and not as if the defendant were a suspect. The officer then left to question others in the area, but upon noticing the defendant in a verbal argument after moving his car, he again approached him. This time the officer smelled marijuana, and after conducting a search he found marijuana, and a handgun. The defendant appealed the trial court’s denial of his motion to suppress.

Firstly, the Appellate Division reiterated that reasonable suspicion is not required in order to conduct a field inquiry which is what the officer was doing when he approached the vehicle for the second time.

Secondly, it is very possible that a trained officer who does not smoke marijuana would be more sensitive to the smell then a user of marijuana. There is a long precedent of case law in New Jersey emphasizing that the smell of marijuana provides probable cause for a search. The defendant’s main argument is that since the passage of the N.J. Compassionate Use of Medical Marijuana Act (CUMMA) this precedent no longer applies because marijuana is not per se contraband. The Appellate Division disagreed for the following reasons:

  1. CUMMA requires users to carry a registration card and that should be presented to police. It is the responsibility of the use to assert the affirmative defense of being authorizes to possess or use marijuana by CUMMA.
  2. Defendant here did not claim to be in compliance with CUMMA.
  3. CUMMA does not authorize the operation of a vehicle while smoking marijuana.

Medical marijuana use is still very limited in New Jersey and thus the smell of marijuana provides probable cause for a search unless the user can successfully show he/she is covered by CUMMA and in compliance.

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