New Jersey: Court Rules Marijuana Smell Still Probable Cause

[Jacob Redmond]

A New Jersey appellate court on Tuesday ruled that despite a 2010 law legalizing medical marijuana, the smell of marijuana is still grounds for a warrantless search.

Trenton - A New Jersey appellate court on Tuesday ruled that despite a 2010 law legalizing medical marijuana, the smell of marijuana is still grounds for a warrantless search.

An attorney for George A. Myers, who was arrested in January 2012 after he was found with a small amount of marijuana and a handgun, had argued before the three-person panel that the law had removed the presumption that a marijuana odor means someone is in possession of marijuana illegally.

The court disagreed, saying "We hold that absent evidence the person suspected of possessing or using marijuana has a registry identification card, detection of marijuana by the sense of smell, or by the other senses, provides probable cause to believe that the crime of unlawful possession of marijuana has been committed."

Myers' public defender, Amira Scurato, said she was "disappointed" in the decision and plans to petition the New Jersey Supreme Court.

Deputy Attorney General Sara Quigley, the attorney on the appeal, said "We are pleased that the Appellate Division recognized that the unexplained odor of marijuana continues to give rise to probable cause that a crime is being committed. The (medical marijuana law) provides an affirmative defense for those who are registered qualifying patients, but it was not intended to saddle police with the burden of investigating and proving that a suspect's marijuana possession is unauthorized before acting on their probable cause."

On Jan. 7, 2012, a state trooper responded to a report of gunfire in Fairfield Township, Cumberland County, according to the ruling. The trooper approached a car parked nearby and then moved on. He approached again after hearing a woman yelling at the driver of the car, who had since moved the vehicle onto her driveway.

The trooper said he smelled burnt marijuana, searched Myers and found a handgun and "a small baggie of marijuana." Myers was charged with second-degree unlawful possession of a handgun and a "disorderly persons" offense for marijuana possession.

After the trial court denied his efforts to have the evidence suppressed, finding that the trooper had lawfully found the handgun and marijuana, Myers pleaded guilty to second-degree unlawful possession of a handgun without a permit, and the marijuana charge was dismissed.

On appeal, Scurato argued that because a 2010 law legalized marijuana for patients with severe, chronic illnesses, marijuana is no longer "per se" contraband establishing probable cause for a search.

There's a long-standing recognition in New Jersey courts that the smell of marijuana "itself constitutes probable cause that a criminal offense has been committed and that additional contraband might be present," according to the ruling.

Scurato argued the New Jersey Compassionate Use Medical Marijuana Act required the courts to revisit that presumption.

According to the ruling, she said marijuana should be treated like alcohol.

The smell of alcohol on a driver's breath isn't enough to justify a search. However, the judges said, "the odor of alcohol on a person's breath speaks to the contents of the person's gastrointestinal tract. It may signify far less about the contents of the person's pockets and vehicle than the odor of marijuana wafting out of the vehicle."

But possession of marijuana without a registry identification card is still a crime, the judges noted, adding that even CUMMA doesn't allow someone who can legally obtain marijuana to drive a vehicle while under the influence or smoke it in a moving vehicle.

"Here, defendant does not claim that he or anyone in his car was a qualifying patient who had a registry identification card or even a physician's certification," the judges said. "Moreover, defendant had just operated and was in physical control of his car when (the trooper) approached and smelled the odor of burnt marijuana."

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[Happy Hemper]

At least two States differ on the account of probable cause since they now have in some way legalized cannabis.

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Arizona:

Judge Peter Eckerstrom presiding over the Arizona Court of Appeals

"Medical marijuana use pursuant to AMMA is lawful under Arizona law,'' he wrote. "Therefore its scent alone does not disclose whether a crime has occurred.''

"Were we to adopt the state's suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes."

...smell test is plain and simply "outdated" and cannot be used to "form a well-founded belief that a criminal offense was committed."

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Massachusetts: (The Boston Globe)
The Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person's car.
In two unanimous rulings, the state's highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.
...
"The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations,'' Justice Barbara Lenk wrote for the unanimous court. "We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile.

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Unfortunately SCOUTS still holds that smell can be cause for a warrantless search.