New Jersey Court Finds that “Marijuana Smell” Can Still Provide Probable Cause, Despite State’s Medical Marijuana Law

Marijuana laws are undergoing reform all over the country. Numerous states allow medicinal marijuana use with a doctor’s prescription, and a handful of states have decriminalized it for recreational use. It remains illegal under federal law, however, and is only permitted for limited medicinal purposes in New Jersey under the Compassionate Use Medical Marijuana Act (CUMMA), which became law in 2010. A September 2015 ruling from the New Jersey Appellate Division, State v. Myers, held that the smell of marijuana may still serve as the basis for probable cause for an officer to conduct a search. The case did not specifically involve driving while intoxicated (DWI), but its holding affects DWI cases throughout the state.

According to the court’s ruling, a state trooper responded to a report of gunshots at about 1:00 a.m. in Cumberland County. The trooper testified that he observed three parked cars, one of which appeared to be occupied, next to a residence that was hosting a party. He approached that car and briefly spoke with the defendant, who was in the driver’s seat. He then went to the residence and spoke to the party host.

While the trooper was returning to his vehicle, he noticed that the defendant had moved his car to a nearby driveway. A woman was yelling at the defendant to move his vehicle. The trooper claimed that he found it “suspicious” that the defendant had moved his car, so he approached the vehicle again. He claimed that this time, he “detected the odor of burnt marijuana coming from the car.” He instructed the defendant and his two passengers to exit the car, and he placed all three under arrest. He conducted a “search incident to arrest” and found a small bag of marijuana and a handgun in the defendant’s jacket.

Facing unlawful possession charges for both the marijuana and the handgun, the defendant moved to suppress the evidence. The trial court denied the motion, and he entered guilty pleas with the right to appeal the denial of suppression.

On appeal, the defendant argued, in part, that the trooper lacked probable cause to approach his car a second time, and that the enactment of CUMMA requires a revision of New Jersey’s caselaw regarding marijuana odor and probable cause. The court rejected both arguments. It found that the lower court credited the trooper’s testimony regarding the odor of marijuana, although it is not clear how he noticed it on his second approach of the vehicle but not the first. The court also noted that marijuana remains a Schedule I controlled substance with only limited exceptions, that CUMMA makes a strict distinction between approved medicinal uses and other uses, and that the law specifically states that it does not permit the operation of a vehicle while a driver is under the influence of marijuana.

Appellate courts in Arizona and Massachusetts reached a very different decisions recently, suggesting that the question is far from settled. In State v. Sisco, the court held that, because of the Arizona’s medical marijuana law, “the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.” Probable cause requires “additional, commonly evident facts or contextual information suggesting a marijuana-related offense.” The court in Massachusetts, which has partly decriminalized marijuana, reached a similar conclusion in Comm. v. Rodriguez.

If you are facing a charge of alleged DWI, you should seek the assistance of an experienced and skilled DWI attorney. At Levow DWI Law, P.C., we have dedicated our entire law practice to defending people’s rights in DWI cases. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation.

More Blog Posts:

Medical Marijuana Patient Acquitted of DWI, New Jersey DWI Attorney Blog, October 5, 2015

Proposed Bill Would Amend New Jersey DWI Law by Adding “Zero Tolerance” Provisions for Inhalants, New Jersey DWI Attorney Blog, November 27, 2014

How Does the State Prove “Intoxication” in New Jersey DWI Cases Involving Drugs Instead of Alcohol? New Jersey DWI Attorney Blog, August 26, 2014

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