Although New Jersey has decided to allow the use of medical marijuana, this decision does not mean that the state’s strict laws regarding marijuana smoke, use and possession have changed in conjunction with that decision. According to the state’s Appellate Division, the smell of marijuana still creates probable cause for police to search a person’s house or car and arrest someone who is smoking pot.
In State v. Myers, the three appellate judges ruled that anyone who is caught in possession of or using marijuana will be charged with criminal activity, unless that person is a patient with the authorization to smoke for medical reasons. “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,” the judges wrote.
Smelling Smoke
In January of 2012, a state trooper received a 911 call about shots fired near a home in Cumberland County. When he arrived, he found a parked car outside the house that was having a party. The officer approached the car, which had defendant, George Myers, inside. Myers rolled down the window and told the officer that he was picking up his cousins from the house.
After a few minutes, the officer smelled burning marijuana coming from Myers’ car and asked him and his two passengers to get out of the car. He arrested all three and searched the vehicle, which uncovered a small amount of marijuana, as well as a handgun. Myers was charged with weapons possession and having an illegal drug in his possession.
Appellate Court Ruling
Myers appealed his criminal conviction, arguing that marijuana is not a “per se contraband” anymore because the state legalized medical marijuana in the 2010 New Jersey Compassionate Use Medical Marijuana Act. Because it’s no longer contraband, Myers argued that the smell of marijuana should not be used as probable cause to justify a search of his vehicle.
However, the appellate judges ruled that the Act creates a “limited exception” for those who have the medical clearance to possess marijuana and anyone without the proper medical prescription can still be charged. In order to use medical marijuana legally, a person has to be certified by a physician, enter his or her name into the statewide registry and carry an identification card. Without these things, anyone in possession is in violation of New Jersey law.
As such, probable cause can include the smell of marijuana because a further investigation would uncover whether the user has a medical qualifier or not. Myers did not have an identification card, nor was he part of the state’s medical marijuana database, so having pot in his possession is a criminal offense for which he could be arrested.
As the country’s stance on marijuana changes, state and federal laws will be adapting to ensure that everyone knows what’s legal and what’s not when it comes to this popular drug. For more information on drug crimes and laws, contact a New Jersey drug crime lawyer at Helmer, Conley, and Kasselman, PA.
