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"Marijuana Smell" Still Probable Cause in New Jersey Marijuana Laws

Posted by Carmine R. Villani | Dec 01, 2015 | 0 Comments

"Marijuana Smell" Still Probably Cause in New Jersey Marijuana Laws

Even in the age of growing medical marijuana usage, earlier this fall, New Jersey courts ruled that the smell of marijuana is still grounds for a warrantless search. New Jersey marijuana laws have been undergoing change all over the country; and despite a 2010 law legalizing marijuana for limited medicinal purposes under the Compassionate Use Medical Marijuana Act (CUMMA), the New Jersey Appellate Division in 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.

New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16

The New Jersey Compassionate Use Medical Marijuana Act allows New Jersey residents with one of 11 conditions to receive marijuana with the approval of a doctor registered with the program. The doctor can approve up to two ounces of pot per month.

Conditions covered

  • Amyotrophic lateral sclerosis;
  • multiple sclerosis;
  • terminal cancer;
  • muscular dystrophy;
  • inflammatory bowel syndrome;
  • and all patients whose doctors have said they have less than 12 months to live.
  • Patients with the following conditions who are resistant or intolerant to conventional therapy can also participate:
    • seizure disorder, including epilepsy;
    • intractable skeletal muscular spasticity;
    • and glaucoma.
  • Patients with HIV/AIDS or cancer can participate if chronic pain or severe nausea or wasting result from their conditions or their treatment.

State v. Myers

State v. Myers addresses the question of whether the smell of marijuana can be used as probable cause for a search even though it is now legal for some NJ residents to use and carry the drug. In this 2012 case, the defendant was parked outside a party when police responded to gunshots in the area. The officer questioned the defendant, smelled marijuana and after conducting a search, found a handgun. George Myers of Cumberland County, was then arrested for marijuana possession and unlawful possession of a handgun.
The defendant's argument was in line with NJ CUMMA, but the Appellate Division disagreed. The court held that New Jersey's medical marijuana law does not disqualify probable cause when law enforcement smells the odor of marijuana unless the user can successfully show that they are covered by CUMMA and in compliance.
According to the court ruling, “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.”

New Jersey Marijuana Attorney

Possession of marijuana without a registry identification card is still considered a crime. In addition, the medical marijuana act does not allow someone who can legally obtain marijuana to drive a car while under the influence or smoke it in a moving vehicle. If you or a loved one is facing marijuana or other drug related charges, consult with an experienced and skilled marijuana attorney at Villani & DeLuca P.C. today.
Villani & DeLuca, P.C. provides experienced criminal defense lawyers for clients in Ocean County, Monmouth County and throughout New Jersey. Contact Partner, Carmine R. Villani, Esq. or Associate, Timothy L. Horn, Esq. at 732-709-7757 to schedule a free initial consultation today.

About the Author

Carmine R. Villani

Founding partner, Carmine Villani, Esq. is a former municipal prosecutor with over three decades of experience in Criminal and DWI Defense.


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