Medical marijuana may be legal in New Jersey, but that doesn’t mean the smell of it won’t get you in trouble.

Smoking Marijuana JointA state appellate court ruled in early September that the aroma of weed is still probable cause for a police search. This is despite the fact that MMJ has been legal in New Jersey since 2010.

George A. Myers was arrested in January 2012 after cops smelled marijuana, searched him, and found a small amount of pot and a handgun. Myers’ lawyer argued in court that the odor wasn’t enough to justify the warrantless search.

A three-judge panel of the appellate court disagreed, saying the MMJ law never removed the presumption that the smell of weed means someone is in possession of the drug illegally. This presumption of illegal behavior is essential to establishing probable cause.

Smell of weed is probable cause

Police generally need a warrant to conduct a search, but in some cases they only need probable cause to believe a suspect is committing a crime. In New Jersey, the court said, the scent of pot is enough.

“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,” the judges wrote.

The decision is a major setback for reformers in New Jersey, since it means even legal patients can still be treated as criminals. Amira Scurato, Myers’ lawyer, said she was “disappointed” in the ruling and plans to file an appeal with the New Jersey Supreme Court.

Patients must prove legal possession

The decision means police now have legal justification to search almost any MMJ patient solely on the basis of smell. Patients will bear the burden of proving that they are in legal possession of cannabis.

Prosecutors, not surprisingly, praised the ruling. Deputy New Jersey Attorney General Sara Quigley said the MMJ law was never intended to free patients from police harassment. The duty to prove their use is legal lies with them, not with cops, Quigley 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,” she said. “The (MMJ 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.”

Police responded to report of gunfire

indoor grow marijuana plantThe case started early in 2012, when a state trooper responded to a call reporting gunfire in unincorporated Cumberland County.

The trooper approached a car that was parked near the reported location of the shooting. A woman in the passenger’s seat was yelling at Myers, the driver. The trooper later said he smelled burning cannabis coming from the car, which was parked in the woman’s driveway.

A search of Myers turned up “a small baggie of marijuana” and a handgun. He was arrested and charged with unlawful possession of a handgun and possession of weed, a “disorderly persons” offense.

The trial court refused to suppress evidence from the search, saying the trooper had probable cause to conduct it, and Myers pleaded guilty to unlawful handgun possession without a permit; the pot charge was dropped.

Scurato argued on appeal that under the MMJ law, cannabis is no longer “per se” contraband sufficient to establish probable cause for a search. The courts, she said, must revise the longstanding presumption that the smell of weed constitutes probable cause of a crime in itself.

But the court rejected Scurato’s contention that weed should now be treated like alcohol when establishing probable cause. While the smell of booze isn’t enough to justify a search, the judges wrote, “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.”


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