Is Marijuana Odor Probable Cause for a Warrantless Search in NJ?
Warrantless Searches Under The “Plain Smell” Doctrine
Marijuana use continues to be a widely debated topic in the US. In New Jersey, recreational marijuana has yet to be legalized, although its medical counterpart was passed into law in 2010. Qualified medical marijuana patients can access a variety of marijuana treatments but must be cautious when transporting such items in their vehicles.
Currently, registered patients must adhere to the following rules:
- Patients may not operate, navigate, or be in control of any vehicle, aircraft, railroad train, or stationary heavy equipment vessel while under the influence of marijuana
Patients may not smoke medicinal marijuana:
- On a school bus or public form of transportation
- In a private vehicle unless the vehicle is not in operation
- On any school grounds, in any correctional facility, at any public park or beach, at any recreation center
- Other public places specified in N.J.S.A. 2C:33-13
- Patients can currently obtain 3 ounces or marijuana in a 30 day period unless they are terminal, in which case the amount is unlimited
Unfortunately, medical marijuana patients in New Jersey are increasingly prone to “sniff and searches,” a notorious term defined as police officers who conduct warrantless searches based on marijuana odor. As states throughout the US continue to legalize marijuana, both medical and recreational, the risk of being subjected to sniff and searches can increase. Some states have accommodated their progressive marijuana laws by banning sniff and searches. Other states, like New Jersey, continue to allow this practice.
This means that if you are not a qualified medical marijuana patient In New Jersey, you must avoid traveling with the substance at all costs. Let’s say an officer has probable cause to pull you over and, after doing so, has reasonable suspicion to believe you are illegally possessing marijuana or committing another drug crime. For example, their reasonable suspicion may have resulted from a strong marijuana odor lingering out of your front seat. The officer may then conduct a warrantless search in your car’s interior if their reasonable suspicion elevated to the probable cause element needed to justify such an act.
The “plain smell” doctrine is New Jersey’s justification of warrantless searches based on marijuana odor. It is derived from the plain view doctrine, which allows officers to conduct warrantless searches and seizures if they observe an object in plain view and have probable cause to believe it is connected to crimes. As such, if an officer smells marijuana and has probable cause to believe it is associated with criminal activities, they can search certain parts of a vehicle and seize any visible contraband. Although there are certain restrictions on the plain smell doctrine, officers may still violate your Fourth Amendment protection against warrantless searches and seizures.
If you believe your Fourth Amendment rights were violated based on an officer’s smell of marijuana, you should equip yourself with legal protection right away. When you contact us, we’ll inform you of your next steps and provide you with the legal counsel needed to properly fulfill them. As such, our Bergen County criminal defense experts are just a phone call away at (201) 574-7919!