NEW JERSEY — Earlier this week, Gov. Phil Murphy signed three bills to legalize recreational marijuana use in the Garden State and establish a regulated cannabis market within the next six months. Shortly after, however, the New Jersey State Policemen's Benevolent Association (PBA) issued a statement, warning members and law enforcement officers that the 'marijuana legalization bill poses serious threats' to their jobs.
While the legislation allows for adults to legally possess as much as six ounces of marijuana and provides relief for anyone previously subject to arrest for petty marijuana possession, the state PBA warns that it was 'amended with language that contains severe penalties on law enforcement officers who attempt to use the odor or possession of marijuana and alcoholic beverages as a reason to stop and search minors to enforce the law.'
"We are urging every member of law enforcement to avoid approaching people with marijuana until a proper legal analysis and direction can be developed once this law is signed by the governor," stated the PBA in a notice posted to its Facebook page (https://www.facebook.com/NJSTATEPBA).
Under the legislation, an officer who smells marijuana coming from a vehicle during a motor vehicle stop should first take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence. If yes, the driver may be arrested and the vehicle may be searched.
However, if the driver is not found to be under the influence, the new laws, according to the state attorney general's office, 'are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person…[and] as a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.'
Additionally, the legislation goes on to clarify that an officer may not initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana with the age of the person being stopped also irrelevant in these situations.
In the event officers encounter an individual under the age of 21 in possession of marijuana, hashish, cannabis, or alcohol, the law states that law enforcement 'must be cautious.' While they can legally seize the product and issue the appropriate written warning, the new law sets forth the following prohibitions on officers when investigating possession or consumption: officers may not request consent from an individual who is under the age of 21; officers may not use odor of marijuana to stop an individual who is under the age of 21 or to search the individual’s personal property or vehicle; officers who observe marijuana in plain view will not be able to search the individual or the individual’s personal property or vehicle; and officers may not arrest, detain, or otherwise take an individual under the age of 21 into custody for a violation…except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian.
According to the PBA, the legislation is 'treacherous' to law enforcement 'because it creates a penalty of 3rd Degree Deprivation of Civil Rights if an officer uses the odor or possession of marijuana or alcoholic beverages as the reason for initiating an investigatory stop of a person.' The organization also states that not being allowed to 'use the odor of marijuana or alcohol as reasonable articulable suspicion to initiate an investigatory stop' and stating that a minor can refuse consent to be searched means 'law enforcement…no longer has probable cause to search a minor for illegally using marijuana or alcohol' and that 'an officer [who] violates a minor’s rights by using pot or alcohol as the reason for a search…will be charged with deprivation of civil rights.'
"It establishes penalties of only warnings for illegal use by minors of marijuana or alcohol, but it essentially prevents an officer from even approaching a person suspected of being a minor. Absent the commission of another crime or clear legal guidance officers are being forced to ask themselves if writing a warning is worth risking being accused and charged with a 3rd degree crime," stated the PBA. "The mere smell of marijuana and its use in your presence will no longer be grounds to search an individual."
Gov. Murphy, however, discussing the legislation at his Feb. 22 COVID-19 presser, sees the law as an opportunity for 'law enforcement [to] focus their resources on serious crimes.'
“As of this moment, New Jersey's broken and indefensible marijuana laws - which permanently stained the records of many residents and short-circuited their futures, and which disproportionately hurt communities of color, and failed the meaning of justice at every level, social or otherwise - are no more,” Murphy said. "In their place are laws that will usher in a new industry, based on equity, which will reinvest dollars into communities — laws which promote both public health by promoting safe cannabis products and public safety by allowing law enforcement to focus their resources on serious crimes,” he continued.
As a ballot question, New Jerseyans supported the decriminalization of marijuana by a margin of 2 to 1 last November with more than 2.7 million votes in favor. New Jersey is now the 13th state in the country to legalize weed and only the fourth on the East coast, with Maine, Vermont, and Massachusetts passing similar laws in recent years.
Senate President Steve Sweeney has publicly stated that the legislation is 'a historic reform that will have a real-life impact on social justice, law enforcement and the state’s economy' and a spokesman from his office said the bills provide a process to dismiss people’s pending marijuana charges.
The PBA, however, disagrees, stating the 'bill dangerously ties [law enforcements] hands. "…While marijuana is now legal for those 21 and older this language is an assault on our ability to do our job and to enforce the law…This language is an attack on law enforcement officers by making us the target of punishment rather than the individuals breaking the law. This language will have dangerous consequences for the public and the police," said the PBA.