In a criminal action that tested the parameters of “probable cause,” a New Jersey man creatively argued that his conviction for possession of a handgun--discovered during his arrest for a marijuana offense--could not stand because of New Jersey’s Medical Marijuana Act. Since 2010, our State has permitted marijuana use for medicinal purposes in certain circumstances. The N.J. Department of Health reports that in 2014, 325 physicians were registered to prescribe medical marijuana for certain conditions, including glaucoma, inflammatory bowel disease, multiple sclerosis, muscular dystrophy, seizure disorder, and terminal cancer.
The criminal defendant tried to convince the Appellate Court that a police officer lacked probable cause to arrest him where the officer’s belief that a crime was being committed was predicated on the smell of marijuana. Probable cause for an arrest exists where, based on the totality of circumstances, an officer has a well-founded suspicion or belief that contraband or evidence of a crime will be found.
The Defendant argued that since marijuana is no longer “per se contraband,” the smell of marijuana could be used to establish probable cause. He maintained that the smell of marijuana should be treated the same way that the smell of alcohol is treated when a motorist is pulled over. Obviously, alcohol is a lawful product, not a banned substance. It may be purchased and consumed by any adult without a permit or license and is legally available for sale in numerous establishments. Standing alone, the odor of alcohol on a motorist’s breath is insufficient to establish probable cause to search a vehicle without a warrant. Since the use of alcohol is not a per se violation of the law, it was argued, so too should the smell of marijuana be insufficient to establish probable cause that a marijuana offense is being committed.
The Appellate Court rejected the argument. The 2010 law, the Court stated, drew a clear distinction between medical and non-medical marijuana use. Further, the Court determined, it was intended to protect patients lawfully using the substance from arrest, prosecution and other penalties associated with non-lawful use. To accomplish that goal, the statute provides for the issuance of registry identification cards which affords users accused on unlawful use or possession an affirmative defense to a criminal drug charge. If a user is not a qualified patient, his possession, consumption, or sale of marijuana remains illegal.
The Court did not have much difficulty weeding through the defendant’s arguments, concluding that if an individual who is stopped cannot produce a registry identification card, detection of marijuana by the sense of smell or by other senses provides probable cause to believe that the crime of unlawful possession of marijuana has been committed.
Linda Kern is a Randolph resident who is in private practice in Morristown. She is admitted to the New York and New Jersey bars and has litigated in both state and federal courts.
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