Can an odor warrant probable cause for search?

Posted October 22nd, 2015 by .

Categories: Criminal Defense.

probable cause from marijuana odor anthony carboneThe word “odor” can conjure many thoughts.  To some, it may mean the smell of someone unclean.  To others, it might suggest the scent released by an angry animal.  However, what does it mean when a police officer gets a whiff of what he believes to believe marijuana?  It may be that the odor emitted from burnt marijuana can warrant probable cause for search.

What the Law Says

When we speak about probable cause, we are speaking about law enforcement’s right to search a vehicle or premises.  Sometimes, a search warrant is required.  A search warrant is a document procured after securing permission from a judge.  In essence, it means submitting proof that there is reason to believe that someone is involved in illegal activity.  A search warrant allows authorities to conduct a search in an attempt to evidence.

The scent of burning marijuana can be quite strong and easily recognizable to trained police officers.  To some, it may smell like a skunk.  Others say that it is a distinct odor.  In any event, if there is a suspicion that you or your car smells like pot, law enforcement authorities may demand to search you and your vehicle.

What about Medical Marijuana?

In 2010, the New Jersey legislature signed into law the “New Jersey Compassionate Use Medical Marijuana Act.”  The law acknowledges that certain conditions benefit from the use of marijuana.  There are stringent requirements, including a doctor’s prescription and registration with the state.  Only certain medical conditions are eligible for the medical marijuana program.  Users are required to obtain a card that resembles a driver’s license.  They must also procure the marijuana from authorized facilities.

The New Jersey Medical Marijuana Program lists the places where patients may not smoke marijuana as follows:

  • While operating any type of vehicle while under its influence
  • Any form of public transportation
  • Any public buildings, but not limited to schools, jails or recreational facilities
  • In a moving vehicle, even if the patient is not the driver

Does Medical Marijuana Exempt Probable Cause?

In a recent New Jersey case, the defendant attempted to use medical marijuana laws as an exemption from probable cause to do a warrantless search.  In this matter, the police were called to a residence with complaints of gunshot sounds.  The police noted that there were three individuals in a parked vehicle and approached them.  When the officer noticed the smell of bunt marijuana, he used this as the basis for searching the car.  His search turned up a bag of marijuana and a handgun.

After conviction by the lower court, the defendants appealed.  They claimed that because medical marijuana was available in New Jersey, their vehicle should not have been searched.  The Appellate Division disagreed.  The scent of marijuana is still reason enough to warrant a search.

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Have you been charged with marijuana possession? In many instances, this is a municipal court offenseContact us regarding legal advice concerning your charges.

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