By: Jennifer Roselle
The use of marijuana, both medically and recreationally, continues to be in the news almost daily. In New Jersey, where the use of medical marijuana, subject to certain restrictions, has been legal since 2010, the ongoing conversation amongst lawmakers continues almost daily as well. On July 2, 2019, Governor Murphy signed legislation that brings about the latest expansion of the state’s medical marijuana program. Legalization of recreational use continues to be part of ongoing discussions amongst lawmakers, with no quick resolution. Needless to say, legal issues surrounding marijuana will persist for quite some time.
In the State of New Jersey v. George A. Myers, the Appellate Division ruled that the smell of marijuana alone generally remains probable cause for police to detain a person and conduct a search. The case centered on George Myers’ arrest after police detected the odor of marijuana coming from his car while parked in front of a residence to which police were dispatched. During the police department’s investigation of alleged gunshots, the smell of marijuana was detected coming from Myers’ car. Myers and the two occupants of the car were searched and the arresting officer found marijuana and a handgun in Meyer’s jacket.
Myers accepted a plea bargain which resulted in the dismissal of the marijuana charge. He appealed his conviction, in part, on the basis that since the enactment of the Compassionate Use of Medical Marijuana Act (CUMMA), which states the possession of marijuana is not per se illegal so the odor alone did not constitute probable cause for the search conducted. Myers did not claim to hold an appropriate CUMMA registry identification card.
In my opinion, the State of New Jersey v.George Myers highlights the balance of patient rights’ under CUMMA and the impact on law enforcement procedures. The distinctions drawn by the Court to uphold patient rights create important legal precedent as the Garden State broadens its medical marijuana program.
The Appellate Court ultimately denied Myers’ appeal. First, the Court declined to strike its long-standing precedent allowing law enforcement to rely on the odor of marijuana as probable cause, due to CUMMA’s enactment and that the odor could be probable cause of an active crime. The courts also emphasized that protections under CUMMA apply only to certified medical marijuana users who have proven they have a medical necessity for the drug and/or get it from a legal dispensary. Further, the Court drew attention to the provisions in those guidelines which advise officers to generally refrain from seizures, charges, and/or arrest for those complying with CUMMA.
Myers’ was unable to provide appropriate documentation and could not demonstrate his medical need for marijuana. Accordingly, the Appellate Division held 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 Court also noted that CUMMA did not allow someone who may legally possess marijuana pursuant to CUMMA, to drive a vehicle while under its influence or to remain in control of a vehicle like Meyers was at the time of his search.