In light of the recent enactment of marijuana decriminalization legislation and the Attorney General’s directive to prosecutors to dismiss certain cannabis-related charges immediately, the A.G.'s Office has issued a list of Frequently Asked Questions regarding police procedures with respect to investigating and enforcing marijuana laws.
When Police Smell Marijuana on a Traffic Stop
“The smell of burnt (or raw) marijuana” frequently forms the basis for escalating an ordinary traffic stop into a more significant criminal investigation, including a search of a vehicle or person. The A.G. now makes clear that the smell of marijuana justifies only the investigation of the driver of a vehicle for suspected DUI. If a driver is found not to be under the influence, then the smell of marijuana alone does not justify continuing the traffic stop, or to search the vehicle, or person, for possession of up to fourth-degree possession with intent to distribute marijuana, and the vehicle and occupants must be released once the initial rationale for the traffic stop has been addressed.
Stop and Search Based on Scent of Cannabis
Likewise, law enforcement may not stop or search a person, either adult or juvenile, for possession or fourth-degree possession with intent to distribute marijuana based solely on the smell of raw, or burnt, marijuana.
When encountering juveniles and adults under age 21 in possession of marijuana, hashish, cannabis, or alcohol, law enforcement is authorized to seize the substance and issue a warning. However, officers may not request consent to search; may not search the personal property or vehicle based only on the odor of marijuana or even “plain view”; and may not arrest, detain, or take into custody for a violation of 2C:33-15 (underage possession) except to provide a warning and/or provide notice to a parent or guardian.
Procedures Police Must Follow
Police officers must activate their Body Worn Cameras (BWCs) when responding to a suspected violation of 2C:33-15, and may not deactivate their BWCs until the encounter is over.
Police may not fingerprint individuals charged with possession with intent to distribute 1 ounce or less, 2C:35-3(b)(12)(b), or possession of more than 6 ounces, 2C:35-10(a)(3)(b). Such defendants are subject to fingerprinting at their first court appearance. Juveniles and adult under age 21 are not subject to fingerprinting for violations of 2C:33-15(a)(1).
Keep up to date with our blog for updates as the Attorney General issues new guidance. If you or someone close to you has been charged with a marijuana-related offense, an experienced criminal defense attorney may help you identify potential violations of constitutional rights that could justify the dismissal of criminal charges. Contact us today for a consultation.