The Smell of Marijuana

One of our most fundamental rights is the protection against unreasonable search and seizures, as outlined in The Fourth Amendment. Unless the search falls within a specific exception, a police officer must obtain a warrant to conduct a search of person or premise.  Some well-established exceptions include you consenting to a search or when illegal items are in “plain view” of the officer.  (There are other additional exceptions).  Until recently, there was an open debate as to whether the mere scent of marijuana by itself is enough to allow an officer to conduct a warrantless search.  A recent New Jersey Court Case has decided the answer to this question.   No, it’s not enough.

A New Jersey appellate court overturned a case that found a man guilty of marijuana possession that sentenced him to jail for over five hundred days. The police officer jumped a fence after smelling marijuana, arrested the man, and then continued to search the backyard and house. The appellate judges decided that the search violated the defendant’s Constitutional rights because the odor alone didn’t establish sufficient reasonable cause for a search without first obtaining a warrant from a judge.

Bottom line: what does this mean for you?

Any information that is obtained by the police violating your rights is inadmissible in court. If you were arrested on the premise that a police officer “smelt” marijuana alone and then conducted a search, a motion to suppress can be filed with the court requesting the judge to exclude the evidence found against you. The state will not be able to proceed against you on these charges in most cases if successful.

If you think the police exceeded their boundaries by searching or arresting you after smelling drugs, Mark A. Bernstein, Attorney at Law is here to help. I will personally review all information to make sure that your Constitutional rights were not violated throughout the arrest process. Call me today at (609) 665-3338 to review your case.