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 vinsue
GRAND OLD FART
 
Registered: 02/07/09
Posts: 470
Loc: The Garden State(NJ) 
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 N.J. court rules marijuana smell still probable cause 
#793147 - 09/10/15 03:11 PM (9 years, 3 months ago) |
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http://www.nj.com/politics/index.ssf/2015/09/nj_court_rules_marijuana_smell_still_probable_caus.html#incart_most-read_politics_article
TRENTON — A New Jersey appellate court on Tuesday ruled that despite a 2010 law legalizing medical marijuana, its smell is still grounds for a warrantless search.
An attorney for George A. Myers, who was arrested in January 2012 after he was found with a small amount of marijuana and a handgun, had argued before the three-person panel that the law had removed the presumption that a marijuana odor means someone is illegally in possession of the substance.
The court disagreed, saying, "We hold 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."
Amira Scurato, the public defender for Myers, said she was "disappointed" in the decision and planned to petition the New Jersey Supreme Court.
RELATED: N.J. judge rules teen cannot have medical marijuana at school
Deputy Attorney General Sara Quigley said the state was pleased the appellate division "recognized that the unexplained odor of marijuana continues to give rise to probable cause that a crime is being committed."
"The (medical marijuana law) provides an affirmative defense for those who are registered qualifying patients, but it was not intended to saddle police with the burden of investigating and proving that a suspect's marijuana possession is unauthorized before acting on their probable cause," Quigley said.
On Jan. 7, 2012, a state trooper responding to a report of gunfire in Fairfield Township, Cumberland County, approached a car after hearing a woman shouting at the driver to remove the vehicle from her driveway.
The trooper said he smelled burnt marijuana, searched Myers and found a handgun and "a small baggie of marijuana." Myers was charged with second-degree unlawful possession of a handgun and a "disorderly persons" offense for marijuana possession.
After the trial court denied his efforts to have the evidence suppressed, finding that the trooper had lawfully found the handgun and marijuana, Myers pleaded guilty to second-degree unlawful possession of a handgun without a permit, and the marijuana charge was dismissed.
On appeal, Scurato argued that because a 2010 law legalized marijuana for patients with severe and chronic illnesses, marijuana was no longer "per se" contraband establishing probable cause for a search, and argued that the New Jersey Compassionate Use Medical Marijuana Act required the courts to revisit that presumption.
According to the ruling, she said marijuana should be treated like alcohol, and that the smell of alcohol on a driver's breath was not enough to justify a search.
But the judges said that "the odor of alcohol on a person's breath speaks to the contents of the person's gastrointestinal tract. It may signify far less about the contents of the person's pockets and vehicle than the odor of marijuana wafting out of the vehicle."
Moreover, the judges noted, possession of marijuana without a registry identification card was still a crime, adding that even the medical marijuana act did not allow someone who can legally obtain marijuana to drive a vehicle while under the influence or smoke it in a moving vehicle.
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" One toke over the line... "
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