122 A.3d 994
N.J. Super. Ct. App. Div.2015Background
- After 1:00 a.m. police responded to reported gunshots near a party in Fairfield Township; Trooper Matthew Gore approached a parked car occupied by defendant George Myers and two others.
- Gore first spoke briefly with Myers, then later approached again after a neighbor complained and after the car moved; as he approached the vehicle on public street he testified he smelled burnt marijuana emanating from the car.
- Gore asked the occupants to exit, arrested and searched them; he found a small baggie of marijuana in Myers’ jacket and a handgun in an interior pocket.
- Myers moved to suppress the gun and marijuana; the trial court credited Gore’s testimony about the odor and denied suppression. Myers pled guilty to unlawful possession of a handgun; marijuana charge dismissed under plea.
- On appeal Myers argued (1) the second approach lacked reasonable suspicion/probable cause and (2) under the Compassionate Use Medical Marijuana Act (CUMMA) the plain-smell doctrine no longer supports probable cause for marijuana offenses. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the second approach a permissible field inquiry? | Gore’s second approach was a noncoercive field inquiry to investigate a disturbance; officers may approach and ask questions without suspicion. | Second approach was not supported by reasonable suspicion or probable cause and thus unlawful. | Approach was a lawful field inquiry; Gore smelled marijuana before detaining or questioning, so no constitutional violation. |
| Does smelling marijuana give probable cause to arrest/search vehicle occupants? | Odor of burnt marijuana establishes probable cause that a marijuana offense is being committed and supports arrest/search. | Post‑CUMMA, marijuana is not per se contraband; smell alone cannot establish probable cause because medical use is permitted for registered patients. | Smell of marijuana still supplies probable cause absent evidence the possessor is a registered qualifying patient under CUMMA. |
| Does CUMMA negate existing plain‑smell precedent? | State relies on longstanding precedents recognizing smell as probable cause; CUMMA creates an affirmative defense but does not eliminate the crime or the inference from odor. | CUMMA’s medical exemption means marijuana is not per se contraband and requires treating marijuana like lawful substances (e.g., alcohol). | CUMMA creates an affirmative defense that the defendant must prove; absent evidence of lawful medical authorization, odor remains probable cause. |
| Did officer have lawful vantage to detect odor? | Gore smelled marijuana on public street before opening vehicle or detaining anyone, unlike cases where officers intruded to detect odor. | Compares to Cohen where smell detection followed an unlawful intrusion. | Court distinguished Cohen; Gore’s detection occurred lawfully from public street, so it was admissible. |
Key Cases Cited
- State v. Walker, 213 N.J. 281 (N.J. 2013) (odor of marijuana can constitute probable cause)
- State v. Nishina, 175 N.J. 502 (N.J. 2003) (distinctive odor of burnt marijuana evidences possession)
- State v. Pena‑Flores, 198 N.J. 6 (N.J. 2009) (officer smelling marijuana in car justified ordering driver out and search)
- State v. Judge, 275 N.J. Super. 194 (App. Div. 1994) (trained trooper’s smell of marijuana from passenger compartment created probable cause)
- State v. Legette, 441 N.J. Super. 1 (App. Div. 2015) (smell gives rise to probable cause to search persons in area of odor)
- State v. Cohen, 73 N.J. 331 (N.J. 1977) (distinguished where officers detected odor only after unlawful opening of vehicle)
- State v. Jones, 326 N.J. Super. 234 (App. Div. 1999) (distinguishes alcohol odor from marijuana for probable‑cause inferences)