New Jersey Supreme Court Rules That Police Improperly Used Marijuana Odor In Vehicle Search

“A generalized smell of raw marijuana does not justify a search of every compartment of an automobile.”

By Sophie Nieto-Muñoz, New Jersey Monitor

The state Supreme Court said in a unanimous ruling Thursday that police officers improperly used the smell of marijuana to search a man’s car on the New Jersey Turnpike in 2016, a decision that allows the man to withdraw his guilty plea to a weapons offense.

The ruling comes more than two years after Gov. Phil Murphy (D) signed a law that bars police from using the odor of cannabis as probable cause to search someone or their car. That law, which was irrelevant to the case at hand because of the timing, means cases involving police using the smell of marijuana to search cars will “likely be few and far between,” Thursday’s ruling says.

Raymond Hamlin, the attorney who represented the defendant in this case—Cornelius Cohen—cheered the decision.

“It’s significant for us that we were ultimately vindicated, and that’s unbelievably satisfying,” said Hamlin.

Cohen was driving north on the Turnpike in a Black Honda Civic in January 2016 when police stopped his car. They had been on the lookout for him because of an informant’s tip that Cohen traveled south to bring guns back to New Jersey, the ruling says.

The officer who stopped Cohen said he smelled “a strong odor of raw marijuana” coming from the Honda, and used that to search the passenger compartment, where he found no marijuana, and then the engine compartment, where he also found no weed but did find a rifle and revolver.

The officer’s search of the car should have stopped after he found no marijuana in the passenger compartment of Cohen’s car, Justice Fabiana Pierre-Louis wrote.

“A generalized smell of raw marijuana does not justify a search of every compartment of an automobile,” said Pierre-Louis.

Cohen attempted to suppress the evidence of guns found during the car search to no avail, despite the trial court judge saying he was troubled by the “subjective testimony” of the smell of marijuana when there is no evidence “to suggest marijuana was in the car.” Cohen entered a conditional guilty plea to one count of unlawful possession of a weapon and was sentenced to five years in jail.

The decision to allow the weapons to be entered into evidence against Cohen was upheld by the Appellate Division, and Thursday’s ruling reverses that decision and remands Cohen’s case back to the lower courts.

Pierre-Louis cited a 1980 case, New Jersey v. Patino, which says an officer’s search of a car “must be reasonable in scope.” She noted another case where a cop pulled over a car for a broken taillight, smelled an intense odor of marijuana, and noticed the trunk was “hanging low.” That trooper then discovered 176 pounds of marijuana in the trunk. The Supreme Court ruled the search of the car in that case was valid because the odor of marijuana was so strong, the officer had probable cause to expand his search beyond the car’s interior.

Thursday’s ruling also notes that the officer in Cohen’s case could have sought a search warrant to look in Cohen’s engine compartment.

New Jersey’s recreational marijuana law, which was passed five years after Cohen was arrested, had no bearing on the case because the arrest predated the law. The legalization act decriminalized marijuana and states that the “odor of cannabis or burnt cannabis” or the possession of marijuana without exceeding the lawful amount—six ounces—does not constitute reasonable suspicion of a crime.

This story was first published by New Jersey Monitor.

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