State of New Jersey v. George A. Myers , 442 N.J. Super. 287 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4295-12T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, September 8, 2015
v. APPELLATE DIVISION
GEORGE A. MYERS, a/k/a G,
Defendant-Appellant.
___________________________________
Submitted March 2, 2015 – Decided September 8, 2015
Before Judges Sabatino, Guadagno and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 12-03-248.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Assistant
Deputy Public Defender, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Sara M. Quigley,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant George A. Myers appeals his conviction for
possession of a handgun discovered during his arrest for a
marijuana offense. His primary argument on appeal, raised for
the first time, asserts that as a result of the New Jersey
Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-
1 to -16, the odor of marijuana can no longer serve as a basis
for probable cause that a marijuana offense is being committed.
We disagree, and affirm.
I.
The following facts are drawn from the testimony at the
suppression hearing and the factual findings of Judge James R.
Swift. After 1:00 a.m. on January 7, 2012, the New Jersey State
Police received a report of three gunshots near an intersection
in Fairfield Township, Cumberland County. Trooper Matthew Gore
was dispatched and arrived two minutes later. Gore observed
three parked cars near a residence where there was a party.
Gore approached the only occupied car, containing three males to
inquire about the reported gun shots. Defendant rolled down the
driver's window of the car, and denied seeing or hearing anyone
firing a gun. Gore then asked defendant if he had attended the
party. Defendant replied he had just arrived to pick up his
cousins, but then said he had been in the residence for a short
time.
After conversing with defendant for one to two minutes,
Trooper Gore continued up the street to the residence and spoke
to the young female holding the party. She said she had heard
three gunshots, but it was unclear who fired the shots.
2 A-4295-12T4
While walking back to his vehicle and looking for shell
casings, Trooper Gore heard a woman a couple of houses away
yelling at defendant's vehicle, which had pulled into her
driveway, telling him to get his car out of her driveway. Both
because of defendant's dispute with the homeowner, and because
defendant's movement of the car to a new location seemed
suspicious, Gore approached defendant's car to speak with him.
Trooper Gore testified that he then detected the odor of
burnt marijuana coming from the car.1 As a result, Gore asked
defendant and then the other two males to exit the car. All
three were arrested and searched. In the search incident to
arrest, Gore found a small baggie of marijuana in an exterior
pocket of defendant's jacket, and a handgun in the interior
pocket.
Defendant was charged with second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b); and the disorderly
persons offense of possession of marijuana, N.J.S.A. 2C:35-
10(a)(4). Defendant moved to suppress both the gun and drugs.
At the suppression hearing, defendant testified that, after
his first encounter with Trooper Gore, another officer told him
to move his car, and then told him to pull into the driveway
1
Gore had learned the smells of burnt and raw marijuana at the
Police Academy, and had smelled burnt marijuana thirty to forty
times during his three-and-a-half-year career.
3 A-4295-12T4
while the officer spoke to defendant's cousin who had approached
on foot. Defendant admitted he had smoked marijuana in the
past. However, he testified that he had not smoked marijuana in
his car before he got to the scene, that no one who got in his
car smelled of marijuana, and that no one had smoked marijuana
in his car between his first and second encounters with Gore.
At the suppression hearing, there was no dispute about the
lawfulness of the first encounter between Trooper Gore and
defendant, in which defendant admittedly was not detained and
was free to leave. Judge Swift found that, in the second
encounter, Gore lawfully approached the car to make a field
inquiry. The court credited Gore's testimony that he smelled
the odor of burnt marijuana. The court also credited
defendant's testimony that no one in the car smoked marijuana
between their first and second encounters "with cops all . . .
around." The court found that because Gore's sensitivity to the
odor of marijuana could exceed that of a marijuana smoker, such
as defendant, Gore could smell marijuana that defendant said he
did not smell. The court concluded that Gore permissibly asked
defendant to exit the car and lawfully discovered the handgun
and marijuana.
After the trial court denied the suppression motion,
defendant pled guilty to second-degree unlawful possession of a
4 A-4295-12T4
handgun without a permit. Pursuant to the plea agreement, the
State dismissed the marijuana charge, and successfully moved to
reduce the mandatory sentence to five years in prison with one
year of parole ineligibility. The court imposed that sentence.
Under the plea agreement, defendant was granted bail pending
appeal of the denial of suppression. See R. 3:5-7(d).
Defendant appeals his April 12, 2013 judgment of
conviction, raising the following arguments:
POINT I - AS MARIJUANA IS NO LONGER PER SE
CONTRABAND, THE CASE LAW REGARDING "PLAIN
SMELL" MUST BE MODIFIED ACCORDINGLY AND THE
EVIDENCE SEIZED IN THE INSTANT CASE MUST BE
SUPPRESSED. (Not Raised Below).
POINT II - NO PROBABLE CAUSE EXISTED FOR THE
TROOPER'S SECOND APPROACH AND INTERROGATION
OF THE DEFENDANT.
We must hew to our "deferential standard of review." State
v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court
reviewing a motion to suppress must uphold the factual findings
underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record."
Ibid. (internal quotation marks omitted). "Those findings
warrant particular deference when they are substantially
influenced by [the trial judge's] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." Ibid. (alteration in original;
5 A-4295-12T4
internal quotation marks omitted). "Thus, appellate courts
should reverse only when the trial court's determination is so
clearly mistaken that the interests of justice demand
intervention and correction." State v. Gamble, 218 N.J. 412,
425 (2014) (internal quotation marks omitted).
II.
We first address defendant's second argument: that Trooper
Gore could not approach defendant's car a second time without
probable cause or reasonable suspicion. Gore testified he
approached defendant's car to speak with him. "The police do
not violate a citizen's rights '"by merely approaching an
individual on the street or in another public place, by asking
him if he is willing to answer some questions, [or] by putting
questions to him if the person is willing to listen[.]"'" State
v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland,
167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S.
491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983))).
Such field inquiries "do not constitute searches or seizures for
purposes of the warrant requirement." Ibid. They may be
conducted "'without grounds for suspicion,'" as long as the
subject is not chosen "for impermissible reasons such as race."
State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Maryland,
6 A-4295-12T4
supra, 167 N.J. at 483); see also State v. Elders, 192 N.J. 224,
246 (2007).
Here, Trooper Gore testified he wished to ask about
defendant's dispute with the homeowner and his suspicious
movement of the car to a new location.2 No claim has been made
that Gore initiated this second encounter for any impermissible
reason such as race. Moreover, Gore detected the odor of
marijuana as he was approaching defendant's car, before he
detained or questioned defendant.3 Thus, Gore's approach was a
permissible field inquiry that did not implicate defendant's
constitutional rights.
2
Because Gore was not required to have reasonable suspicion to
conduct a field inquiry, we need not consider defendant's
contention that an officer directed him to park in the driveway.
In any event, it is not asserted that Gore was aware whether any
officer had done so. Courts "'consider the totality of the
information available to the officer at the time of the conduct'
to evaluate whether a constitutional defect exists.
'Information acquired subsequently cannot be used to either
bolster or defeat the facts known at the time.'" State v.
Presley, 436 N.J. Super. 440, 456 (App. Div. 2014) (citations
omitted). Gore was also unaware of defendant's later testimony
that he used marijuana but no one had smoked marijuana in the
car between the two encounters.
3
See State v. Shaw, 213 N.J. 398, 410 (2012) (a "field inquiry
is transformed into an investigative stop or detention — a
seizure 'within the meaning of the Fourth Amendment' — when 'a
reasonable person would have believed that he was not free to
leave'" (quoting United States v. Mendenhall, 446 U.S. 544, 557,
100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980))); see also
State v. Gibson, 218 N.J. 277, 291 (2014) (a field inquiry's
questioning should not be "'harassing, overbearing, or
accusatory in nature'").
7 A-4295-12T4
Defendant argues that an officer smelling marijuana must be
in a lawful vantage point. Defendant compares this case with
State v. Cohen, 73 N.J. 331 (1977). However, in Cohen the
officers did not detect the smell of marijuana until after they
improperly opened or compelled the driver to open the doors of
his van. Id. at 344. Here, Gore testified he smelled the odor
of marijuana when he was walking on the public street, and
before he asked defendant to exit the car. Thus, Gore lawfully
smelled the odor of marijuana emanating from defendant's car.
III.
At the suppression hearing, defendant's other claim was to
challenge the "credibility as to whether or not the officer did
or did not smell marijuana" when he approached defendant's car
the second time. On appeal, defendant does not contest the
trial court's credibility finding that Trooper Gore did smell
the odor of burnt marijuana when he again approached the car.
Instead, defendant claims that possession of marijuana is
no longer illegal in all instances, and that the "plain smell"
doctrine no longer applies, after the passage of the CUMMA.
Defendant did not raise this claim or even mention the CUMMA at
the suppression hearing. However, the State does not argue that
defendant's new claim was not properly preserved, and we detect
no "factual shortcoming" in the record regarding defendant's new
8 A-4295-12T4
claim. See State v. Robinson, 200 N.J. 1, 18-22 (2009).
Accordingly, we will allow defendant to raise this claim under
the plain error rule. R. 2:10-2. Because we find no error, we
do not consider whether defendant meets the other requirements
to show plain error. See State v. Koskovich, 168 N.J. 448, 529
(2001).
To address defendant's new claims, we consider: (A) the
precedent of our Supreme Court and this court on the odor of
marijuana and probable cause; (B) the CUMMA; and (C) the effect
of the CUMMA on that precedent in the context of this case.
A.
"'New Jersey courts have [long] recognized that the smell
of marijuana itself constitutes probable cause "that a criminal
offense ha[s] been committed and that additional contraband
might be present."'" State v. Walker, 213 N.J. 281, 290 (2013)
(quoting State v. Nishina, 175 N.J. 502, 515-16 (2003) (quoting
State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div.
1995))); accord, e.g., State v. Pena-Flores, 198 N.J. 6, 30
(2009); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v.
Guerra, 93 N.J. 146, 150-51 (1983); State v. Legette, 441 N.J.
Super. 1, 15 (App. Div. 2015); State v. Chapman, 332 N.J. Super.
452, 471 (App. Div. 2000); State v. Judge, 275 N.J. Super. 194,
201 (App. Div. 1994); State v. Sarto, 195 N.J. Super. 565, 574
9 A-4295-12T4
(App. Div. 1984); State v. Kahlon, 172 N.J. Super. 331, 338
(App. Div. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 97, 70
L. Ed. 2d 88 (1981).4
These and other decisions have "'repeatedly recognized that
. . . the smell of burning marijuana establishes probable cause
that there is contraband in the immediate vicinity and that a
criminal offense is being committed,' and that the detection of
that smell satisfies the probable-cause requirement." Walker,
supra, 213 N.J. at 287-88 & n.1. Here, the "smell of marijuana
emanating from the automobile gave the officer probable cause to
believe that it contained contraband." Pena-Flores, supra, 198
N.J. at 30.
In some of these cases, the odor of marijuana is described
as "strong" or "overwhelming." E.g., id. at 12, 30. Trooper
Gore did not use such adjectives, but he detected the odor of
4
Similarly, the United States Supreme Court and other federal
courts have long "recognized that the odor of an illegal drug
can be highly probative in establishing probable cause for a
search." United States v. Caves, 890 F.2d 87, 90 (8th Cir.
1989) (citing Johnson v. United States, 333 U.S. 10, 13, 68 S.
Ct. 367, 92 L. Ed. 436 (1948)); accord, e.g., United States v.
McCoy, 200 F.3d 582, 584 (8th Cir. 2000). In addition, the
federal courts have recognized a "'plain smell' doctrine," which
"is simply a logical extension of the 'plain view' doctrine,"
and "allows a law enforcement officer to seize evidence of a
crime" without a search warrant. United States v. Angelos, 433
F.3d 738, 747 (10th Cir. 2006). The issue before us is not the
"plain smell" doctrine, but the use of the sense of smell to
establish probable cause.
10 A-4295-12T4
marijuana before he reached the vehicle. In any event, subject
to any pertinent defenses, possession of any quantity of
marijuana is an offense. N.J.S.A. 2C:35-10(a)(4); Vanderveer,
supra, 285 N.J. Super. at 479. "'[T]he distinctive odor of
burnt . . . marijuana'" is evidence of such possession.
Nishina, supra, 175 N.J. at 516-17 (finding probable cause where
the officer only smelled marijuana on his second encounter with
the defendant). Thus, "a strong odor is [not] required";
detection of the "characteristic" "smell of burnt marijuana, by
a trained and experienced State Trooper, emanating from the
passenger compartment of a legally stopped motor vehicle,
created probable cause to believe that a violation of law had
been or was being committed." Judge, supra, 275 N.J. Super. at
197, 201, 203.
Hence, cases have held that the odor of marijuana gives
"rise to probable cause 'to conduct a warrantless search of the
persons in the immediate area from where the smell has
emanated.'" Legette, supra, 441 N.J. Super. at 15 (quoting
Vanderveer, supra, 285 N.J. Super. at 481); see, e.g., Pena-
Flores, supra, 198 N.J. at 12 (an officer smelling marijuana in
an automobile ordered the driver out of the car and searched him
for drugs). Here, the search of defendant revealed he possessed
marijuana and a handgun.
11 A-4295-12T4
Moreover, because the smell of marijuana itself can suffice
to furnish probable cause that a criminal offense has been
committed, the smell of marijuana gave Trooper Gore the right to
arrest defendant for committing an apparent marijuana offense in
his presence.5 "'The "in presence" requirement . . . is
satisfied by the trooper's use of his sense of smell in much the
same manner as if he had used his sight or hearing or touch[.]'"
Legette, supra, 441 N.J. Super. at 29 (quoting Judge, supra, 275
N.J. Super. at 203).6
B.
Defendant claims the New Jersey cases cited above must be
modified due to the 2010 passage of the CUMMA. However,
"'[p]ossession of marijuana' remains an offense" under New
Jersey law. Legette, supra, 441 N.J. Super. at 29 n.9 (citing
5
N.J.S.A. 40A:14-152.1 allows "arrest for any crime committed in
[an] officer's presence." Also, N.J.S.A. 40A:14-152 provides
that officers "upon view may apprehend and arrest any disorderly
person or any person committing a breach of the peace." "Upon
view" means "in the presence of the arresting officer." State
v. Dangerfield, 171 N.J. 446, 460 (2002); see, e.g., Walker,
supra, 213 N.J. at 291, 296 (holding officers could arrest a
defendant smoking a marijuana cigarette in their presence, even
though possession of a small quantity of marijuana is a
disorderly persons offense).
6
In addition, "N.J.S.A. 39:5-25 permits a police officer to
effectuate an arrest for Chapter 4 traffic offenses occurring in
the presence of the officer," including "[s]moking or knowingly
possessing marijuana by the driver of the motor vehicle on the
highway" in violation of N.J.S.A. 39:4-49.1. Judge, supra, 275
N.J. Super. at 203-04.
12 A-4295-12T4
N.J.S.A. 2C:35-10(a)(3) (penalizing "more than 50 grams of
marijuana"), and (4) (penalizing "50 grams or less of
marijuana")). "Marihuana" is still classified as a controlled
dangerous substance. N.J.S.A. 24:21-5(e)(10). Thus, its
possession is prohibited by N.J.S.A. 2C:35-10(a). See N.J.S.A.
2C:35-2 (defining controlled dangerous substance).7
In the CUMMA, the Legislature intended that "a distinction
be made between medical and non-medical uses of marijuana."
N.J.S.A. 24:6I-2(e). The Legislature stated that "the purpose
of this act is to protect from arrest, prosecution, property
forfeiture, and criminal and other penalties, those patients who
use marijuana to alleviate suffering from debilitating medical
conditions[.]" Ibid. The CUMMA creates a limited exception
allowing possession of marijuana for medical use by qualifying
patients who obtain the appropriate registry identification
card. N.J.S.A. 24:6I-6; N.J.S.A. 2C:35-18.
The CUMMA defines a "[q]ualifying patient" as a State
resident "who has been provided with a certification by a
physician pursuant to a bona fide physician-patient
7
Similarly, the CUMMA "leaves untouched the criminal penalties
for" the manufacture, distribution, and dispensing of marijuana,
prohibited by N.J.S.A. 2C:35-5(a)(10)-(12) (addressing the
penalties for "Marijuana"). State v. Wilson, 421 N.J. Super.
301, 310 n.4 (App. Div. 2011), certif. denied, 209 N.J. 98
(2012).
13 A-4295-12T4
relationship." N.J.S.A. 24:6I-3; accord N.J.A.C. 8:64-1.2. The
certification must be signed by the physician who has ongoing
responsibility for, and must "attest[] to the physician's
authorization for the patient to apply for registration for the
medical use of marijuana." N.J.S.A. 24:6I-3; see N.J.A.C. 8:64-
2.5; see also N.J.A.C. 13:35-7A.4. The patient must submit the
certification and other required information to the Department
of Health in order to obtain a registry identification card.
N.J.S.A. 24:6I-4(a); see N.J.A.C. 8:64-2.2.8
The registry identification card "identifies a person as a
registered qualifying patient." N.J.S.A. 24:6I-3; N.J.A.C.
8:64-1.2. The Department of Health must establish a registry
listing "the persons to whom it has issued registry
identification cards," and disclose the information to law
enforcement agencies "as necessary to verify that a person who
8
"Before issuing a registry identification card, the department
shall verify the information contained in the application" by
the patient. N.J.S.A. 24:6I-4(b). "The department may deny an
application . . . if the applicant fails to provide the
information required pursuant to this section, or if the
department determines that the information was incorrect or
falsified or does not meet the requirements of this act."
Ibid.; see N.J.A.C. 8:64-2.2, -2.6. Otherwise, the department
"shall issue a registry identification card, which shall be
valid for two years, to a qualifying patient." N.J.S.A. 24:6I-
4(a); see N.J.A.C. 8:64-3.1. The patient must inform the
department of any change in the information on the registry
identification card. N.J.S.A. 24:6I-4(e). Transfer or
falsification of a registry identification card is a crime.
N.J.S.A. 24:6I-9.
14 A-4295-12T4
is engaged in the suspected or alleged medical use of marijuana
is lawfully in possession of a registry identification card."
N.J.S.A. 24:6I-4(f); see N.J.S.A. 24:6I-4(a).
A registered qualifying patient may engage in the
"'[m]edical use of marijuana[,]' mean[ing] the acquisition,
possession, transport, or use of marijuana . . . as authorized
by [the CUMMA]." N.J.S.A. 24:6I-3; see also N.J.A.C. 8:64-1.2.
A "[m]edical marijuana alternative treatment center" (ATC) may
"provide registered qualifying patients with usable marijuana
and related paraphernalia in accordance with the provisions of
[the CUMMA]." N.J.S.A. 24:6I-3.
The CUMMA provides that "[t]he provisions of N.J.S.A.
2C:35-18 shall apply to any [registered] qualifying patient . .
. acting in accordance with the provisions of [the CUMMA]."
N.J.S.A. 24:6I-6(a); see also N.J.A.C. 8:64-13.11. N.J.S.A.
2C:35-18, as amended by the CUMMA, provides that "[i]f conduct
is authorized by the provisions of [the CUMMA], that
authorization shall, subject to the provisions of this section,
constitute an exemption from criminal liability under this
chapter or chapter 36[.]" Ibid.9
9
Moreover, "[n]o person shall be subject to arrest or
prosecution for constructive possession, conspiracy or any other
offense for simply being in the presence or vicinity of the
(continued)
15 A-4295-12T4
However, N.J.S.A. 2C:35-18 also makes clear that persons
claiming that exemption must show they met the CUMMA's
requirements. "It is an affirmative defense to any criminal
action arising under this chapter or chapter 36 that the
defendant is the authorized holder of an appropriate
registration . . . or is otherwise exempted or excepted from
criminal liability by virtue of any provision of [the CUMMA]."
Ibid. "The affirmative defense established herein shall be
proved by the defendant by a preponderance of the evidence."
Ibid. However, "absence of such authorization shall not be
construed to be an element of any offense in this chapter or
chapter 36." Ibid. "It shall not be necessary for the State to
negate any exemption set forth in this act or in any provision
of Title 24 of the Revised Statutes in any complaint,
information, indictment or other pleading or in any trial,
hearing or other proceeding under this act." Ibid.
Moreover, the CUMMA does not permit any person, including a
registered qualifying patient, to "operate . . . or be in actual
physical control of any vehicle . . . while under the influence
of marijuana," or to "smoke marijuana . . . in a private vehicle
unless the vehicle is not in operation." N.J.S.A. 24:6I-8. "A
(continued)
medical use of marijuana as authorized under [the CUMMA]."
N.J.S.A. 24:6I-6(e); see also N.J.A.C. 8:64-13.11(e).
16 A-4295-12T4
person who commits an act as provided in this section shall be
subject to such penalties as are provided by law." Ibid.
C.
Here, defendant does not claim that he or anyone in his car
was a qualifying patient who had a registry identification card,
or even a physician's certification.10 Because defendant has not
shown that he was the "authorized holder of an appropriate
registration" under the CUMMA, he cannot and does not assert
that his possession of marijuana was exempt under the CUMMA.
N.J.S.A. 2C:35-18. Moreover, defendant had just operated and
was in physical control of his car when Trooper Gore approached
and smelled the odor of burnt marijuana.
Instead, defendant argues the well-established New Jersey
precedent allowing the odor of marijuana to establish probable
cause is no longer good law after the CUMMA. He bases his
argument on the assertion that marijuana is no longer "per se
contraband."11
10
The State represents that, at the time of defendant's arrest,
the Department of Health had not yet established the registry,
registration had not been opened to the patients, and there were
no operating ATCs. Our decision does not depend on those
representations.
11
This term is used in forfeiture law. See In re Two Seized
Firearms, 127 N.J. 84, 89-90, cert. denied, 506 U.S. 823, 113 S.
Ct. 75, 121 L. Ed. 2d 40 (1992).
17 A-4295-12T4
However, under search and seizure law, probable cause can
arise about objects that are not "per se contraband." Probable
cause merely requires "a practical, common sense determination
whether, given all of the circumstances, 'there is a fair
probability that contraband or evidence of a crime will be
found[.]'" State v. Moore, 181 N.J. 40, 46 (2004) (quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76
L. Ed. 2d 527, 548 (1983)).
Defendant argues the CUMMA requires marijuana to be treated
like alcohol. He cites State v. Jones, 326 N.J. Super. 234, 241
(App. Div. 1999). In Jones, we ruled that "the odor of alcohol
[on a driver's breath], combined with [his] admission of
consumption of one bottle of beer," was not "sufficient to
establish probable cause to search the vehicle for open
containers of alcohol" without a warrant. Id. at 237, 244-45.
We noted that Judge "differentiated the smell of marijuana from
the odor of alcohol emanating from either the passenger
compartment or driver by pointing out that, unlike the use of
marijuana, the use of alcohol is not a per se violation of the
law." Id. at 241 (citing Judge, supra, 275 N.J. Super. at 202).
Here, we are not concerned with a warrantless vehicle
search. Moreover, the odor of alcohol on a person's breath
speaks to the contents of the person's gastrointestinal tract.
18 A-4295-12T4
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.
Most importantly, alcohol is an entirely "'lawful'" product
which may be purchased and consumed by any adult without a
permit or license, and is legally available for sale from
innumerable stores, restaurants, bars, and other establishments.
See Nishina, supra, 175 N.J. at 516 (quoting Judge, supra, 275
N.J. Super. at 202). By contrast, the possession, consumption,
and sale of marijuana remains illegal except in the instance of
a registered qualifying patient who obtains medical marijuana
from one of the limited number of ATCs. See Caporusso v. N.J.
Dep't of Health & Senior Servs., 434 N.J. Super. 88, 95-96 (App.
Div. 2014).
The CUMMA provides that possession of a registry
identification card is an affirmative defense, not an element of
the offense. N.J.S.A. 2C:35-18(a). "There is nothing
irrational about inferring that [a registry identification card]
would be produced if in fact it existed." Cf. State v. Ingram,
98 N.J. 489, 499 (1985); State v. McCandless, 190 N.J. Super.
75, 80 (App. Div.), certif. denied, 95 N.J. 210 (1983).
Accordingly, we hold that absent evidence the person suspected
of possessing or using marijuana has a registry identification
19 A-4295-12T4
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. Thus,
we reject defendant's argument.
We stress that this is not a situation where a person
suspected of possessing or using marijuana has proffered to a
law enforcement officer a registry identification card or other
evidence that the person is a registered qualifying patient
under the CUMMA. We note that the "Attorney General Medical
Marijuana Enforcement Guidelines For Police" (Dec. 6, 2012),12
advises that
where it reasonably appears to a police
officer that the CUMMA affirmative defense
applies (e.g., the person in possession of
marijuana presents a valid medical marijuana
registry identification card and otherwise
appears to be complying with all of the
[CUMMA] statutory requirements), an officer
should generally refrain from making an
arrest, filing criminal charges, and/or
seizing the marijuana or associated
paraphernalia.
[Id. at 6.]
However, the Attorney General's guidelines also advise that
"the officer need not assume that the marijuana is medical
12
Available at http://www.state.nj.us/lps/dcj/agguide/
med_marijuana_enf_guide.pdf.
20 A-4295-12T4
marijuana authorized by CUMMA," that it is the responsibility of
the person to assert the affirmative defense, and that
when an officer develops reasonable
articulable suspicion or probable cause to
believe that a marijuana offense is being or
has been committed (e.g., a plain view
observation or "plain smell" of marijuana),
that reasonable articulable suspicion or
probable cause does not dissipate merely
because a suspect asserts that the detected
marijuana is medical marijuana possessed in
accordance with CUMMA.
[Id. at 8, 23.]
The Attorney General advises officers in that situation to "make
appropriate inquiries of the person, and access other available
sources of information" such as a database query of the person's
registry status, "to determine whether the possession or use is
in fact authorized under State law." Id. at 5-9, 24.
We need not address the propriety of the advice in the
Attorney General's guidelines. Here, no claim was or is made
that defendant or anyone in his car was a registered qualifying
patient or otherwise authorized to possess marijuana under the
CUMMA. In that situation, Trooper Gore's smell of the odor of
marijuana emanating from defendant's car gave him probable
cause, which justified his arrest of defendant.
We affirm the judgment of conviction. We remand to the
trial court to address defendant's bail status within twenty
days of this opinion. We do not retain jurisdiction.
21 A-4295-12T4