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Officer comes to your car and says I smell pot, what should you do?


If a police officer smells marijuana coming from your car during a traffic stop, whether or not he is lawfully permitted to search your vehicle is heavily dependent on the circumstances of the individual case. The 4th Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures by the government or law enforcement. However there are exceptions to this general rule including the so-called "motor vehicle exception." 

Under federal law, this exception means that law enforcement officials cannot search your car without a warrant unless there is probable cause to believe that a search would reveal either contraband or evidence of criminality. However New Jersey law makes it tougher for police officers to conduct a search. In New Jersey, a warrantless search of your car is lawful if and only if three specific conditions have been met: 

  1. The stop of the vehicle must be unexpected.
  2. There must be probable cause to believe that the vehicle has contraband or some other evidence of criminality.
  3. There must be exigent circumstances that would make it impractical to obtain a warrant.

The unexpected stop requirement means that the police are only allowed to search your car if the stop was made for an unforeseen and spontaneous reason (such as for a traffic violation). Probable cause is difficult to define but is often referred to as a "well grounded suspicion that a crime has been or is being committed." In other words, it requires an arresting officer to have more than just a hunch before searching your car--they must be able to reference certain facts or evidence that gives them a reason to believe that some sort of criminality has taken place. Finally, the exigent circumstances requirement means that the officer must be able to prove that the circumstances surrounding the search made it impractical or unrealistic to obtain a warrant before conducting the search. 

In order to meet this requirement the officer has to prove that the circumstances made it very difficult or impossible to obtain a warrant at the time of the search or that the evidence as likely to disappear before a warrant could be obtained. Whether the circumstances are exigent will depend on various factors such as the time of day, the ratio of officers to suspects, and how likely it is that the contents of the car could be tampered with or removed. 

Because of these restrictions, the first thing a police officer will do if she smells marijuana coming from your car during a traffic stop is ask for your consent to search the vehicle. You are well within your rights to say "no." If you do not consent to the search, she is not allowed to search your vehicle without a warrant unless the above three conditions are met. Whether a judge would find that these conditions have been met is hard to predict and extremely dependent on the facts of the individual case. 

For instance, in a 2009 case, State v. Pena-Flores, a police officer smelled marijuana coming from a car after pulling the driver over for a traffic violation later at night. The police officer was not able to see any contraband in plain view, but after opening the passenger door he found two clear bags of marijuana on the floor. The New Jersey Supreme Court determined that this search was constitutional despite the fact that it was conducted without a warrant. They found that the probable cause requirement was met when the officer smelled marijuana and that the need to conduct the search was exigent because the car was pulled over late at night and it would not have been possible to obtain a warrant at that time. 

In a similar case from 2010, State v. Pompa, a police officer pulled over a tractor-trailer on I-78 at 8:30 in the morning and was struck by the smell of 20 air fresheners hanging in the cab. Upon lawfully entering the cab he smelled marijuana coming from the sleeper compartment. He decided to search the sleeper compartment, where he uncovered 30 pounds of marijuana hidden in a closet. The Appellate Division found that this search was illegal and did not allow the evidence of the marijuana to be used against the driver. While the smell of marijuana represented probable cause, the search did not meet the exigency requirement because there was no danger that the evidence was going to disappear. The fact that the search was conducted at 8:30 in the morning meant that he should have been able to obtain a warrant before conducting the search.

Thus, if an officer smells marijuana from your car during a traffic stop there is a good chance that this will be found to represent probable cause for a search of the vehicle. However the existence of probable cause alone is not enough to search a car without a warrant in New Jersey--there must also be an exigency which makes it impractical or impossible to obtain a warrant at that time.If an officer conducts a search without a warrant and there is any question as to whether these conditions are present, then the search may be illegal. Any evidence obtained as a result of an illegal is not admissible in a court of law and must be thrown out. Thus, it is important to know when warrantless searches are permitted under the law because even if officers find contraband in your vehicle this evidence can be thrown out if your attorney is able to prove that the search was not properly conducted. 

If you have been charged with criminal offense of drug possession or Driving Under the Influence you need to retain an experienced New Jersey criminal defense attorney to protect your rights. Partner, Jason Charles Matey, Esq. has a wealth of experience in New Jersey criminal defense having served every county in New Jersey.  Contact the experienced NJ criminal defense attorneys of Law Offices of Jason Charles Matey, LLC. for a free initial consultation. Call 609-460-4375 today!




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