Recent Posts

New Jersey Estate Tax: What You Should Know
Estate Planning for Same Sex Couples
The Court Grants Motion to Suppress Good Case For The Defense Bar
Racial Profiling--4th Amendment Injustice related to evidence supporessed
No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range


Criminal Law
Current Events
Introduction of Jason Matey's blog
Speedy Trial Defense not triggered after 27 month delay
Wills: The Basics
powered by

My Blog

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!

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

Comments RSS
Designated driver service on Monday, December 03, 2012 7:22 AM
The information you shared through your post is functional. I admire your work. Wish you all the luck for all your blogging efforts.
Reply to comment

credit card authorization on Tuesday, December 04, 2012 3:39 AM
That's really a well sharing about the Officer comes to your car and says That he smells pot, what should we do? Tanks for this effective allocation and carry on...
Reply to comment

cheaper car insurance on Saturday, December 15, 2012 12:08 PM
Just useful allocation about doing the right thing while an officer comes to my car. Your tips seems very effective to me. I will definitely follow your tips and keep it up! :)
Reply to comment

Drive me home on Thursday, December 27, 2012 9:11 AM
It is totally unlawful to drive a car with drunken situation. But it is duty of officer to check the car and people inside to prevent from any kind of accidents and unlawful acts.
Reply to comment

used forklifts sydney on Saturday, January 19, 2013 8:00 AM
Thanks for sharing the information regarding the car . You sharing great information through this post. Keep sharing!!
Reply to comment

orange county moving service on Wednesday, January 23, 2013 7:16 AM
That's an alarming sharing to me. I got your content about that Officer comes to your car and says I smell pot, what should you do? It can be happens any time and any where with us. So we have to be prepare. Thanks!!
Reply to comment

bicycle accident compensation lawyers on Monday, February 04, 2013 6:05 AM
Most of the accident happen because of this kind of addiction of alcohol, marijuana. It is important to strictly follow the law and punish the accused
Reply to comment

car accident compensation on Wednesday, February 06, 2013 5:47 AM
I am sure that your blog post will help many people like me. It is very informative blog. I came to know about many facts through your post.
Reply to comment

click here on Monday, March 04, 2013 4:36 AM
The insurance certificate or cover note issued by the insurance company constitutes legal evidence that the vehicle specified on the document is insured.
Reply to comment

Longines Presence Replica Watches on Saturday, April 20, 2013 1:01 AM
We offer you with the cheapest and high quality Longines Presence Replica Watches which are the perfect copies of genuine ones. All of them are the perfect combination of quality and price.
Reply to comment

fake oakley on Tuesday, May 07, 2013 1:34 AM
There's the moving news you've written.Hope you like mine,too!
Reply to comment

Cheap Real Air Jordans on Wednesday, May 15, 2013 1:53 AM
Thanks for sharing this great article! That is very interesting I love reading and I am always searching for informative information like this. LY
Reply to comment

tibet trekking on Sunday, May 19, 2013 12:03 AM
Hello, I think your blog might be having browser compatibility issues. When I look at your blog in Safari, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, terrific blog!
Reply to comment

harpirisenergy on Monday, May 20, 2013 3:22 AM
I will immediately snatch your rss as I can't in finding your e-mail subscription hyperlink or newsletter service. Do you've any? Please let me understand so that I could subscribe. Thanks.
Reply to comment

louboutin shoes on Tuesday, May 21, 2013 2:58 AM
A lot of excellent full color images are published on conventional clicks using this procedure.
Reply to comment

Add a Comment

Your Name:
Email Address: (Required)
Make your text bigger, bold, italic and more with HTML tags. We'll show you how.
Website Builder
provided by Vistaprint