NJ man's arrest upheld despite medical marijuana law

The state's medical marijuana law cannot be cited as a reason to avoid a law enforcement officer's use of probable cause.

George A. Myers has lost an appeal to the Superior Court of New Jersey Appellate Division against his 2013 drug and gun conviction.

Myers, who was sentenced to five years in prison that year, argued that a handgun and marijuana discovered by a New Jersey state trooper during an interrogation should have been thrown out largely on the basis of a 2010 law legalizing medical marijuana.

In his argument to the court, Myers cited the 2010 Compassionate Use Medical Marijuana Act, stating that the odor of the drug cannot serve as a basis for probable cause that a marijuana offense is being committed.

An appeals court on Tuesday disagreed and has affirmed the initial decision.

The case hearkens back to the early morning hours of Jan 7, 2012, when New Jersey State Police followed up on a shots-fired call in Fairfield Township.

Arriving on the scene of a residential party, a responding officer came in contact with Myers and two others as they sat in a car.

The smell of burnt marijuana eventually led the officer to search Myers' vehicle and arrest all three men. A handgun was recovered during the search and Myers was charged with unlawful possession of a handgun and possession of marijuana.

A trial court hearing followed in Superior Court in Cumberland County before Judge James R. Swift in which Myers motioned to suppress both the drug and gun charges, denying that anyone in his car smoked marijuana that night.

The court found the trooper's actions to be lawful and also credited his sense of smell over that of marijuana smokers.

"(…) because (trooper's) sensitivity to the odor of marijuana could exceed that of a marijuana smoker, such as the defendant, (trooper) could smell marijuana that defendant said he did not smell," the court wrote in its decision.

Myers eventually pleaded guilty to the gun charge, while the state dismissed the marijuana charge following a plea agreement.

Myers was convicted and sentenced to five years in prison with one year of parole ineligibility.

He appealed the conviction and argued two points: that because marijuana is no longer illegal in every instance in New Jersey, "plain smell" should be modified; and that the officer had no probable cause to approach the vehicle.

The appeals court found the trooper's interrogation of Myers to be a "permissible field inquiry" that did not implicate Myers' constitutional rights, and that police can still use the smell of marijuana to justify a search.

The court also noted that Myers and his passengers made no claims to be registered medical marijuana users, nor could a medical marijuana user even be allowed to drive while using the drug.

"Accordingly, we hold that absent evidence, the person suspected of possessing or using marijuana has a registry identification 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," the court wrote. "Thus, we reject defendant's argument."

Judge George S. Leone delivered the opinion of the court.

Daniel J. Kov; (856) 563-5262; dkov@gannettnj.com