Recent Supreme Court Decision Discusses Limitations on Exigent Circumstances Exception to Warrant Requirement in the Context of Automobile Searches

Our Supreme Court recently considered whether the mere odor of marijuana coming from a vehicle during a traffic stop allows a search of the engine compartment and trunk.  In State v. Cohen, decided earlier this year, law enforcement had information from a confidential informant that the driver was bringing guns from another State into New Jersey for sale.  A “be-on-the-lookout”, or BOLO went out, and a trooper spotted the car on the New Jersey Turnpike and pulled it over for ostensible traffic violations.  When the trooper stopped the vehicle, he detected a strong odor of raw marijuana coming from the car, numerous air fresheners hanging on the rear-view mirror, and greenish-brown vegetation on the driver’s beard and shirt.  Another trooper arrived to provide backup, and the driver and his passenger were removed from the car, handcuffed and placed in separate patrol cars.  The trooper who stopped the car began a vehicle search, beginning with the passenger compartment where he located a 9mm spent shell casing in the glove compartment, but no marijuana.  The trooper did not seek a search warrant, but searched the engine compartment, where he discovered a rifle and a revolver, as well as the trunk where he located a duffle bag containing hollow point bullets.  He did not recover any marijuana from the vehicle, the driver, or the passenger.

The defendant, who entered a conditional guilty plea to a single count of unlawful possession of a weapon, moved to suppress the evidence recovered from the vehicle based on the fact that the only facts supporting the warrantless search was subjective testimony concerning the smell of raw marijuana without any marijuana actually being located.  The trial court found that the smell, without any detectible pinpoint, established probable cause to search the entire vehicle, and the Appellate Division affirmed.

The Supreme Court reversed and remanded the case.  The Court began by noting that the smell of marijuana constitutes probable cause that a criminal offense has been committed and additional contraband may be present.  However, the Court also recalled that a search which is reasonable at its inception may run afoul of Constitutional restrictions because of its intolerable intensity and scope.  The problem with the search in this case was the absence of meaningful facts other than the mere smell of marijuana coming from the passenger compartment.  The Court cited to cases that presented facts in addition to the mere odor of marijuana coming from that location.  In one case, the odor coming from the car was so strong that it suggested an amount substantially larger than what could be contained in a bag observed in the passenger compartment, coupled with the fact that the rear of the car was “hanging low” suggesting that the trunk contained heavy cargo.  In that case, a search of the truck yielded over 175 pounds of marijuana.  In another case, a search of the passenger compartment yielded a partially burned cigarette and a clear plastic bag containing half an ounce of marijuana.  When searching the rear seat, the officer detected a very heavy odor of unburned marijuana.  Locating nothing in the back seat, he opened the trunk and discovered 30 pounds of marijuana.  The Court’s point was that in both of these cases, there were facts beyond the mere odor coming from the passenger compartment that justified a broader vehicle search.

Against this backdrop, the Court found that the initial search of the driver and passenger were valid, but there was no basis to expand search activities to other parts of the vehicle since there were no unique facts indicating that they may contain marijuana.  As such, the search of the engine compartment and trunk were illegal, and the evidence (e.g., guns and ammunition) had to be suppressed.  The Court also acknowledged that recent changes in New Jersey law concerning possession of marijuana would reduce the number of cases involving the automobile exception to the warrant requirement where the underlying search is based solely on the smell of marijuana coming from a car.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States district courts in New Jersey and New York City. If you have a criminal charge in one of these courts, start planning your defense by contacting Mr. Friedman to discuss your case.



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