Plain Smell Doctrine in New Jersey
In New Jersey, an individual does not have a reasonable expectation of privacy concerning odors exposed to the public. Application of this concept often arises in cases involving the smell of marijuana. In State v. Judge, 275 N.J. Super. 194 (App. Div. 1994), State Troopers lawfully stopped a vehicle for speeding and detected the odor of burnt marijuana after the driver opened his window. When the troopers ordered the driver and his two passengers out of the car to search their persons for contraband, they found drug paraphernalia on the two passengers.
Later, focusing their attention to the care, the troopers found a bag of marijuana and two marijuana cigarette butts on the console, more of the drug inside a gym bag on the back seat and, with the driver’s consent, another marijuana filled gym bag in the trunk. The court found that the smell of burnt marijuana was sufficient to establish probable cause to search the interior of the motor vehicle.
The court also held that the officer need not determine when the marijuana was smoked. The odor alone justified the search. The “plain smell” doctrine, a derivative of the “plain view” doctrine, applied in Judge has since been applied outside of a motor vehicle. In State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995), a police officer encountered two individuals on an outdoor porch and observed two individuals standing near the curb. While on the porch, the officer detected “the distinctive odor of burnt and raw marijuana”. Vanderveer, at 477.
The court, relying on the Judge case, held that the smell of marijuana gave rise to probable cause “to conduct a warrantless search of the persons in the immediate area from where the smell [had] emanated.” Vanderveer, at 481.
Every individual in New Jersey entitled to a reasonable expectation of privacy. Citizens are all entitled to be free of unreasonable searches and seizure. Every situation and circumstance requires its own analysis. If your constitutional rights have been violated by an unlawful search or seizure, you may be entitled to the suppression of evidence and the ultimate dismissal of your criminal charges.