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The New Jersey Police Chief Magazine | March 2022
any person who is or will be serving a sentence of incarceration , probation , parole or other form of community supervision as of February 22 , 2021 as a result of the person ’ s conviction or adjudication of delinquency solely for the above listed charges . Effective date . This Directive shall take effect February 22 , 2021
7 . What can an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop ?
First , the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence , in violation of N . J . S . A . 39:4-50 . If so , the driver may be arrested and the vehicle may be searched .
If the driver is not found to be under the influence , the new laws are clear that the odor of marijuana , either burned or raw , by itself does not establish reasonable suspicion to justify a continued stop , nor probable cause to conduct a search of the vehicle or the person , in a marijuana possession case or even in a low-level ( fourth-degree ) possession with intent to distribute marijuana case .
As a result , the vehicle and occupants must be released once the initial reason for the stop has been addressed .
8 . May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana ?
No , the new laws are clear that the odor of marijuana , either burned or raw , by itself does not establish reasonable suspicion to justify or continue a pedestrian stop . In addition , the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level ( fourth-degree ) possession with intent to distribute marijuana case . The age of the person being stopped is irrelevant in these situations .
9 . What police can ’ t do if smell pot or alcohol with person under 21
The new law also prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana , hashish , cannabis , or alcohol , in violation of N . J . S . A . 2C : 33-15 ( a )( 1 ).
Importantly , officers who violate these provisions may be charged criminally with depriving the individual of their civil rights , regardless of whether the officer intended to do so . Prohibited conduct includes :
• Officers shall not ask an individual under 21 for consent to search the person to determine a violation of that crime . ( However , if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot , the individual may grant consent to search );
• The odor of marijuana , hashish , or alcohol no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of 21 , nor does it provide probable cause to search the person ’ s personal property or vehicle to determine a violation of N . J . S . A . 2C : 33-15 ( a )( 1 ).
• The unconcealed possession of an alcoholic beverage , marijuana , hashish , or cannabis item in violation of N . J . S . A . 2C : 33- 15 ( a )( 1 ) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual ’ s personal property or vehicle to determine a violation of any law .
• An individual under the age of 21 who violates N . J . S . A . 2C : 33-15 ( a )( 1 ) shall not be arrested , detained , or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent / guardian , unless the person is being arrested , detained , or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required .
• When responding to a violation or suspected violation of N . J . S . A . 2C : 33-15 ( a )( 1 ), law enforcement officers must activate their body worn cameras , which must remain activated throughout the encounter . Source https :// www . nj . gov / oag / dcj / agguide / AG-Interim-Guidance-Marijuana-Decrim-2020-0222 . pdf
10 . The failure of police to advise the defendant of the charges against him will result in a suppression of his statement despite Miranda State v Sims 466 N . J . Super . 346 ( N . J . Super . 2021 )
Court Expanded ' Miranda ' to Interrogees Who Have Not Been Formally Charged
Having considered defendant ' s contentions in light of the record and the applicable principles of law , the court reverses the denial of his motion to suppress his statement because defendant was not properly advised of the status of the charges against him prior to his interrogation .
In this appeal , the court determined as a matter of first impression that the Supreme Court ' s holdings in State v . A . G . D ., 178 N . J . 56 ( 2003 ), and in State v . Vincenty 237 N . J . 122 ( 2019 ), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his in Miranda rights , also applies to an interrogee who was arrested and questioned prior to any charges being filed , where the arrest was based upon information developed through an earlier police investigation .
11 . Mere report of black males robbing 7-11 not sufficient to stop car with black males in it State v Nyema 465 N . J . Super . 181 ( App . Div . 2020 )
The police received a dispatch transmission that a 7-Eleven store had been robbed by two black males , one of whom had a gun . A subsequent dispatch indicated the two men fled on foot . The police officer was familiar with the 7-Eleven store and responded .
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