The Fourth Amendment affords you the protection against unreasonable search and seizures. A police officer must obtain a warrant to conduct a search of person or premise, unless the search falls within a specific exception.  Some well established exceptions include when illegal items are in “plain view” of the officer, or consent to a search. (There are other exceptions as well)    Until recently, there was an open question as to weather the pure odor of marijuana by itself would allow an officer to conduct a search without obtaining a warrant.  A recent New Jersey Court Case has now decided this question and given us the answer.   No.

A New Jersey Appellate Court court recently overturned a case that found a man guilty of marijuana possession that sentenced him to jail for over five hundred days. The police officer jumped over a fence after smelling marijuana, arrested the man, and then continued to search the backyard and the house. The Appellate Judges decided that the search was unlawful and violated his Constitutional rights because the odor alone doesn’t establish sufficient reasonable cause for a search without first gaining a warrant from a Judge.

 So what does this mean for you?

If the police violate your rights, any information obtained from doing so is inadmissible in court. If you were arrested solely on the basis that a police officer “smelt” marijuana, and then conducted a search, a suppression motion may be filed with the Court requesting the Judge to exclude evidence found against you. If successful, the State often will not be able to proceed against you on these charges.

If you believe the police overstepped their bounds by searching or arresting you after smelling drugs, the Law Offices of David W. Polsky is here to help you. I, attorney David Polsky, will review all information to make sure that your Constitutional rights were not violated throughout the arrest process. Call the me today at 973 686-9787 for a free consultation.