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This document contains frequently asked questions (FAQs) to address some of the substantial issues, concerns, and situations that will arise for law enforcement as we all strive to understand, implement, and apply the new cannabis legalization and marijuana decriminalization laws. We anticipate expanding the FAQs as we encounter additional, and more subtle and complex, issues and gain experience and insight into the challenges presented by the new laws.

  1. What should 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.
     
  2. 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.
     
  3. What happens when a law enforcement officer encounters an individual under the age of 21 who is in possession of marijuana, hashish, cannabis, or alcohol?

    Law enforcement officers must be cautious when they encounter an individual under the age of 21 who is in possession of marijuana, hashish, cannabis, or alcohol. The officer can seize the marijuana, hashish, cannabis, and alcohol and issue the appropriate written warning. However, the new law also sets forth the following prohibitions on officers when investigating possession or consumption of marijuana, hashish, cannabis, or alcohol by an underage individual to determine a violation of N.J.S.A. 2C:33-15:
    • Officers may not request consent from an individual who is under the age of 21;
    • Officers may not use odor of marijuana to stop an individual who is under the age of 21 or to search the individual’s personal property or vehicle;
    • Officers who observe marijuana in plain view will not be able to search the individual or the individual’s personal property or vehicle.
    • Officers may not arrest, detain, or otherwise take an individual under the age of 21 into custody for a violation of N.J.S.A. 2C:33-15 except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian
     
  4. Does the new law alter the use of my body worn camera (BWC) in any way?

    The law requires that whenever an officer is equipped with a BWC, the BWC must be activated when responding to or handling a call involving a violation or suspected violation of the amended N.J.S.A. 2C:33-15, which addresses the underage possession or consumption of alcohol, marijuana, hashish, or cannabis. The BWC may not be deactivated for any reason throughout the entire encounter. Underage refers to people under the age of 21.
     
  5. How does decriminalization and legalization change fingerprinting?

    Marijuana is still by definition pursuant to N.J.S.A. 2C:35-2 a “controlled dangerous substance,” and, therefore, appropriately charged violations involving marijuana or hashish are still subject to fingerprint compliance under N.J.S.A. 53:1-18.1. However, when law enforcement officers encounter an individual who has violated N.J.S.A. 2C:35-5(b)(12)(b) (distribution/possession with intent to distribute 1 ounce or less) or N.J.S.A. 2C:35-10(a)(3)(b) (possession of more than 6 ounces), the officer is prohibited under the law from arresting, detaining, or otherwise bringing that individual into the station, which means the officer will be unable to fingerprint the violator at the time of the incident. Therefore, those individuals must be fingerprinted at their first court appearance.

    Individuals under the age of 21 who are in violation of N.J.S.A. 2C:33-15(a)(1) are precluded from being fingerprinted under the new law

A21 - Legislation Act

A1897 - Marijuana Decriminalization

S3454 - Underage Possession & Use

AG Directive 2021-1 (Directive Governing Dismissals of Certain Pending Marijuana Charges)

Interim Guidance Regarding Marijuana Decriminalization

FAQs

Marijuana Legalization Bill Poses Serious Threats to Your Job

The State Legislature this morning passed legislation to formally legalize the use of marijuana in accordance with the Constitutional Amendment that passed in November.  Unfortunately, the legislation was amended with language that contains severe penalties on law enforcement officers who attempt to use the odor or possession of marijuana AND alcoholic beverages as a reason to stop and search minors to enforce the law.  We are urging every member of law enforcement to avoid approaching people with marijuana until a proper legal analysis and direction can be developed once this law is signed by the Governor.

The legislation is treacherous to you because it creates a penalty of 3rd Degree Deprivation of Civil Rights if an officer uses the odor or possession of marijuana or alcoholic beverages as the reason for initiating an investigatory stop of a person.  The new law states a law enforcement officer can not use the odor of marijuana or alcohol as reasonable articulable suspicion to initiate an investigatory stop.  The new law states a minor CAN NOT consent to be searched and that a law enforcement officer no longer has probable cause to search a minor for illegally using marijuana or alcohol.  And if an officer violates a minor’s rights by using pot or alcohol as the reason for a search then the officer will be charged with deprivation of civil rights.

This bill dangerously ties your hands.  It establishes penalties of only warnings for illegal use by minors of marijuana or alcohol BUT it essentially prevents an officer from even approaching a person suspected of being a minor.  Absent the commission of another crime or clear legal guidance officers are being forced to ask themselves if writing a warning is worth risking being accused and charged with a 3rd degree crime?  The mere smell of marijuana and its use in your presence will no longer be grounds to search an individual.

While marijuana is now legal for those 21 and older this language is an assault on our ability to do our job and to enforce the law.  This language is an attack on law enforcement officers by making us the target of punishment rather than the individuals breaking the law.  This language will have dangerous consequences for the public and the police.