Legal landscape note: This article was originally published in 2015 and describes the law as it stood at that time. New Jersey law changes frequently -- contact us to discuss how the current law applies to your situation.
Overview
When New Jersey enacted the Compassionate Use Medical Marijuana Act (CUMMA) in 2010, some questioned whether the law changed the rules for police conducting searches based on the odor of marijuana. In September 2015, the New Jersey Appellate Division answered that question definitively in State v. Myers: the smell of burning marijuana still provides probable cause for arrest and search, except in the limited circumstance where the suspect is a registered medical marijuana patient who presents valid documentation.
For non-patients in Cumberland, Gloucester, and Salem counties — and throughout the state — marijuana possession remains a criminal offense, and the odor of marijuana continues to justify police action.
The State v. Myers Decision
On September 8, 2015, a three-judge Appellate Division panel ruled that the limited exception created by CUMMA for registered patients does not transform marijuana into legal contraband for the general public. Judge George Leone, writing for the panel in State v. Myers, held: "We hold that absent evidence the person suspected of possessing or using marijuana has a registry identification card, detection of marijuana by the sense of smell, or by the other senses, provides probable cause to believe that the crime of unlawful possession of marijuana has been committed."
Judges Jack Sabatino and Michael Guadagno joined the opinion.
The Underlying Facts
George Myers was arrested on January 7, 2012, after State Trooper Matthew Gore responded to a 911 call reporting gunshots near a residence in Fairfield Township, Cumberland County. Gore encountered Myers in a parked car near a house where a party was taking place. Myers initially told the trooper he had arrived to pick up his cousins.
Gore walked toward the residence but then heard a woman shouting at Myers, who had pulled his car into a nearby driveway. At that point, Gore smelled burning marijuana. He ordered Myers and the two other vehicle occupants to exit the car. All three were arrested, and a search of the vehicle revealed a small amount of marijuana and a handgun.
Myers pleaded guilty to second-degree unlawful possession of a weapon in exchange for dismissal of the drug charge, preserving his right to appeal the denial of his suppression motion.
Myers's Arguments on Appeal
Myers raised two principal arguments. First, he contended that CUMMA effectively decriminalized marijuana possession, rendering marijuana no longer "per se contraband." If marijuana is not inherently contraband, he argued, the smell of burning marijuana cannot provide probable cause.
Second, Myers analogized marijuana to alcohol: while the smell of alcohol on a driver's breath justifies field sobriety testing, it does not justify a warrantless search of the vehicle.
The Court's Rejection of Both Arguments
The Appellate Division rejected both arguments. Regarding the "per se contraband" theory, the court noted that probable cause can exist for objects that are not inherently illegal. Under State v. Moore, 178 N.J. 13 (2003), probable cause requires only "a practical, common-sense determination" whether there is a "fair probability" that contraband or evidence of a crime will be found.
The alcohol analogy failed because alcohol is legal to purchase and consume, whereas marijuana remains illegal for non-patients. As Judge Leone wrote: "By contrast, the possession, consumption, and sale of marijuana remains illegal except in the instance of a registered, qualified patient who obtains medical marijuana from one of the limited number of [alternative treatment centers]."
The Role of CUMMA
CUMMA, codified at N.J.S.A. 24:6I-1 et seq., creates a limited exception to New Jersey's marijuana prohibition. To qualify, a patient must:
- Be certified as needing medical marijuana by a physician registered with the program
- Have their name entered into a statewide registry
- Possess a valid registry identification card
- Purchase marijuana from a state-licensed Alternative Treatment Center
When a registered patient presents their card during a traffic stop, the odor of marijuana no longer provides probable cause for a search related to marijuana possession. However, the patient may still be subject to investigation for other offenses, including driving under the influence.
What Changed in 2021
It is important to note that the legal landscape shifted significantly after this 2015 decision -- and the central holding of Myers is no longer good law. New Jersey voters approved recreational marijuana legalization in November 2020, and the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) took effect in 2021. Under current law, possession of small amounts of cannabis is no longer a criminal offense for adults 21 and older.
The odor rule flipped outright. N.J.S.A. 2C:35-10c now provides that the odor of cannabis, standing alone, does not constitute reasonable articulable suspicion to initiate a stop or search. And in State v. Cohen, 254 N.J. 308 (2023), the New Jersey Supreme Court held that the smell of marijuana alone cannot justify a warrantless search of a vehicle. In other words, the exact police conduct that Myers approved in 2015 is now generally prohibited. This blog addresses the law as it existed at the time of the Myers decision; the sections above should be read as legal history, not current law.
Key Takeaways
- Under current law, the odor of cannabis alone is NOT reasonable articulable suspicion for a stop or search -- N.J.S.A. 2C:35-10c
- The New Jersey Supreme Court confirmed in State v. Cohen, 254 N.J. 308 (2023), that the smell of marijuana alone cannot justify a warrantless vehicle search
- State v. Myers (2015), which treated marijuana odor as probable cause, reflects the pre-legalization era and no longer controls
- CUMMA's registered-patient framework has been superseded by adult-use legalization under CREAMMA (2021) and the Jake Honig Act for medical cannabis
- If a search of you or your vehicle was based on the smell of cannabis, that search may be challengeable -- talk to a defense attorney
Reviewed by Britt J. Simon, Esq., Managing Partner — Simon Law Group, LLC — May 2026
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