Probable Cause: Smell of Marijuana | What happens in New Jersey the smell of weed is no longer considered Probable Cause?

STATE OF NEW JERSEY v. PAUL K. EUSTACHE,   Decided November 10, 2020

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

• Issue in case- Search without warrant

The Rahway police department received an anonymous call that a white SUV had pulled into an apartment complex and described: “the driver was a black man with [dreadlocks], and the passenger was also a black man that possibly had a gun in his waistband.” Twerdak was summoned with other officers to the scene at around 8:30 pm that night. When the police arrived at the scene, there was a white SUV parked by apartment two and four men in/around the automobile, including the defendant ad Officer Twerdak smelled raw marijuana emanating from the automobile.  The police were familiar with the location associated with where the disturbance took place.

A week prior to this incident, the police were dispatched to this same location on a report of shots fired. When Twerdak arrived by the parking lot, he identified the white SUV as a white Acura SUV in front of apartment two. Outside of the automobile was Taquan Bowden, who did not fit the description of the caller. However, he was a suspect in the previous week’s shooting. Sitting in the driver’s seat was Eustache, who had matched the description of the driver the caller had described. Twerdak is familiar with the defendant and his automobile from prior police encounters. Twerdak observed Bowden toss something towards the front of the automobile. He exited his marked police car with other officers standing by. Officer Twerdak ordered the four men at the scene to stand at the rear of the vehicle and ordered a pat-down. There was no evidence found in the pat-down, but dispatchers were simultaneously searching for outstanding warrants on the four men. After detecting a strong smell of marijuana, Twerdak felt that it was enough probable cause to search the automobile without a search warrant. Inside the automobile, Twerdak found fireworks, a ski mask, a sawed-off shotgun, and shotgun shells under the security shade but no drugs. He then searched the automobile back to front and eventually, found a bag with an ounce of marijuana “literally right under the tire, almost touching the tire” [Twerdak said in his testimony]. The police gathered the contraband and arrested Bowden, who had an outstanding warrant for his arrest and the defendant because he was the owner of the automobile with the contraband inside.

• Decision Precise

The defense filed a motion to suppress to preserve the defendant’s fourth amendment rights by attempting to “throw out” the evidence found during the warrantless search. The judge denied the defendant’s motion to suppress and found Officer Twerdak’s testimony credible and reasonable. The defendant was convicted of third-degree possession of a sawed- off shotgun.

• Basis of Decision

The appellate court affirmed the trial judge’s decision.  The court found Officer Twerdak had probable cause to check the automobile based upon:

1) Officer Twerdak had years of experience and,

2) the judge believed that the search was conducted by “unforeseeable and spontaneous circumstances” [New Jersey v. Rodriguez].

3) he still smelled the marijuana even after the other contraband was found in the trunk of the car and was still in search of the drugs.

Key Import:

“New Jersey courts have [long] recognized that the smell of marijuana itself constitutes probable cause that a criminal offense ha[s] been committed and that additional contraband might be present.” The smell of marijuana is not an uncommon reason for an officer to search a vehicle. Even if the officer has no search warrant, it has been shown in many cases that the smell of marijuana is enough probable cause for an officer to search property without a search warrant. Fourth amendment rights are important to preserve. However, probable cause is a fluid method used by police to use their best judgment in a situation where potential crime could have been committed if they feel that a search is necessary. The court’s job is to rule if the search was in fact reasonable and, if the defendant’s fourth amendment rights were/ were not violated at the time of the arrest. Officer Twerdak was a credible and a reliable source, there was cause to search the automobile for drugs and potentially other contraband.

When the defense appealed for a suppression hearing and the decision of the court did not change. The appellate court felt that the trial court correctly addressed the issue and upheld the trial judge’s decision and sentencing.