New Jersey Cannabis Odor Is Not Suspicion: N.J.S.A. 2C:35-10c

The operative amount is set by a different section of the same act. N.J.S.A. 2C:35-10a makes it lawful for a person 21 or older to possess, display, purchase or transport one ounce (28.35 grams) or less of usable cannabis, the equivalent of one ounce as a solid, liquid or concentrate product on the Cannabis Regulatory Commission's equivalency calculation, or 5 grams (0.176 ounce) or less of cannabis resin, provided the item was first obtained from a licensed New Jersey cannabis retailer or delivery service and is still in its original packaging or is backed by a sales slip, invoice or receipt. Anything over that is prosecuted as if it were marijuana or hashish under the Comprehensive Drug Reform Act of 1987. Section 2C:35-10c keys off that figure: what defeats the shield is "evidence of quantity in excess" of the lawful amount, not the officer's nose.

There is a second and independent layer for larger quantities. N.J.S.A. 2C:35-10 makes possession of more than six ounces of marijuana or more than 17 grams of hashish a crime of the fourth degree, and paragraph (a)(3)(b)(i) then says that "The odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation" of that paragraph. The same subparagraph adds that a person who violates it "shall not be subject to arrest, detention, or otherwise be taken into custody, 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."

New Jersey backs the rule with criminal exposure for the officer, which is unusual. N.J.S.A. 2C:30-6.1, added by P.L.2021, c.25 and amended in 2023, makes a law enforcement officer responding to an underage alcohol or cannabis matter under N.J.S.2C:33-15 guilty of the crime of official deprivation of civil rights if the officer knowingly commits any of a listed set of acts, which include "requesting that a person consent to a search who is not capable of giving lawful consent or searching a person after wrongfully obtaining that person's consent," "initiating an investigatory stop without reasonable articulable suspicion," and "initiating a search without probable cause." The offense requires a finding that the officer acted with purpose to intimidate or discriminate on a listed ground, and it is graded like any other official deprivation of civil rights under N.J.S.2C:30-6: a crime of the third degree, second degree if bodily injury results.

One everyday consent point is settled by the motor vehicle title rather than the criminal code. R.S. 39:3-29 lets a driver show the registration certificate and insurance identification card on a phone, tablet or computer, and then provides that using the device to display those documents "does not constitute consent for a police officer or judge to access any other contents on the device."

What New Jersey does not do is regulate the roadside consent request itself. A full-text search of the New Jersey General and Permanent Statutes for "consent to search" returns exactly one section, N.J.S.A. 52:17B-235, and it is a transparency provision rather than a limit on officers. It requires the Office of Law Enforcement Professional Standards to publish semi-annual public reports carrying aggregate statistics on State Police motor vehicle stops broken out by station and by the race and ethnicity of the civilians involved, including "requests for consent to search, consent searches conducted, non-consensual searches, and the use of force." N.J.S.A. 52:17B-228(d)(2) gives the same office authority to monitor, review and evaluate the State Police's "consent search forms and reports, non-consensual search and drug detection canine reports, motor vehicle stop reports and logs, mobile video recording system tapes." Both duties run to the Division of State Police, not to municipal departments, so the published numbers cover troopers rather than every officer in the State.

A. 2C:35-10c removes those facts from the reasonable articulable suspicion calculus altogether. A. 2C:30-6(c) that the conviction does not merge with any other offense. 2C:30-6(d) provides that a false statement, a false report, or a failure to prepare a required report about the conduct gives rise to an inference that the officer knew the conduct was unlawful. A. 52:17B-228.