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New Jersey Constitutional Violations in Marijuana Cases

During a traffic stop or an arrest for a separate criminal offense, marijuana may be discovered by the police. For a police officer to detain or arrest someone, there must be a certain level of suspicion present. The detention, search or arrest violated a person’s rights under the 4th and 14th Amendments to the United States Constitution and Article 1, Section 7 of the New Jersey Constitution if probable cause or reasonable suspicion did not exist.

For a traffic stop to occur legally, the police officer must have reasonable suspicion that a motor vehicle offense was committed. After the car is stopped, a police officer can only search the car, if he has probable cause to think that marijuana is located in the car and exigent (emergency) circumstances exist. If those two factors exist, then the officer is allowed to search without getting a search warrant. 


A warrant is required before searching a person prior to arrest. Yet, there are certain exceptions to that rule of law. If there is reasonable suspicion to believe that a person is armed and dangerous, then the police officer can “pat-down” or frisk a person to make sure that he has no weapons. If during the frisk, the officer feels a bulge that can be immediately identified by touch as illegal drugs (such as marijuana), then the officer can search the area for the suspected drugs. This is called the “plain feel” exception to the warrant requirement.

Another search warrant exception occurs following an arrest. If the police have probable cause to arrest, then the police can search the suspect to determine if he or she has weapons, contraband or illegal drugs. If a drug like marijuana is found during the search, the officer can seize it.

When the police violate a person’s constitutional rights to be free of illegal searches and seizures, then legal remedies can be obtained. Experienced criminal defense attorneys will file a motion to suppress evidence in the New Jersey municipal court. A motion to suppress will state all of the officer’s illegal actions. A suppression hearing for the motion will be scheduled. During the hearing, the prosecution will offer testimony concerning why the search or arrest happened. The criminal defense lawyer will then cross-examine the officer and may also present defense witnesses. Experienced criminal defense attorneys will reveal any unconstitutional actions of the police.

If the judge finds that the officer performed an unconstitutional search and seizure, then any evidence obtained after these illegal actions will be precluded. In other words, the prosecution will not be able to present this evidence to prove the marijuana possession charge. The prosecutor will then decide to either dismiss the charge or appeal the judge’s ruling to the New Jersey Superior Court-Law Division.