N.J.Municipal Court Law Review
INDEX
1. Marijuana Decriminaliza- tion......................................p1 2. Special Rules on pot for individuals under the Age of 21.........................................p2 3. AG Directive 2021-1: Directive Governing Dis- missals of Certain Pending Marijuana Charges............p2 4. Pot Cases already re- solved: Vacate plea or Con- ditional Discharge.............p2 5. What Police can’t do when they smell pot .........p2 6. What police can’t do if smell pot with person under 21.........................................p3 7. Defendant must be ad- vised of the changes in order to uphold Miranda waiver State v Sims.........................p3 8 In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett...........p3 9. Lewd gestures to home camera could be violation of TRO State v EJH................p3
*Editorial assistance by Ben Klein Delaware Law School and Brian Csobor Rutgers University
1. Marijuana Decriminalization
The Governor on February 22, 2021 signed three bills changing the legal status of marijuana. These laws, which went into immediate effect, create a two-tier
framework: Regulated Cannabis.
When the substance is bought, sold, and used under certain conditions, it
is treated as “regulated cannabis” and fully legal in New Jersey. However, regulated cannabis will not be available for several months until a new government body, the Commission, issues rules governing its use.
Legal amounts for Marijuana
The following conduct no longer violates state law:
• Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b);
• Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b);
• Being under the influence of marijuana or hashish, 2C:35-10(b);
• Failure to properly dispose of marijuana or hashish, 2C:35-10(c);
• Possession of paraphernalia for marijuana or hashish, 2C:36-2; and
• Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1.
As part of these revised thresholds, the law creates a new framework for indi-
viduals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish:
• First offense. Officers shall issue a written warning to individuals for their first
offense. Law enforcement agencies will need to build new mechanisms to track the
issuance of such warnings.
• Second or subsequent offense. Individuals who engage in a second or subsequent
violation of the statute are subject to a complaint-summons for a fourth-degree
crime. Under the new law, the prohibitions against distribution of marijuana also
apply to possession with intent to distribute marijuana.
In addition to these changes, law enforcement officers may no longer detain, ar-
rest, or otherwise take into custody an individual for violating certain marijuana or
hashish offenses. Instead, officers should collect the individual’s personal informa-
tion and process them accordingly. Those offenses are:
• Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b);
• Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b);
• Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b); and
• Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b).
All four of these offenses constitute fourth-degree crimes, except when an indi-
vidual engages in their first violation of the distribution offenses (which, as noted
above, only results in a warning). Officers should therefore charge these fourth-de-
gree offenses by complaint-summons rather than complaint-warrant, and should
not fingerprint the individual until their initial court appearance on the summons.
The odor of marijuana or hashish, either burnt or raw, by itself no longer es- tablishes “reasonable articulable suspicion” to initiate a stop or search of a personor their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense. Sourcehttps://www.nj.gov/oag/dcj/agguide/AG-Interim-Guid- ance-Marijuana-Decrim-2020-0222.pdf
2. Special Rules on pot for persons Under the Age of 21
The law also establishes a new framework for indi-
viduals under the age of 21 who possess or consume any
amount of marijuana, hashish, cannabis, or alcohol in
any public place, including a school:
• First offense. Officers shall issue a written warning,
which must include the person’s name, address, and date
of birth, but the warning shall not be provided to the in-
dividual’s parent or guardian.
• Second offense. Officers shall issue a written warning,
and also provide the person with informational materi-
als on community drug treatment services. For individ-
uals under the age of 18, the officer shall provide the in-
dividual’s parent or guardian with copies of the warnings
issued for both the first and second offenses.
• Third or subsequent offense. Officers shall issue a writ-
ten warning and again provide the individual with in-
formation on community drug treatment services. If the
individual is between 18 and 21, then the officer shall
provide notice of the written warning to the communi-
ty drug treatment program; if the individual is under 18,
then the officer shall again provide the juvenile’s parents
or guardian with a copy of the written warning.
Law enforcement officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that sup- port a finding of the violation.
As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codi- fied at N.J.S.A. 2C:33- 15—will require law enforcement agencies to develop new mechanisms to track the issu- ance of these warnings. In the interim, agencies should use existing resources to track this information. Addi- tional guidance on this issue will be forthcoming.
Please note that, under this framework, officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an indi- vidual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S.A. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint- summons and fin- gerprinted at their first court appearance.
3. AG Directive 2021-1: Directive Governing Dismissals of Certain Pending Marijuana Charges
This directive instructs state, county, and municipal prosecutors to dismiss charges pending as of February 22, 2021 for any marijuana offense that is no longer ille- gal under state law. Pending Cases are to be dismissed. Effective immediately, prosecutors shall seek dismissals of any pending charges listed in the following chart in any cases where a juvenile or adult’s conduct occurred on or before February 22, 2021. Dismissals can be re- quested on an ad hoc basis as the cases are scheduled for a municipal or superior court proceeding. In cases involving multiple charges, only the charges listed in the chart are to be dismissed pursuant to this Directive; all other charges and pending matters should remain. 2C:35-5(b)(12) 2C:35-10(a)(3) 2C:35-10(a)(4) 2C:35-10(b). 2C:35- 10(c) 2C:36-2, 2C:36A-1 39:4-49.1
4. Pot Cases already resolved: Vacate plea or Conditional Discharge
For those cases already resolved, pursuant to the new decriminalization laws, the Administrative Office of the Courts will vacate by operation of law any guilty verdict, plea, placement in a diversionary program, or other en- try of guilt on a matter where the conduct occurred prior to February 22, 2021.
Also vacated will be any conviction, remaining sen- tence, ongoing supervision, or unpaid court-ordered fi- nancial assessment of any person who is or will be serv- ing a sentence of incarceration, probation, parole or other form of community supervision as of February 22, 2021 as a result of the person’s conviction or adjudication of delinquency solely for the above listed charges. Effective date. This Directive shall take effect February 22, 2021
5. What Police can’t do when they smell pot
What should an officer do if they smell marijuana com-
ing 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 sus- picion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a mari- juana possession case or even in a low-level (fourth-de- gree) 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.
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-lev- el (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.
6. What police can’t do if smell pot with person under 21
The new law also prohibits law enforcement officers
from engaging in certain actions when investigating an
individual under the age of 21 for possession of marijua-
na, hashish, cannabis, or alcohol, in violation of N.J.S.A.
2C:33-15(a)(1). Importantly, officers who violate these
provisions may be charged criminally with depriving the
individual of their civil rights, regardless of whether the
officer intended to do so. Prohibited conduct includes:
• Officers shall not ask an individual under 21 for con-
sent to search the person to determine a violation of that
crime. (However, if the individual is over 18 and the of-
ficer reasonably believes that other criminal activity is
afoot, the individual may grant consent to search);
• The odor of marijuana, hashish, or alcohol no longer
constitutes reasonable articulable suspicion to initiate a
stop of an individual under the age of 21, nor does it pro-
vide probable cause to search the person’s personal prop-
erty or vehicle to determine a violation of N.J.S.A. 2C:33-
15(a)(1).
• The unconcealed possession of an alcoholic beverage,
marijuana, hashish, or cannabis item in violation of N.J.S.A.
2C:33-15(a)(1) that is observed in plain sight shall not con-
stitute probable cause to initiate a search of an individual
under the age of 21 or that individual’s personal property or
vehicle to determine a violation of any law.
• An individual under the age of 21 who violates N.J.S.A.
2C:33-15(a)(1) shall not be arrested, detained, or other-
wise taken into custody except to the extent required to
issue a written warning or provide notice of a violation
to a parent/guardian, unless the person is being arrested,
detained, or otherwise taken into custody for also com-
mitting another violation of law for which that action is
legally permitted or required.
• When responding to a violation or suspected viola-
tion of N.J.S.A. 2C:33-15(a)(1), law enforcement offi-
cers must activate their body worn cameras, which must
remain activated throughout the encounter. Source https://
www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-De-
crim-2020-0222.pdf
7. Defendant must be advised of the changes in order to uphold Miranda waiver State v Sims
In this appeal, the court determined as a matter of first impression that the Supreme Court’s holdings in State v. A.G.D., 178 N.J. 56 (2003), and State v. Vincenty, 237 N.J. 122 (2019), requiring that police inform a defendant subject to custodial interrogation of specific charges filed against him before he can waive his Miranda rights, also applies to an interrogee who was arrested and ques- tioned prior to any charges being filed, where the arrest was based upon information developed through an ear- lier police investigation.The court also concluded that the trial court erred by admitting the victim’s statement to police through a police officer’s hearsay testimony at trial because defendant was deprived of a meaningful opportunity to challenge the victim’s statement through cross examination at a pretrial hearing or before the jury, where at the pretrial hearing the victim could not recall ever giving the statement to police and he later refused to appear at trial to testify before the jury
In a separate opinion concurring with the result but dissenting from the majority’s extension of A.G.D. to cus- todial interrogations where neither a complaint-warrant nor arrest warrant have been issued, a member of the panel expressed concern that the new rule announced in the majority opinion has the potential to introduce subjectivity, ambiguity, and uncertainty to the adminis- tration of Miranda warnings.
The opinion that the court originally issued on Jan- uary 4, 2021, is being withdrawn and replaced by the accompanying opinion based upon the court having granted the State’s motion to correct the record relating to two trial transcripts, and its motion to reconsider in light of those corrections. Specifically, the transcripts were corrected to reflect that defendant, in response to his pre-interrogation inquiry, was not told of any charge that supported his arrest, rather than a lie about the charge as described in the earlier opinion.
Municipal Court Law Review Spring 2021 Kenneth Vercammen, Editor 732-572-0500 www.njlaws.com page 2
8. In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett In this case of first impression addressing the pro- liferation of forensic evidentiary technology in criminal prosecutions, this appeal required the court to deter- mine whether defendant is entitled to trade secrets of a private company for the sole purpose of challenging, at a Frye hearing, the reliability of science underlying novel DNA analysis software and expert testimony. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the hearing, the State produced an expert who relied on his company’s complex probabilistic genotyping software program to testify that defendant’s DNA was present, thereby connecting defendant to a murder and other crimes. So long as the State uti- lized the expert, this court held that defendant is entitled to the discovery of the software’s proprietary source code and related documentation under a protective order. (A-4207-19T4)
9. Lewd gestures to home camera could be violation of TRO State
v EJHIn this appeal, the court considers whether words and ges- tures directed to a domestic violence complainant, by way of a consensually-activated home security camera, violated the stric- tures of the restraining order issued under the Prevention of Do- mestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Although the restraining order did not expressly prohibit defendant from directing remarks to – or making gestures at – his estranged wife via the home security camera, the order expressly prohibited defendant from “having any oral” or “electronic, or other form of contact or communication with [her].” Because defendant di- rected his comments and gesture to his estranged wife, by way of a camera that was specifically activated so that she could observe his parenting time, defendant was aware of the high probability that she would hear his comments and observe his lewd gesture. Accordingly, this court vacated the trial judge’s order and re- manded for reinstatement of the complaint. (A-4228-19T)
