NJ Warrantless Search by Smell Lawyer

The “Plain Smell” Doctrine

New Jersey has long recognized the Plain View Doctrine as an exception that allows police to conduct a search, seize property and/or make an arrest without a warrant. A lesser known exception to the Warrant Requirement is the so called Plain Smell Doctrine. The crux of the principal is that, like a police officer’s sense of sight, items that are illegal and smelled by law enforcement, should be subject to immediate search and seizure. If you or a loved one was arrested following police smelling something, for example, marijuana, our lawyers can assist you in challenging the related arrest.  A lot of times the police officers will judge based on the race or appearance of someone and not actually smell anything but use it as a way to bootstrap an illegal search.  

NJ Law: Search as a Result of Smelling Drugs, Alcohol or Other Evidence

The rationale for this exception to the Warrant Requirement is founded on the ideal that a police officer’s sense of smell may also provide a basis for immediate recognition of criminal conduct and ensuing Search & Seizure. In accordance with State v. Judge, 275 N.J.Super. 194 (App.Div.1994), probable cause may be established where a police officer smells something like marijuana which, in his training and experience, creates the reasonable belief that a violation of law is being committed. The doctrine does not, however, permit police to conduct a limitless search. In this regard, police must possess not only probable cause to conduct a warrantless search but also Exigent Circumstances. As a result, where the accused nor third parties pose a threat of destroying evidence during the time lag to obtain a warrant, an exigency does not exist to permit a warrantless search beyond what was originally smelled. Such was the case in State v. Prompa, 414 N.J.Super. 219 (App.Div.2010) where a state trooper, who smelled marijuana in the tractor area, attempted to search the trailer of a trucker’s rig without obtaining a warrant.  A few other states are eliminating the smell of marijuana as a reason to search.