New law: Officers can’t search those under 21, investigate based on odor
By DAVID NAHAN/Sentinel staff
OCEAN CITY – With changes in New Jersey’s marijuana laws combined with juvenile justice reform, Ocean City Police Chief Jay Prettyman wants the public’s patience and understanding.
The new laws legalize the possession and use of marijuana and hashish for adults. Juvenile justice reform severely limits how police can enforce underage use of those drugs and alcohol. Residents and visitors alike who are used to reporting suspected violations to police are not going to get the reaction they’ve come to expect.
“Our community is going to have to develop a tolerance for marijuana smell because it’s legal now and unfortunately no matter how much people may disagree with that, there’s nothing we can do to change it,” he said in an interview last week. Prettyman conducted the interview to get the community talking about the new laws that are in effect and to encourage them to attend a Town Hall meeting at 9:30 a.m. Saturday at the Ocean City Tabernacle so they can ask questions about what the police can and cannot do.
For the most part, it’s what the police cannot do, especially when they encounter people under the age of 21 smoking marijuana or hashish and drinking alcohol.
Local ordinances are being updated to include marijuana and hashish in the smoking ban on the beach, boardwalk and other public spaces. Before, the smoking ban prohibited only tobacco products because the use of marijuana and hashish was prohibited by other laws. However, when members of the public or the police smell the aroma of marijuana, that is no longer cause for police to investigate.
Prior to the new marijuana law, the police used the plain smell doctrine because marijuana has such a unique aroma. Police could use that as a reason to conduct a search of a motor vehicle, a driver or a pedestrian.
Prettyman said the doctrine ruled that it was per se proof that marijuana was there recently and is probably still there so the officer could search for it. Possession and use of marijuana is now legal in New Jersey.
When police encounter drivers, the first step is to determine if that driver is operating under the influence, if the person is impaired. “That really hasn’t changed,” the chief said. “However, if the driver is not impaired, no probable cause exists to search the car. The vehicle and occupant must be released. That is for any age.”
A bigger impact of the law – one that he expects will anger people – is that an officer cannot stop someone, say, on the beach or boardwalk, just because they smell marijuana.
“In years past, if someone walked down the boardwalk and they smelled like marijuana, the officer could stop the person, use the plain smell doctrine to essentially search to see if they’re possessing marijuana and potentially make an arrest for possession,” Prettyman said. “Now, no. The new laws are clear the odor of marijuana raw or burned does not establish reasonable suspicion for a stop or to conduct a search.
“There is nothing we can do. We have to walk past them. If you smell like marijuana, great, enjoy your day,” he said.
“It is going to be a learning lesson for the people in our town who are going to have to tolerate the fact the odor of marijuana is going to be considered the same as the odor of a cigarette now. It’s equal to that,” he added.
Something the chief believes will upset the public more is how they will be limited in dealing with individuals under 21 years of age.
Police, he said, are prohibited from asking anyone under 21 for consent to search them to determine if they are violating marijuana or alcohol offenses. Not only can’t they search them based on aroma, they can’t search them based on what they see.
According to the law, unconcealed possession of an alcoholic beverage, marijuana, hashish or cannabis items in violation of the law are not reason to conduct a search.
“If I see you smoking marijuana and you take it and put it in your pocket, I can’t ask you to take it out and give it to me. I can’t ask you for consent to search you,” Prettyman said.
“This is going to be a learning curve for our officers and for the public. We’re so used to, ‘I saw it, you put it in your pocket, give it to me,’ that doesn’t work anymore. As soon as they conceal we can’t ask consent.”
The law says the police are to give the individual a warning and to ask their name so they can notify the parents or guardians about the violation. Here’s the rub: people under 21 do not have to cooperate and there is nothing the police can do so long as the individuals are passive about it.
If the young person says, “I’m not giving you my name,” Prettyman said, the officer has to explain the process and procedure and request his or her compliance.
“If he still refuses to give me his name, I have to let him go and give him a verbal warning and then do my report that the individual refused to cooperate so we were unable to get information to inform his parents,” he said.
Police believe that means young people are just going to passively resist by not cooperating because there is nothing police can do.
“We feel the kids are going to say, ‘No, I’m not going to give you my name.’ Why would you?”
On a first offense, a young person would only get a warning and have his or her parents notified. On a second offense, the person gets a warning and is handed information about alcohol and drug recovery resources available. On a third offense, they go through the first two steps and then notify a drug and alcohol treatment center so that center can reach out to the person.
If the young person has an alcoholic beverage, it’s the same thing. The police can take the beverage, then request the person’s name and parents’ name to inform them.
All that is if the young person is cooperative.
“All the kids are going to catch onto the fact that once the officer gives the warning, they don’t have to give their name …. Officers will have to disengage.”
To Prettyman, that pretty much means the state did away with the drinking age.
“There are kids who are going to come here for Senior Week (to drink). The only thing they can get in trouble with the police is a warning,” he said. “How silly is that?”
Making the multiple warning system additionally ineffective is that there are no statewide databases. Each community keeps a database of the individuals given warnings, so someone underage can get a first warning in Ocean City, then travel to Sea Isle and get a first warning there and then to Avalon for another first warning and so on.
Juvenile justice reform “didn’t require the kids to participate in the enforcement process. The law is moot on the point on when a kid under 21 refuses to participate. If they wanted the law to have teeth, they would have required the kid to participate or they’ll be charged,” he said.
The chief likens the issue to the problem with dogs on the beach and boardwalk. A federal ruling stemming from a case in Wildwood requires when police encounter a person with a dog on the beach or boardwalk, they have to ask if the animal is a service dog.
“If we see a dog in an unlawful area and we approach the individual … under case law, the only thing an officer can ask is, ‘Is that a service animal?’ If person says yes, the officer has to move on.” They’re not allowed to ask what type of condition the person has, what service they provide because that would be a violation of HIPAA rules. “Hence why we have so many dogs on the boardwalk. Everyone knows that if they’re asked if it’s a service animal, they say yes. We’re not allowed to ask for proof or ID card. That’s why we have such a difficult time enforcing dogs on the boardwalk and beach. It’s caught on that every time we ask someone if that is a service animal, ‘Yes.’”
What has police extra concerned about the way they enforce the new law is that if they violate any of the provisions with those under 21, they can be charged criminally with depriving the individual of his or her civil rights.
Parties in private homes
Prettyman said they are used to getting calls to go to homes because people are complaining about underage drinking or the smell of marijuana.
Although police already have acted as mediators, the new law makes that their primary function in certain cases.
As examples, if a family vacationing in a home complains about all the marijuana smoke wafting in from a neighboring residence, the police can only ask the parties to come to an agreement such as closing their windows.
When it comes to underage drinking parties, they are particularly handcuffed. If they go to a home because of a complaint, even if they see alcohol consumption, police cannot ask a minor for consent to search the property. “We’re literally going to be on the doorstep giving them a warning for their noise and leaving. Whether they agree or don’t agree with the warning, we’re leaving.
“That’s going to be frustrating to the callers that want that behavior stopped. The policeman comes and says, ‘Hey, can you stop this? It’s really a problem for your neighbors. We request your compliance,’ and then the policeman leaves and the person says, ‘What was that? I called and the cop didn’t do anything.’ Well, he did everything he’s allowed under the law. Unfortunately, the law has changed.”
The police, he said, didn’t change the rules. “We’re responsible for enforcing the rules that were set for us.”
The chief believes if the referendum that legalized marijuana use and possession among adults also explained the changes to enforcement among minors, it would not have passed.
In the past, the police were able to use what they call a station house adjustment, meaning they could take a minor to the police station over an issue such as underage possession of alcohol, contact their parents and work things out and have the young people do a type of community service, such as cleaning police cars rather than putting them into the legal system.
The idea was to curb the behavior, to stop underage drinking, and it had.
Beefing up police, calling police
In addition to the force of 64 year-round police officers in the Ocean City Police Department, Prettyman is requesting a 25-percent increase in summer seasonal officers for a total of 60 so he can bolster police presence in the downtown and on the boardwalk. He said based on what he has seen on recent weekends with increased visitors to the town, he wants to be better prepared for the summer.
He also wants the public to notify police if they see a problem, not waiting until days later to complain on social media because by then it is too late.
“The people that post on social media rather than call the police department, that’s extremely frustrating,” he said. For his department to address a problem, “I need to know what’s happening that night, not on Monday morning when you decide to go to social media and say how bad it was at the North Street playground on Saturday night …. If we got that one call, we would have immediately sent an officer down there and addressed and solved the problem.”
He explained the police have nine miles of coverage “from toll booth to toll booth” (the Longport bridge to the bridge at Corson’s Inlet). “They can’t cover nine miles everywhere so that’s why we have to partner with our community and have them call us so we can redeploy those officers to help.
Residents and visitors are urged to call the OCPD’s main number at (609) 399-9111. They should only directly dial 911 if it is an emergency.
Town Hall meeting
The topics at the meeting at 9:30 a.m. Saturday at the Tabernacle include the new marijuana laws, juvenile justice reform’s impact on police actions, police liability, how the community can help and how the police will use existing ordinances on noise, disorderly conduct and other violations to “curb disruptive behavior by juveniles or adults.”