stating that "[t]he vagueness doctrine is premised on the notion that the law must 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'"
How later courts described this case
- stating that "[t]he vagueness doctrine is premised on the notion that the law must 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3691-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRELL JACKSON,
Defendant-Appellant.
_______________________
Submitted December 5, 2023 – Decided December 12, 2023
Before Judges Haas and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 21-10-0651.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa A. Aiello, Assistant Deputy Public
Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Amanda Gerilyn Schwartz, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
After an evidentiary hearing, the trial court rejected defendant Terrell
Jackson's motion to suppress evidence found on his person and in a car in which
he was a passenger during the course of a motor vehicle stop. Thereafter,
defendant pled guilty to second-degree unlawful possession of a handgun in
violation of N.J.S.A. 2C:39-5(b)(1). The trial court sentenced defendant to five
years in prison with a forty-two-month period of parole ineligibility.
On appeal, defendant raises the following contentions:
POINT I
THE WARRANTLESS SEARCHES IN THIS CASE
WERE UNREASONABLE, BECAUSE THEY
OCCURRED DURING THE [FIFTY]-DAY PERIOD
AFTER THE CONSTITUTIONAL AMENDMENT TO
LEGALIZE MARIJUANA HAD GONE INTO
EFFECT BUT BEFORE [THE CANNABIS
REGULATORY, ENFORCEMENT ASSISTANCE,
AND MARKETPLACE MODERNIZATION ACT
(CREAMMA), N.J.S.A. 24:6I-31 TO 56] BECAME
LAW, WHEN THERE WAS UNDENIABLE
CONFUSION OF CONSTITUTIONAL DIMENSION
AS TO WHETHER SIMPLE POSSESSION OF
MARIJUANA WAS STILL AN OFFENSE.
POINT II
BECAUSE THE LAW LEGALIZING MARIJUANA
DEMANDS RETROACTIVE APPLICATION, THE
DENIAL OF THE SUPPRESSION MOTION MUST
BE REVERSED.
A-3691-21
2
Having considered these arguments in light of the record and the
applicable law, we conclude they are without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm
defendant's conviction and sentence and add the following comments.
The search involved in this case took place on February 3, 2021. Officer
Rodrigo Cervantes was driving his patrol car through a motel parking lot during
a check of the premises. He had his car windows open so he could hear what
was going on outside.
Cervantes came upon a white Pontiac in front of the lobby entrance, which
blocked him from going to the back parking lot of the motel. As Cervantes
waited behind the Pontiac, the driver and the front seat passenger got out of the
car. "As the[ir] doors opened, [Cervantes] immediately smelled the odor of
marijuana, which [he] knew that the wind was coming from that direction, so
[he] deemed that it was coming from inside the [Pontiac]." When the driver saw
Cervantes, she returned to the car and began to drive to the back of the parking
lot.
The Pontiac's brake light was not working and Cervantes decided to
conduct a vehicle stop. While he was at the driver's door, Cervantes again
smelled marijuana. Cervantes asked the driver to get out of the car.
A-3691-21
3
Cervantes saw defendant in the back seat of the Pontiac. Defendant was
"pulling his pants up." After backup arrived, Cervantes asked defendant to get
out of the car and told him that "the vehicle smelled like weed." Defendant
admitted "that he had marijuana on him." Cervantes searched defendant and felt
bags of marijuana in his pocket. Cervantes then arrested defendant and placed
him in handcuffs. 1
During a search incident to the arrest, Cervantes found a loaded handgun
on defendant's inner thigh. Inside the car, Cervantes found empty bags of
marijuana in the "back area" of the Pontiac and a scale in the center console.
Defendant told Cervantes that the marijuana in the car "was his."
At the time of the February 3, 2021 stop and search, "New Jersey courts
. . . recognized that the smell of marijuana itself constitutes probable cause that
a criminal offense ha[s] been committed and that additional contraband might
be present." State v. Walker, 213 N.J. 281, 290 (2013) (alteration in original)
(internal quotation marks omitted) (quoting State v. Nishina, 175 N.J. 502, 515-
16 (2003)). Thus, upon detecting the smell of marijuana, police were authorized
"to conduct a warrantless search of the persons in the immediate area from where
1
Defendant was twenty years old at the time of his arrest.
A-3691-21
4
the smell [had] emanated." Nishina, 175 N.J. at 516 (alteration in original)
(quoting State v. Vanderveer, 285 N.J. Super. 475, 481 (App. Div. 1995)).
On February 22, 2021, however, the New Jersey Cannabis Regulatory
Enforcement Assistance and Marketplace Modernization Act ("CREAMMA")
became effective. As our Supreme Court recently explained:
Through CREAMMA, the Legislature fashioned "a new
approach to our marijuana policies" and "legaliz[ed] a
new form of marijuana to be referred to as cannabis."
N.J.S.A. 24-6I-32(a). CREAMMA's amendments to
N.J.S.A. 2C:35-10 largely decriminalized the
possession of unregulated marijuana occurring on or
after its effective date of February 22, 2021. N.J.S.A.
2C:35-10(a)(4)(b).
CREAMMA further added a new section to the
Criminal Code stating that neither "the odor of cannabis
or burnt cannabis, nor the "possession of marijuana or
hashish without evidence of quantity in excess of any
amount that would exceed the amount . . . which may
be lawfully possessed," "shall, individually or
collectively, constitute reasonable articulable suspicion
of a crime" except on school property or at a
correctional facility. N.J.S.A. 2C:35-10c.
[State v. Cohen, 254 N.J. 308, 328 (2023).]
In his motion to suppress the marijuana and the handgun Cervantes fou nd
on February 3, 2021, defendant argued that N.J.S.A. 2C:35-10c should be
applied retroactively to him. If that occurred, defendant asserted that Cervantes
would not have had the requisite reasonable articulable suspicion that a crime
A-3691-21
5
had occurred to justify the automobile stop and the subsequent searches of his
person and the car.
In a written opinion, the trial court rejected defendant's contention, finding
that N.J.S.A. 2C:35-10c did not become effective until February 22, 2021 and
could not be applied retroactively to the February 3, 2021 stop and searches
involved in this case. Therefore, the court upheld the constitutionality of
Cervantes's seizure of the marijuana and the handgun.
On appeal, defendant again argues that CREAMMA and, more
specifically, N.J.S.A. 2C:35-10c should be retroactively applied to him. We
disagree.
Since the time of the trial court's decision, we have squarely held that
CREAMMA's requirement that the "odor of cannabis or burnt cannabis" cannot
constitute "reasonable articulable suspicion of a crime" must be applied
prospectively. State v. Cambrelen, 473 N.J. Super. 70, 76 n.6 (App. Div. 2022).
Even more importantly, our Supreme Court confirmed earlier this year that
N.J.S.A. 2C:35-10c "has no bearing" on searches that "predated the passage of
CREAMMA[.]" Cohen, 254 N.J. at 328. Because CREAMMA does not apply
retroactively to the events of February 3, 2021, the trial court properly concluded
A-3691-21
6
that Cervantes had a reasonable articulable suspicion of a crime that justifie d
the motor vehicle stop and his subsequent searches of defendant and the car.
Defendant raises an additional argument concerning the effect of the
State's adoption of a constitutional amendment, N.J. Const. art. IV, § 7, ¶ 13,
that legalized regulated marijuana (cannabis) for those twenty-one years old or
older. This amendment was adopted by New Jersey voters on November 3,
2020. In pertinent part, the amendment stated:
The growth, cultivation, processing, manufacturing,
preparing, packaging, transferring, and retail
purchasing and consumption of cannabis, or products
created from or which include cannabis, by persons
[twenty-one] years of age or older, and not by persons
under [twenty-one] years of age, shall be lawful and
subject to regulation by the Cannabis Regulatory
Commission[.]
....
"Cannabis" means all parts of the plant Genus Cannabis
L., whether growing or not, the seeds thereof, and every
compound, manufacture, salt, derivative, mixture, or
preparation of the plant or its seeds. "Cannabis" does
not include: cannabis dispensed and consumed for
medical purposes pursuant to any law enacted by the
Legislature; hemp or hemp products subject to
regulation under the "New Jersey Hemp Farming Act,"
P.L.2019, c.238 (C.4:28-6 et al.), or any successor
enactment thereto; or unregulated cannabis, referred to
as marijuana, and products created from or which
include marijuana.
A-3691-21
7
[N.J. Const. art. IV, § 7, ¶ 13.]
As the New Jersey Attorney General explained in a November 4, 2020
statement concerning the enactment, "[t]he [a]mendment, which makes clear
that it does not legalize unregulated marijuana, takes effect on January 1, 2021,
and requires the Legislature to enact a law establishing a regulatory scheme for
legal cannabis." Press Release, Office of the Attorney General, Statement of
Attorney General Gurbir S. Grewal on Constitutional Amendment Legalizing
Adult-Use Cannabis, (Nov. 4, 2020).2 The required "regulatory scheme for legal
cannabis" was not in place on February 3, 2021 when the search and seizure in
this case occurred.
Nevertheless, defendant asserts there was "undeniable confusion" about
whether individuals could possess marijuana at the time of the February 3
search. Defendant argues that the amendment and the Attorney General's
statement were vague and may have led individuals to believe they could legally
possess marijuana. If that was the case, defendant contends that "suspicion of
marijuana" possession based upon a smell emanating from a vehicle should not
2
https://www.njoag.gov/statement-of-attorney-general-gurbir-s-grewal-on-
constitutional-amendment-legalizing-adult-use-cannabis/.
A-3691-21
8
have been considered "a valid basis for the search of the car or [defendant's]
person."
This argument fails for a host of reasons. First, defendant was only twenty
years old when he was arrested. The new amendment legalizing the possession
of cannabis only applied to individuals who are twenty-one years old or older.
Thus, N.J. Const. art. IV, § 7, ¶ 13 clearly did not apply to defendant.
Second, defendant possessed unregulated marijuana. Because there was
no "regulatory scheme for legal cannabis" in place on February 3, 2021, the
amendment could not apply to defendant or anyone else on that date.
Third, defendant did not testify and he presented no evidence at the
suppression hearing that he was confused in any way about whether he could
legally possess the marijuana Cervantes found on that date. Even if he was, "a
defendant's ignorance of the law making his or her possession of something
illegal is not, in and of itself, a basis to immunize a criminal defendant." State
v. Borjas, 436 N.J. Super. 375, 394 (App. Div. 2014).
Finally, there is nothing vague about the language used in N.J. Const. art.
IV, § 7, ¶ 13. The amendment plainly states that it applies only to "persons
[twenty-one] years of age or older, and not [to] persons under [twenty-one] years
of age[.]" Ibid. It also makes clear that only regulated cannabis has been
A-3691-21
9
legalized, not the type of marijuana defendant possessed on February 3, 2021.
Ibid.
These points were also made clear in the ballot question and interpretative
materials presented to the public concerning N.J. Const. art. IV, § 7, ¶ 1. See
S.C.R. 183 (2019).3 The ballot question asked:
Do you approve amending the Constitution to legalize
a controlled form of marijuana called "cannabis"?
Only adults at least [twenty-one] years of age could use
cannabis. The State commission created to oversee the
State’s medical cannabis program would also oversee
the new, personal use cannabis market.
Cannabis products would be subject to the State sales
tax. If authorized by the Legislature, a municipality
may pass a local ordinance to charge a local tax on
cannabis products.
[Ibid.]
The accompanying Interpretative Statement explained:
This amendment would legalize a controlled form of
marijuana called "cannabis." Only persons at least
[twenty-one] years of age could use cannabis products
legally.
The Cannabis Regulatory Commission would oversee
the new adult cannabis market. This commission was
created in 2019 to oversee the State’s medical cannabis
3
https://pub.njleg.state.nj.us/Bills/2018/SCR/183_I1.PDF
A-3691-21
10
program. The scope of the commission’s new authority
would be detailed in laws enacted by the Legislature.
All retail sales of cannabis products in the new adult
cannabis market would be subject to the State’s sales
tax. If authorized by the Legislature, a municipality
may pass a local ordinance to charge a local tax on
cannabis products.
[Ibid.]
Contrary to defendant's unsupported assertions, the amendment is not
unconstitutionally vague. It states in easily understandable terms that it only
applies to individuals who are twenty-one years of age or older who possess
regulated cannabis. It also specifically advised the public that additional
legislation was needed to implement the amendment's terms. Defendant was
only twenty years old on February 3, 2021 and he possessed marijuana rather
than cannabis. Under these circumstances, defendant clearly had fair warning
that his conduct on that date was unlawful. See State v. Badr, 415 N.J. Super.
455, 470-71 (App. Div. 2010) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972) (stating that "[t]he vagueness doctrine is premised on the notion
that the law must 'give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.'" )).
Affirmed.
A-3691-21
11