Recently, an Appellate Division Panel addressed a juvenile's argument that his prosecution for possession of marijuana in a motor vehicle occupied by four other juveniles was defective because it violated the Due Process’s Clause against selective enforcement. 

The case began when a vehicle was stopped by a local law enforcement agent for disregarding a stop sign.  In the initial  encounter, the police officer observed an odor of burnt marijuana in the vehicle’s compartment and observed that the driver and two passengers appeared nervous with blood shot and watery eyes.  The resulting search produced a burnt marijuana cigarette and a package of marijuana.  The police officer only charged the defendant, the driver and one other passenger.  The remaining passengers where not charged. 

In rejecting the juvenile’s argument that the government was selectively prosecuting him, the court observed that prosecutors have very broad discretion in the charging function and that some selectivity in the prosecution of criminal cases is not constitutionally prohibited unless the decision is based on race, religion or some other arbitrary classifications.  The court also observed that in order to prove a claim of selective enforcement “clear evidence” had to be produced to show that the prosecutor was selective in the matter in which the case was prosecuted.