In New York State, the smell of marijuana alone may no longer be considered sufficient probable cause to search a vehicle. In 2021, possession of marijuana (up to three ounces) has been decriminalized and is no longer considered a criminal offense in the state of New York. This decriminalization of marijuana possession in 2021 has limited the use of marijuana odor (burnt or unburnt) as probable cause to conduct a vehicle search. Recently, the NYPD has issued a memorandum outlining new procedures for the handling of legal marijuana use by adults in motor vehicles. According to the memorandum, the odor of marijuana alone is no longer considered sufficient probable cause to conduct a search of a vehicle. This new policy is in effect.
As a a result of the foregoing, in order to conduct a search, officers must now have additional evidence or probable cause. For example, if the driver appears to be under the influence of marijuana (DUI), and there is probable cause to believe that they have consumed it, a search may be conducted. Additionally, observing the driver or passengers smoking or vaping marijuana while operating a motor vehicle can also provide sufficient probable cause for a vehcile search. The presence of other suspicious factors or indicators of criminal activity, such as the presence of drug paraphernalia, a lit up joint, blunt, vape or other observed illegal activity, may give the police officer probable cause to conduct a search. Keep in mind that Driving while impaired by marijuana or driving under the influence is a crime, and the smell of burnt marijuana can be considered probable cause of driving while ability impaired or driving under influence of drugs.
It’s always recommended to consult with a lawyer or legal professional if you or someone you care about has been charged with a crime.
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