Can A New York Police Officer Search Your Car If He Or She Smells Marijuana?

New York State legalized recreational marijuana use for anyone who is 21 years of age or older. This new law was signed into effect by New York Governor Andrew Cuomo on March 31, 2021. It allows cannabis use in areas where tobacco is allowed in the state. However, it may not be used in a motor vehicle (among other places). That’s right. It still remains illegal for marijuana to be used in a car inside a car, van, or truck.

A recent NYPD memorandum sets forth the new procedures for legalized marijuana for adults operating motor vehicles. “Effective immediately, the smell of marijuana alone no longer establishes probable cause of a crime to search a vehicle.”

Were you arrested for a DWAI or drugged driving? Contact Weiss and Associates, PC for a FREE case evaluation at 212-683-7373 or email us at today!

What is probable cause?

Probable cause is when there is an objective circumstance leading a police officer to believe it is reasonable to search a vehicle. Probable cause can be something like (in this case) smelling cannabis or eyeballing cannabis paraphernalia in a car when speaking to the driver. It is more than just suspicion. Essentially, it is a way for police officers to investigate a potential offense if they have a reasonable observation to do so.

Can probable cause determine a marijuana-related arrest in a motor vehicle in New York State?

Per the above memorandum, police officers now need more than their keen sense of smell of cannabis to conduct a vehicle search.  For instance, they may search the vehicle if the driver also appears to be under the influence of marijuana AND if there is probable cause to believe that he or she had consumed it. Observation of the driver smoking or vaping marijuana while operating (or even just a passenger) a motor vehicle is sufficient to create probable cause.

Even if probable cause exists to search your car, the trunk cannot be investigated unless there is probable cause that the trunk might also contain evidence (or if you give voluntary consent). If you are on parole, a police officer cannot stop you or put you in custody if you are using marijuana legally, unless prohibiting weed is under the terms of your parole. Then, they must notify your parole officers.

The question remains if this will make the community safer or not. We took a look at the amount of marijuana-related arrests in the fourth quarter of 2020. According to the New York government, throughout the five boroughs in New York (Bronx, Brooklyn, Manhattan, Queens, Staten Island), there has been a grand total of 149 marijuana-related arrests. In Police Served Areas, there is a grand total of 80 marijuana-related arrests. Now, we do not know if any of these arrests are correlated to probable cause and motor vehicles, but we do know that it is still illegal to drive a motor vehicle under the influence in New York despite the legalization of recreational use.

For details about the laws on driving while under the influence of drugs, read our article titled “Driving Under The Influence Of Marijuana In New York”.

What does the NYPD consider for probable cause in a
cannabis-related arrest in a motor vehicle?

Marijuana odor alone is not considered probable cause anymore, however, the motorist’s condition, appearance, balance, coordination, and manner of speech can still give a police officer probable cause to search your vehicle. Another way to determine probable cause is the manner in which the suspect operates the vehicle.  A classic indication is someone driving too slow.

How can a New York Traffic Ticket lawyer help me with a drugged driving case?

Weiss & Associates, PC has seen many cases related to cannabis use in a motor vehicle. We have a skilled team of lawyers that can help give free advice on what your options are if you are charged with driving while your ability is impaired, also known as a DWAI or drugged driving. We do our best to steer you in the right direction of how to combat the arrest or give you guidance with the court of law. Call Weiss & Associates, PC at 212-683-7373 or email us at today! We are happy to assist you.

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