NYPD -the smell of weed no longer enough to justify a car search By Michael Joseph on June 07, 2021

Cops can no longer use the smell of marijuana as a reason to search a vehicle now that New York has officially legalized weed, NYPD or for a pat down search.  The memo, which went out to all of the police department’s commands, lays out the new law of the land, and how it affects cops’ day-to-day interactions with the public. Now that marijuana is legal for recreational use in New York, our New York City and Westchester criminal defense lawyers know that polikce officers can no longer, use the pre-text of a smell of marijuana to stop people on the street and search them. For years, the smell of marijuana has been used as a justification to perform patdown searches in which the police are really looking for other drugs or guns. 

The memo states that, “Effective immediately, the smell of marijuana alone no longer establishes probable cause of a crime to search a vehicle. This change applies to both burnt and unburnt marijuana.”

Driving while impaired by marijuana is a crime, and the smell of burnt marijuana can be considered probable cause of impairment. But officers can only search the passenger compartment, not the trunk, unless they have cause to believe the trunk contains evidence of a crime, the guidelines state. Smoking marijuana while driving is still illegal under vehicle and traffic law.

The new law also affects how police officers can enforce “hand-to-hand” street sales of marijuana. Specifically, someone can’t be charged with sale of marijuana unless the officer also sees money exchanging hands, according to the guidance.

And parolees are allowed to use pot, unless the terms of their parole specifically prohibit it. So if you were arrested for a gun or drug charge and the underlying basis for the stop was that the officer smelled marijuana, you have new grounds to fight the stop and assert a lack of probable cause for the search, since possession of marijuana for recreational use in New York is no longer illegal. For decades our New York City and Westchester criminal defense lawyers, who fight drug cases, have fought probable cause claims, based upon the alleged smell of marijuana. Now with this weapon removed from the police arsenal of reasons to stop and search people, the ordinary citizen can enjoy more freedom. While new, often fictional reasons for stop and search will likely emerge, our New York City and White Plains criminal defense lawyers, will continue to fight search and seizure cases and continue to advocate for the protection of our client's constitutional civil liberties. 

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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

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