The Marijuana Regulation and Taxation Act, enacted two months ago, has upended that scenario completely. Cannabis is now legal for adults within certain limits and decriminalized for minors, and the presence or smell of marijuana no longer gives cops probable cause to search people or vehicles in most circumstances.
"I would consider it like a nail in the coffin on marijuana arrests," said Aleece Burgio, an attorney specializing in cannabis law and co-chair of the New York State Bar Association's Committee on Cannabis Law.
Progressive prosecutors, attorneys and justice reform advocates have long challenged marijuana laws as being enmeshed in racism. With arrest data going back at least two decades showing enforcement slanted sharply toward Black and Latino people, public defenders see the MRTA as a crucial step forward in reversing the uneven effects of marijuana prohibition.
In 2019, New York decriminalized low-level marijuana possession. Instead of arresting people caught smoking in public, police started issuing summonses. Possession of up to two ounces of marijuana wasn't punished with jail time anymore, sparing offenders criminal records.
Yet despite decriminalization, coupled with an official, gradual shift away from the "broken windows" approach to law enforcement — based on the theory that clamping down on quality-of-life offenses can prevent more serious crimes — marijuana stayed in the picture, with officers continuing to use the odor as an excuse to search people.
"I saw it first-hand in my experience as a public defender," said Jackie Gosdigian, a senior policy counsel at Brooklyn Defender Services. "It could be something as small as a 'roach' that was found on the ground, and then the police start using that as an excuse to literally bring in six or seven young people to the precinct."
Gosdigian said the 2019 legislation was a half-baked reform, an attempt to reduce the number of people incarcerated for marijuana possession without a clear goal to fix the causes of racial disparities in enforcement.
"It just left that window still open for police to use marijuana as an excuse, as a pretext, to stop and harass communities of color," she said.
The MRTA helped turn that tide. People aged 21 and over are now allowed to walk around with up to three ounces of marijuana. They can keep up to five pounds of marijuana at home and grow up to six plants.
But a provision in the law forbidding police from using the presence or odor of cannabis as a gateway to investigating further crimes will likely have the most consequential effect, Gosdigian said.
Officers will have to find other ways to establish probable cause for searching people and vehicles. Police encounters that occurred before the law was passed will also fall under scrutiny. And ultimately, a large chunk of the reform will play out in court in the form of litigation.
"Attorneys can use this clear legislative language to litigate any arrests that are based upon a search that had something to do with marijuana at the beginning of that search," Gosdigian said. "We're already doing that."
Cannabis Smell No Longer a Pretext for Searches
Article 222, which replaced Article 221 under the MRTA, says the odor of cannabis alone doesn't give police probable cause that a crime was committed and doesn't justify conducting a search.
"Marijuana smells so distinctive," Burgio said, "Police would use that as an opportunity to open the door when they were looking through vehicles. If you were on the street and they smelled marijuana, they stopped and frisked you to see if you had anything on you."
NYPD data shows arrests for marijuana offenses have declined sharply in New York City since the department began collecting data in 2018. The number of summonses issued by police for pot offenses has remained stable, except for a dip during the peak of the coronavirus pandemic.
Stop-and-frisk tactics, which saw a peak in use during the Bloomberg administration, were phased out after 2013, when U.S. District Judge Shira A. Scheindlin of the Southern District of New York ruled the practice unconstitutional. The use of marijuana smell in searches, however, provided the loophole that kept the practice alive.
"The odor of marijuana sort of became the new basis for stop-and-frisk, or stop-and-harass if you will, in New York," Gosdigian said. "It's probably the number-one basis that we were seeing for police searching cars, searching individuals on the street."
The odor provision in the MRTA is the real game-changer, she said.
Within hours from when Gov. Andrew Cuomo signed the MRTA into law on March 31, the legal bureau of the New York Police Department sent a memo to all commands informing them of "sweeping changes."
"EFFECTIVE IMMEDIATELY, THE SMELL OF MARIHUANA ALONE NO LONGER ESTABLISHES PROBABLE CAUSE OF A CRIME TO SEARCH A VEHICLE. THIS CHANGE APPLIES TO BOTH BURNT AND UNBURNT MARIHUANA," the memo said.
The memo clarified that officers can use cannabis odor as a basis to search the passenger compartment of a vehicle only if they believe the driver might be impaired by the effects of marijuana.
To search a trunk, however, officers need to establish separate probable cause that the trunk contains evidence of another crime, such as a gun or other contraband. Smoking while driving is a punishable traffic law violation, just as drinking alcohol is, but it doesn't create the basis for a search.
Two Defining Judicial Decisions
In a decision last month in People v. Ponder, a panel of judges of the state Appellate Division, First Department, cited the MRTA in ruling that the odor of marijuana and a small amount of pot in a defendant's car didn't give police reasonable cause to search his trunk, where they later found a loaded gun.
An overwhelming majority of summonses for marijuana offenses continue to be for Black and Latinx New Yorkers. Data on arrests reflect a similar pattern, despite a sharp overall decrease.
In the opinion, signed by Justice Barbara R. Kapnick and concurred by Justices Angela M. Mazzarelli, Peter H. Moulton and Martin Shulman, the panel agreed with Ponder, ruling that to search a car without a warrant, police need to establish a "factual nexus between the criminal activity suspected and the area searched," and that neither the smell nor the small quantity of pot found in Ponder's car had met that requirement.
The ruling was a stark departure from previous rulings by the same court. Two 2011 decisions — People v. Valette and People v. Mena — established that the smell of marijuana was sufficient to give police probable cause to search the entire car, including the trunk.
In those cases, judges concluded the searches met the standards of what is referred to as the "automobile exception" to the constitutional protection from warrantless searches spelled out in the Fourth Amendment.
The exception was first established in 1925 in Carroll v. United States, in which the U.S. Supreme Court ruled that warrantless searches are permissible if police believe a driver might be hiding contraband in the car.
The First Appellate panel acknowledged the precedent but decided to break it.
"We decline to follow them," the judges said. "We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not."
Another relevant judicial decision came in April at an administrative hearing held by the New York City Office of Administrative Trials and Hearings in the case of a man whose car had been confiscated by police after being arrested and charged with gun felonies, a marijuana violation and other charges. The man, Xavier Williams, was legally stopped in February for driving a car with tinted windows, in violation of traffic law.
A police officer later testified he had smelled marijuana coming from the car and saw a small quantity in the center console, giving him probable cause to search the driver and the vehicle. He ultimately found a loaded gun, ammunition, marijuana and cannabis oil.
Administrative Law Judge Joan R. Salzman questioned the legality of the search in light of the MRTA and ultimately ruled the city had no right to keep the car impounded while the criminal proceedings against Williams played out. The judge acknowledged the search was legal at the time it occurred and did not violate the constitutional protections in the Fourth Amendment.
"The question remaining is whether the new cannabis Law changes the outcome of this proceeding. I find that it does," the judge said. The judge quoted the odor provision in the MRTA as the basis for questioning the legality of the search.
"It is significant that the Legislature took the trouble to provide this restriction on policing by adding this provision affecting suppression motions in 'criminal proceedings' and that it contemplated the problems raised by police searches based solely on odor and small amounts of marijuana," Judge Salzman said in the order.
The two judicial decisions are based on the presumption, spelled out by the law's drafters, that the odor provision in the MRTA can be used to scrutinize searches conducted before the law was passed.
Speaking at a webinar on the MRTA last week, Barry Kamins, a retired state Supreme Court justice and former administrative judge of the Criminal Court of New York City, questioned the departure from case law in the two decisions and said the notion of the MRTA applying retroactively to question probable cause in past police encounters could violate the principle of separation of powers in the state constitution.
"The Legislature has the authority to determine what conduct should be labeled criminal and what conduct should not be legal criminal," Kamins said. "But can the Legislature impose restrictions on the judiciary's interpretation of constitutional matters, such as probable cause?"
Racial Disparity in Enforcement
While national data on marijuana consumption show white people use cannabis at pretty much the same rate as non-whites, the enforcement of the laws has been profoundly uneven.
Arrest data compiled by the American Civil Liberties Union in 2019 showed a startling disparity in marijuana enforcement in New York City. In the Bronx, for instance, Black people were found to be 17.5 times more likely to be arrested than white people.
Precinct data shows higher numbers of arrests and summonses for marijuana in poorer neighborhoods, which tend to be majority-Black and Latinx.
What matters, ultimately, is the neighborhood you live in and who the police decide to go after. Poorer areas, which tend to be majority-Black and Latino, have higher crime rates and higher police presence. More police officers patrolling public areas — parks, playgrounds, stoops — means more people could be found committing marijuana offenses.
"It's very clear that there are neighborhoods in Brooklyn where there is a much larger police presence than in other neighborhoods," Gosdigian said. "Police were using that odor of marijuana in these communities and saying this odor was a sufficient basis for them to investigate a crime."
Michael Sisitzky, senior policy counsel at the New York Liberties Union, said laws can only do so much in tackling racial disparities in policing. Arrests for low-level marijuana offenses have fallen sharply in recent years. Decriminalization bills passed in 2019 furthered that trend. But racial disparities in enforcement persisted, and in some cases, increased, police data shows.
NYPD statistics show more than 2,600 marijuana arrests recorded during the second quarter of 2018, when the department began collecting data. In the fourth quarter of that year, there were just over 500. The number of arrests dropped further in 2019, with only 130 arrests recorded in the fourth quarter and throughout 2020.
Yet racial disparities have continued to glare despite that. During the second quarter of 2018, about 88.5% of people arrested for marijuana offenses were Black and Latino, and 7% were white. In the first quarter of 2021, the most recent data available, Black and Latino people made up 90.8% of marijuana arrests, whereas whites made up only 3.7% of them.
The number of summonses for marijuana possession has remained stable during the same period, yet the racial gap has widened significantly. During the second quarter of 2018, 81.1% of the summonses were given to Black and Latino people, while 12.3% were given to whites. In the first quarter of this year, Black and Latino people made up 93.9% of the summonses, compared to 2.8% for whites.
"Disparities never changed. They never budged, even after some of the decriminalization efforts," Sisitzky said.
Statewide data collected by the New York State Division of Criminal Justice Services show a similar pattern. Between 2010 and 2018, Black and Latino people accounted for 82% of those arrested for marijuana, despite making up 32% of the state population. In comparison, whites are 58% of the state population but made up only 15% of arrests.
Additionally, while one in every 85 white people were arrested for marijuana, the rate was one in every six for Black people and one in every 12 for Latinos. And in Manhattan, one in every three Black people were arrested for marijuana misdemeanors and felonies during that period.
Even with a law legalizing adult use, expunging convictions and possibly allowing people to litigate pending and closed cases, the role of the police is crucial yet unpredictable in realizing the MRTA's bold ambitions.
"It's going to depend on implementation," Sisitzky said. "It's going to depend on how much police departments actually commit to ending this part of the racist war on drugs."
--Editing by Philip Shea.