New York Governor Wants To Let Police Use Marijuana Odor As ‘Reasonable Cause’ That A Driver Is Impaired
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A provision in a New York budget proposal from Gov. Kathy Hochul (D) would allow police who claim to smell marijuana to force a driver to take a drug test—a plan that’s drawing pushback not just from reform advocates but also from the state’s Assembly majority leader and the governor-appointed head of the Office of Cannabis Management (OCM).
“We need to figure out in the forthcoming budget how to get that proposal out,” Felicia A.B. Reid, OCM’s acting executive director, told Spectrum News 1, “because it’s not going to work for New York and it’s not going to work for cannabis.”
Reid, whom Hochul appointed to head OCM last June, said the governor’s effort to amend the state’s Marihuana Regulation and Tax Act (MRTA), which currently prohibits the use of marijuana odor as probable cause, “undermines the basic tenets of the MRTA and decriminalization.”
Advocates are also raising the alarm, warning that the policy would disproportionately put Black and Latino drivers at risk.
“Removing the ban on searches based on the real or feigned smell of cannabis will turn back the clock and open the door on intrusive and racially discriminatory enforcement,” wrote Karen O’Keefe, Marijuana Policy Project’s director of state policies, in an email to supporters.
She noted that while New York decriminalized cannabis in 1977, “New York City police largely ignored the law and made the city the marijuana arrest capital of the world for years—with Black and Latino people disproportionately targeted.”
Beyond giving officers the ability to selectively target drivers by claiming they smell marijuana, O’Keefe also noted that the change could cause problems for people who work in the legal marijuana industry, writing that “people who work in cannabis cultivation and processing often smell like cannabis when they get off work.”
The proposed change is part of Hochul’s budget legislation for transportation, economic development and environmental conservation. It adds “the odor of cannabis, burnt cannabis or other drug” to a list of nonexclusive circumstances that constitute “reasonable cause” that a driver has broken the law.
Such cause would allow an officer to arrest an individual, subject them to drug testing and potentially search the vehicle itself.
Existing examples of reasonable cause in the law include “visible indication” of alcohol or drug consumption as well as open containers of alcohol or other drugs “in or around the vehicle driven by the operator.”
Hochul’s plan has rankled some legislative leaders, including Assembly Majority Leader Crystal Peoples-Stokes (D), who authored the state bill legalizing marijuana.
Peoples-Stokes has said she’s against the change but did not comment further, Spectrum News 1 reported, noting the lawmaker’s comments at a recent conference of the Black, Puerto Rican, Hispanic and Asian Legislative Conference.
“This fight is not over,” Peoples-Stokes reportedly said. “It’s important now more than ever, it’s important to be organized to make sure this legislation isn’t squashed.”
Speaking in Albany about the law, she said it “needs to be reviewed, not to make changes, but to inform people.”
A spokesperson for Hochul said the administration “is actively negotiating” with lawmakers about her efforts to prevent drugged driving, but Spectrum reports that multiple lawmakers and industry stakeholders said they were left in the dark.
The use of cannabis odor to justify an officer’s suspicion that a driver has committed a crime has recently been the subject of major lawsuits in Illinois and Minnesota.
In December, the Illinois Supreme Court ruled that the smell of raw cannabis alone is sufficient reason for police to search a vehicle. The court opined that if law enforcement can smell marijuana it’s “almost certain” that it’s not sealed in an odor-proof container as required by state law.
A separate Illinois high court opinion just months earlier, however, said that the smell of burnt cannabis is not sufficient cause to conduct a search.
In Minnesota, meanwhile, a state Supreme Court decision in 2023 said that the smell of marijuana alone does not establish probable cause.
That opinion pointed out that the court had previously ruled that the smell of alcohol alone wasn’t sufficient cause to justify a search.
Other states have sought to prohibit marijuana odor by law from being used to justify vehicle searches.
A year ago, for example, a Missouri lawmaker pre-filed a bill that would have prevented police from using the smell of marijuana as the sole basis of a warrantless vehicle or property search.
Several other legal cannabis states already impose the restriction on police, including Maryland, where the governor allowed legislation to become law in 2023 that blocks warrantless vehicle searches based on marijuana odor alone. New Jersey’s Supreme Court has already recently upheld similar rules in a case involving an improper search.
Also last year, a federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigator reportedly ordered a gun dealer in Florida to stop the sale of a pistol because the investigator claimed the would-be buyer smelled of marijuana.
In Virginia, meanwhile, lawmakers this legislative session rejected a proposal that would have allowed law enforcement to use the odor of marijuana as probable cause for a search.
“In 2021, a Virginia law took effect prohibiting police from stopping, searching, or seizing any person, place, or thing based solely on the odor of cannabis,” JM Pedini, development director for the advocacy group NORML and executive director for Virginia NORML, explained at the time. “Every year since, Virginia Republicans have attempted to roll back this progress.”
“Repealing this law would bring back the rampant claims of ‘I smell marijuana’ used as justification for traffic stops and searches,” Pedini continued. “Cannabis is legal in Virginia for medical use and for adults 21 and older. Those lawfully possessing cannabis ought not be subject to stops and searches based solely on its odor, and wisely the committee once again rejected this effort.”
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