NM Supreme Court clarifies warrantless search legality during hazy cannabis era

SANTA FE — Before New Mexico legalized adult-use cannabis in 2021, the state had briefly decriminalized the possession of small amounts of marijuana.

That law, which was only in place for about two years before being usurped by legalization, played a key role in a state Supreme Court decision issued last week.

Specifically, the state’s highest court upheld a Court of Appeals ruling that warrantless vehicle searches prompted by the odor of cannabis were still allowable during the time of decriminalization.

“Stated as simply as we can, the decriminalization of possession of small amounts of marijuana in New Mexico did not alter the reality that the possession of marijuana in any amount continued to be unlawful during the decriminalization period — whether marijuana is viewed as merely contraband … or more broadly as seizable evidence,” Supreme Court Justice Shannon Bacon wrote in the court’s unanimous decision.

The underlying case that prompted the decision stemmed from a November 2020 traffic stop in Silver City. The defendant in the case, Sandra Perry, had her truck searched after police smelled marijuana coming from inside the vehicle.

The search turned up marijuana, methamphetamine and drug paraphernalia, but Perry appealed her subsequent conviction and argued the judge should not have allowed evidence from the warrantless search to be used during her trial.

Under the now-defunct decriminalization law, the possession of one-half ounce of cannabis or less was punishable by a fine in New Mexico, similar to a traffic ticket.

While possession of larger amounts of marijuana was still a criminal offense, Perry argued in her appeal that the search of her vehicle was illegal because police lacked probable cause that enough marijuana was in her truck to constitute a crime.

Warrantless searches prompted by the smell of marijuana were essentially shelved by the state’s 2021 legalization of cannabis, though it’s still illegal to drive a vehicle under the influence of cannabis or for individuals under age 21 to buy, use or possess the drug.

However, the Supreme Court’s decision did not address the current legal landscape when it comes to police officers who smell cannabis during traffic stops, as it instead focused narrowly on the laws in place when the underlying case occurred.

The court ruling also did not fully resolve the underlying appeal, as it instead remanded the case back to the Court of Appeals for a final decision.