COURT News:
SANTA FE — The smell of marijuana remained a valid basis for police to search a vehicle without a warrant during the time when New Mexico had decriminalized the possession of small amounts of marijuana, the New Mexico Supreme Court ruled Thursday.
Under decriminalization enacted in 2019, New Mexico eliminated jail time for possessing one-half ounce of marijuana or less and instead provided for a fine in a similar fashion as traffic violations. Possession of any amount of marijuana remained illegal, however. Two years later, the state legalized the possession and recreational use of marijuana by adults who are 21 years and older.
The Court issued its unanimous opinion in response to a question of law from the Court of Appeals on whether a decades-old legal precedent – that the odor of marijuana alone could provide the probable cause for a warrantless search – continued to be valid during the decriminalization time period. The Court established the precedent with its decision in a 1982 case, State v. Capps.
In today’s opinion by Justice C. Shannon Bacon, the Court wrote that “we discern no basis on which to conclude that the Capps holding was rendered invalid as a result of the 2019 legislative transition from a marijuana criminalization framework to a marijuana decriminalization framework.”
The Court explained, “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.”
The state and federal constitutions protect against unreasonable searches and seizures by the government, and warrants are generally required for a search by law enforcement. However, in certain instances law enforcement may conduct a search without a warrant if they have probable cause to believe a crime has occurred or evidence of a crime exists.
The Court’s decision came in a case in which Silver City police found methamphetamine, marijuana and drug paraphernalia in Sandra Perry’s truck during a search after a stop for traffic violations in November 2020. Police conducted the search after smelling marijuana coming from inside her vehicle. A jury found Perry guilty of possession of a controlled substance, possession of drug paraphernalia and several traffic violations. Perry filed an appeal in the Court of Appeals, arguing that the trial judge improperly denied a defense motion to block the prosecution’s use of evidence seized during the warrantless search of her truck.
The justices did not decide Perry’s case in answering the question of law posed by the Court of Appeals. The Court returned the matter to the Court of Appeals to resolve based on its legal guidance and the facts of the case.