Vehicle searches and cannabis odor in New York

Penal Law § 222.05 is titled "Personal use of cannabis" and opens with the words "Notwithstanding any other provision of law to the contrary". Subdivision 1 makes it lawful for a person twenty-one or older to possess, display, purchase, obtain or transport up to three ounces of cannabis and up to twenty-four grams of concentrated cannabis, to transfer those amounts to another adult without compensation, to use or consume cannabis unless otherwise prohibited by state law, and to possess the associated paraphernalia. Those figures are the reference points for everything that follows, because the protections in subdivisions 2 and 3 attach to conduct within them.

Subdivision 2 does two jobs. It removes the material from the forfeiture system: cannabis, concentrated cannabis and their paraphernalia involved in any way with conduct deemed lawful by the section are not contraband and not subject to seizure or forfeiture of assets under Penal Law article 480, under CPLR § 1311, or under other applicable law. It then adds the sentence that matters at the roadside, providing that no conduct deemed lawful by the section shall constitute the basis for approach, search, seizure, arrest or detention. New York's list starts at "approach", which is earlier in the encounter than most states legislate.

Subdivision 3 is the evidentiary rule. In any criminal proceeding, including a suppression proceeding under Criminal Procedure Law § 710.20, no finding or determination of reasonable cause to believe a crime has been committed may be based solely on six listed facts and circumstances, either individually or in combination with each other: the odor of cannabis; the odor of burnt cannabis; possession or suspected possession of cannabis or concentrated cannabis in the amounts authorized by article 222; possession of multiple containers of cannabis without evidence of concentrated cannabis in the authorized amounts; the presence of cash or currency in proximity to cannabis or concentrated cannabis; and planting, cultivating, harvesting, drying, processing or possessing cultivated cannabis in accordance with Penal Law § 222.15. The phrase "either individually or in combination with each other" forecloses the stacking argument, so an officer cannot add odor plus multiple containers plus visible cash and call the total reasonable cause.

The exception in subdivision 4 is drafted tightly and is easy to overstate. It suspends only paragraph (b), the odor of burnt cannabis, and only while a law enforcement officer is investigating whether a person is operating a motor vehicle, vessel or snowmobile while impaired by drugs or by the combined influence of drugs or of alcohol and any drug, in violation of Vehicle and Traffic Law § 1192(4) or (4-a), Navigation Law § 49-a(2)(e), or Parks, Recreation and Historic Preservation Law § 25.24(1)(d). Paragraphs (a), (c), (d), (e) and (f) remain fully in force even during an impairment investigation, so the plain odor of unburnt cannabis, lawful possession, multiple containers and nearby cash still cannot supply reasonable cause. And the exception carries its own limit written into the same subdivision: during such investigations, the odor of burnt cannabis shall not provide probable cause to search any area of a vehicle that is not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver's condition. In practical terms that keeps a closed trunk out of reach on burnt odor alone.

What § 222.05 does not do is regulate consent itself. New York has no statute setting out how an officer must ask for permission to search a car, no written-consent form requirement, and no statutory warning that consent may be refused. Those questions are governed by the state and federal constitutions as the courts have applied them, which is why the honest statutory answer for a New York driver is about what cannot justify a search rather than about how consent must be obtained. Nothing in article 222 obliges a driver to answer a request to search, and § 222.05(2) means that saying no while lawfully carrying up to three ounces cannot itself be turned into the ground for one.

The enforcement route runs through Criminal Procedure Law article 710. Section 710.20(1) lets a defendant aggrieved by unlawful acquisition of evidence move to suppress tangible property obtained by means of an unlawful search and seizure, and § 710.20(5) separately reaches a chemical test of blood administered in violation of Vehicle and Traffic Law § 1194(3). Section 710.40(1) requires the motion to be made after commencement of the criminal action and within the period set by § 255.20(1), which is forty-five days after arraignment and before trial begins, subject to extension by the court. Under § 710.40(3) the trial may not commence until the motion is determined, and § 710.40(4) allows the motion to be renewed before or during trial where the defendant shows additional pertinent facts that could not have been discovered with reasonable diligence earlier. Section 222.05 is directly usable in that motion because subdivision 3 names § 710.20 proceedings by number.

05(3) is exclusion, not a fine. 40(3). 20(4) extends suppression to other evidence obtained as a result of it. 05(1) thresholds is a different matter: exceeding three ounces of cannabis or twenty-four grams of concentrated cannabis is not conduct deemed lawful by the section, so neither the no-approach rule in subdivision 2 nor the reasonable-cause bar in subdivision 3 protects it. 05(4), but the same subdivision still denies probable cause to search any area of the vehicle not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver's condition.