New Mexico drivers stopped by police during the state’s brief marijuana decriminalization period could still have their vehicles searched without a warrant based on the smell of cannabis alone, the state Supreme Court ruled Thursday in a unanimous decision that clarifies police powers during a unique period in the state’s drug policy history.
The ruling affects how courts will handle cases from the two-year window between July 2019 and June 2021, when New Mexico had decriminalized small amounts of marijuana but not yet legalized the drug entirely. During that time, possession of up to half an ounce carried only a $50 fine, similar to a traffic ticket, but remained technically illegal.
“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,” Justice C. Shannon Bacon wrote in the court’s opinion.
The decision emerged from a November 2020 traffic stop in Silver City, where police found methamphetamine, marijuana and drug paraphernalia in Sandra Perry’s truck after officers smelled marijuana coming from inside the vehicle. Perry was convicted on multiple charges but appealed, arguing that the warrantless search violated her constitutional rights during the decriminalization period.
The ruling upholds a decades-old legal precedent established in the 1982 case State v. Capps, which allowed marijuana odor alone to provide probable cause for vehicle searches. The Supreme Court rejected arguments that decriminalization had invalidated this standard.
Jennifer Burrill, vice president of the New Mexico Criminal Defense Lawyers Association and a public defender in Santa Fe, previously told the Santa Fe Reporter that decriminalization should have eliminated probable cause issues where “an officer pulling someone over for a broken taillight and then smelling marijuana and getting a search warrant for the entire car.”
The ruling comes as New Mexico continues to refine its approach to cannabis enforcement. Earlier this year, lawmakers approved House Bill 10, creating a new team of armed law enforcement officers specifically tasked with investigating violations of the state’s cannabis regulations. The new officers will work under the Cannabis Control Division and focus on unlicensed operations and regulatory violations.
New Mexico’s path to legalization began in April 2019 when Gov. Michelle Lujan Grisham signed Senate Bill 323, which took effect July 1, 2019. The law made first-time possession of up to half an ounce a petty misdemeanor punishable by a $50 fine, while also decriminalizing possession of drug paraphernalia.
Two years later, the governor signed the Cannabis Regulation Act on April 12, 2021, fully legalizing recreational marijuana for adults 21 and older. The law took effect June 29, 2021, with retail sales beginning April 1, 2022.
State data shows marijuana arrests declined dramatically during this transition, dropping from 461 arrests in 2020 to 195 in 2021, before falling further as legalization took hold.
The Supreme Court did not rule directly on Perry’s case but instead answered a legal question posed by the Court of Appeals about whether the marijuana odor standard remained valid during decriminalization. The court returned Perry’s case to the appeals court to decide based on this guidance.
The decision provides clarity for defense attorneys, prosecutors and judges handling cases from the 2019-2021 period, when the legal status of marijuana searches remained uncertain. The justices emphasized that their ruling applied specifically to the decriminalization period, when “possession of any amount of marijuana remained illegal, however.”
Since full legalization in 2021, New Mexico law specifies that “the smell or visibility of cannabis products (or even the suspicion of having more than 2 ounces of cannabis) is not probable cause for an officer to stop, detain or search someone.”
The ruling resolves a legal gray area that had left some defendants and attorneys uncertain about the validity of searches conducted during the brief decriminalization period, providing definitive guidance for courts across all 33 New Mexico counties handling similar cases.
This report is supported by NM Political Report, a nonprofit newsroom working to increase New Mexicans’ engagement in politics and public policy.
Reported by: Kevin Hendricks
This report is original reporting by a New Mexico-based independent journalist with support NMreports.org and its readers and sponsors.