Smell of Reform

Law clears up some questions around probable cause for searches, leaves others

(Julie Ann Grimm)

Imagine, at some point in the spring of 2022, you are driving in New Mexico and your cellphone drops onto the floor of the car. As you bend down to pick it up, you accidentally swerve briefly across the white line. You correct easily, but suddenly there are red and blue lights flashing behind you.

Coincidentally, you also have a pinch of cannabis in a small bag in the center console. You feel a moment of panic, until you remember—you're in the New Mexico of the future, and cannabis, in certain amounts, is now legal to possess. Those flashing lights don't mean what they used to—an officer seeing a certain amount of cannabis in your car no longer serves as probable cause for a search and it isn't a crime.

READ MORE >> Here's Cannabis! New Mexico breaks through prohibition—now the work starts

This will all be thanks to the Cannabis Regulation Act, which tackles some thorny issues around our Fourth Amendment rights for lawful searches and seizures, but leaves some (like the presence of paraphernalia) to be tackled by future Legislatures.

Additionally, the Department of Public Safety does not yet have a set new direction to explain to officers how to handle enforcement once cannabis is legal—and it's still not clear how law enforcement will be able to tell if someone is impaired from marijuana.

Unlike with alcohol, there is no scientific test to determine whether someone is high at the time of driving. (That said, Megan Dorsey, the technical expert on the legislation, tells SFR the law permits research designed to improve cannabis impairment detection. "As the science develops, so too will the law," she says.)

According to the law, 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. Sixteen grams of extract, 800 milligrams of edibles or multiple containers of cannabis are all legal to have on your person or in your vehicle.

"We are still evaluating the new legislation and its impact on DPS operations," Ray Wilson, a spokesman for the Department of Public Safety, writes SFR in an email. "In the very near future we will be providing our officers with direction on how to proceed in reference to cannabis enforcement."

READ MORE >> Local Impact: How Santa Fe allocates new revenue, makes land-use decisions will influence cannabis industry 

Jennifer  Burrill, vice president of the New Mexico Criminal Defense Lawyers Association and a public defender in Santa Fe, tells SFR that once the law takes effect, previous issues defense lawyers have had around probable cause, such as an officer pulling someone over for a broken taillight and then smelling marijuana and getting a search warrant for the entire car, should be moot.

"You're going to have to establish probable cause for search warrants that they used to be able to get just off of a smell of marijuana that often led to other evidence of different types of crimes," Burrill says.

Burrill is still concerned about people getting in trouble for having paraphernalia on them, saying that could be "troublesome."

But Dorsey says that paraphernalia possession was decriminalized in recent years. It is only a penalty assessment citation unless there is evidence of something other than paraphernalia possession. In that case, a search would likely not be justified.

Some things show no signs of changing, including several certification programs in New Mexico designed for officers, such as the Drug Recognition Expert program and the Advanced Roadside Impaired Driving Enforcement (ARIDE), both of which teach law enforcement how to recognize signs of impairment.

A DRE is trained specifically to identify individuals under the impairment of drugs, even where it is highly likely the impairment is not caused by alcohol and any breath test would turn up no result. A DRE is supposed to be an "expert" in determining whether someone is too drunk or high to be driving legally.

It's a relatively niche training. Of the thousands of law enforcement officers in New Mexico, only 62 are DREs, according to data provided by DPS. Only two of the 84 Santa Fe Police Department officers are DREs.

There is no extra funding on the horizon or specific plan to train more officers, according to New Mexico Drug Expert program spokesman Charles Files.

"Although the bill is new, driving under the influence of marijuana is not," writes SFPD Capt. Matthew Champlin. "Officers will continue to enforce the law to ensure our roads are safe."

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