Criminal Justice Insider

Effective March 31, 2021, the use and consumption of recreational marijuana is legal in New York State. While it will take some time for New York to implement a regulatory and licensure scheme for legal distribution (visit our CannaBizDisputes Blog for the latest updates on regulatory and litigation issues related to cannabis), the impact of the policy on the criminal law is immediate.

The legalization bill allows individuals who are 21 or older to possess up to three ounces of marijuana in a public place, up to five pounds of marijuana in their home, and consume marijuana in any public place that cigarette smoking is permissible (except while driving).

With regard to the criminal law, smoking marijuana in public can no longer serve as the sole basis of interaction with law enforcement. Under the Supreme Court’s holding in Terry v. Ohio, 392 U.S. 1 (1968), a police officer can stop and detain an individual on the street if he or she has probable cause to believe that individual was involved in a crime. New York State refined this broad construction in People v. DeBour, 40 N.Y.2d 210 (1976). DeBour added a level called “reasonable suspicion” where a police officer who harbored a reasonable suspicion that a suspect had committed a crime could stop, question, detain and frisk. These cases became the basis of the much maligned “stop and frisk” policy under which the New York Police Department disproportionately detained and searched minority suspects. The public possession and consumption of small quantities of marijuana was often the source of the reasonable suspicion.

Under New York’s new law, public consumption of marijuana can no longer serve as the basis for any police interaction whatsoever. Pursuant to an internal NYPD memo, dated March 31, 2021, smoking marijuana in public is “not a basis for an approach, stop, summons arrest or search.” Further, the smell of marijuana alone can no longer serve as probable cause to search a vehicle. There are exceptions if the officer has reason to believe the marijuana has been burnt recently such that the driver may be under the influence.

Notably, the new law also legalizes the transfer of marijuana between individuals so long as no compensation is exchanged. The sale of three ounces or less is a violation (a non-criminal offense) (PL Sec. 222.45). The sale of more than three ounces becomes a class A misdemeanor with the severity increasing as the weight increases. (PL Sec. 222.50-222.65).

The legalization of recreational marijuana represents a sea change for the criminal law in New York. Cannabis served as the basis of many police interactions with the public to the significant detriment of minority communities. The new law makes clear that such conduct from law enforcement is no longer proper in New York.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533