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THE MARIJUANA REGULATION AND TAXATION ACT (MRTA) APPLIES TO THE EVIDENCE PRESENTED AT A SUPPRESSION HEARING AND PRECLUDES A FINDING OF PROBABLE CAUSE TO SEARCH A VEHICLE BASED SOLELY ON THE ODOR OF MARIJUANA; THEREFORE THE STATUTE APPLIES HERE WHERE, ALTHOUGH THE SEARCH WAS PRE-ENACTMENT, THE SUPPRESSION HEARING WAS POST-ENACTMENT (THIRD DEPT).

The Third Department, granting defendant’s suppression motion and vacating defendant’s guilty plea, in a full-fledged opinion by Justice Lynch, over a dissent, determined the Marijuana Regulation and Taxation Act (MRTA), which prohibits the search of a vehicle based solely on the odor of marijuana, applied to defendant’s case, even though the statute had not been enacted at the time of the search. The statute had been enacted at the time of the suppression hearing:

On this appeal, we are tasked with answering a question left open by the Court of Appeals in People v Pastrana (41 NY3d 23, 29 [2023] …) — namely, whether Penal Law § 222.05 (3) (a), enacted as part of the Marihuana Regulation and Taxation Act (hereinafter MRTA), applies to a post-enactment suppression hearing concerning a pre-enactment search. * * *

… Penal Law § 222.05 (3) (a) — enacted as part of the MRTA — provides that “in any criminal proceeding including proceedings pursuant to [CPL] 710.20 . . . , no finding or determination of reasonable cause to believe a crime has been committed shall be based solely on evidence of . . . the odor of cannabis” … . CPL 710.20 pertains to motions to suppress evidence. By this comprehensive and present tense language, Penal Law § 222.05 (3) (a) expressly limits a suppression court’s authority to base a probable cause finding solely upon evidence of the odor of marihuana without regard to when the vehicle search occurred. * * *

… [T]his provision is directed at the present evidentiary findings of a court, “and no real question of retroactive effect on past conduct or events is presented” … . Since Penal Law § 222.05 (3) (a) was in effect at the time of the suppression hearing and the suppression court’s probable cause finding was based solely upon the fact that the trooper smelled the odor of marihuana emanating from the vehicle, that determination was erroneous as a matter of law … . People v Martin, 2025 NY Slip Op 03842, Third Dept 6-26-25

Practice Point: Here the Marijuana Regulation and Taxation Act (MRTA) was deemed to apply to the evidence which can be considered at a probable-cause-to-search-a-vehicle hearing. Therefore there was no need to apply the statute retroactively where the search was pre-enactment but the suppression hearing was post-enactment.

 

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