On Wednesday, 16 September 2026, New York’s highest court will spend part of its morning on a question that sounds narrow and is not: if a state trooper smelled marijuana in a car in 2020, before New York legalised adult-use cannabis, and the search that followed is challenged in court after legalisation, does the new law’s ban on odor-only searches apply to that hearing? The answer will decide the fate of evidence in an unknown number of cases that were stopped, searched and charged under the old rules but are still moving through the courts under the new ones.
The case is People v Martin (Darnell M.), No. 76 on the Court of Appeals’ September calendar. The court’s own case issue statement frames the question in one sentence: whether Penal Law § 222.05 (3) (a), enacted as part of the Marihuana Regulation and Taxation Act, applies to a post-enactment suppression hearing concerning a pre-enactment search. Behind that sentence sits a 3–2 split in the Appellate Division, Third Department, a contrary ruling from the Second Department, and a footnote in a 2023 Court of Appeals decision that deliberately left the door open.
Why the New York marijuana odor search court case matters beyond one traffic stop
For half a century, the smell of marijuana was one of the most powerful tools a New York police officer had. Under a rule the Court of Appeals confirmed in People v Chestnut in 1975, an officer trained to recognise the odor could treat it as probable cause to search a vehicle and everyone in it. No warrant, no other evidence, no visible contraband required. If the search then turned up a gun, cocaine or a scale, that evidence was admissible because the search that found it was lawful.
The Marihuana Regulation and Taxation Act, usually shortened to MRTA, took effect on 31 March 2021. It did more than legalise possession of up to three ounces of cannabis and 24 grams of concentrate for adults aged 21 and over. It also rewrote the rules of evidence for the courtroom. The text of Penal Law § 222.05 now says that in any criminal proceeding, including suppression hearings, no finding of reasonable cause to believe a crime has been committed may rest solely on the odor of cannabis, the odor of burnt cannabis, or possession of cannabis in legal amounts. The only carve-out is for investigations into driving while impaired, and even there the smell of burnt cannabis does not open up parts of a car the driver cannot readily reach.
That is the rule going forward. Nobody disputes it for searches conducted after 31 March 2021. The dispute in Martin is about the gap: searches that were lawful on the day they happened, but whose evidence was not weighed by a judge until after the law changed.
What happened on 30 September 2020
The facts, as set out in the Third Department’s decision of 26 June 2025, are not in dispute. A state trooper stopped a white 2011 Volkswagen Jetta in the Village of Fort Ann, Washington County, for excessively tinted windows. When the driver rolled the window down, the trooper smelled marijuana and ordered everyone out. A search of the occupants found marijuana cigarettes on two of them, including a passenger named Darnell Martin. A backpack in the trunk contained a digital scale and a white powder later confirmed to be cocaine. Martin admitted the backpack was his.
Both the majority and the dissent in the Third Department agree that, on that day, the trooper had probable cause. Under the law as it stood in 2020, the odor alone was enough.
The timing is what turned an ordinary drug case into a test case. Martin was indicted on 25 March 2021, six days before MRTA took effect. His suppression hearing, the pre-trial proceeding where a judge decides whether evidence was lawfully obtained, happened after the new law was already in force. Martin’s lawyer argued that the judge was now barred by statute from finding probable cause on odor alone. The Washington County Court disagreed, ruling that applying the new provision to a 2020 search would be an improper retroactive application of the law. Martin pleaded guilty to third-degree criminal possession of a controlled substance and was sentenced on 1 October 2021 to five years of probation, then appealed.
How the Third Department split three to two
The Appellate Division’s Third Department reversed. Writing for the majority, Justice Robert Lynch anchored the decision in the wording of the statute itself. Section 222.05 (3) (a) is written in the present tense and expressly names suppression motions under Criminal Procedure Law 710.20. In the majority’s reading, that makes it a rule about what a court may find today, not a rule about what a trooper could lawfully do in 2020. A statute does not become retroactive simply because the events it is applied to happened earlier; it becomes retroactive only if it strips away rights a party held when they acted, or adds new liability for past conduct. The prosecution, the majority reasoned, never had a vested right to have evidence admitted on a basis the legislature has since withdrawn.
The majority also had to reckon with People v Pastrana. In that 2023 decision, the Court of Appeals held that nothing in MRTA’s text or legislative history showed an intent to retroactively invalidate searches conducted before the effective date. But Pastrana involved a 2015 roadblock stop in the Bronx and a conviction that became final in 2018, three years before legalisation. The suppression hearing in that case happened under the old law. The Court of Appeals said so explicitly, in a footnote noting that the question of a post-enactment hearing on a pre-enactment search was not before it. The Third Department majority read that footnote as an invitation.
Justice John Egan Jr., joined by Justice Mackey, dissented. The dissent argued that limiting what evidence can establish reasonable cause is not a mere procedural tweak but a change to the substantive rights of the parties, because it effectively alters the standard that applied at the time of the search and could remove the prosecution’s evidence entirely. The dissent also pointed to General Construction Law § 94, which says that pending proceedings under a repealed statute continue as if the repeal had not happened unless the legislature says otherwise, and found no such direction anywhere in MRTA. In the dissent’s view, the odor rule makes sense only because possession is no longer a crime; applying it to 2020 conduct, when possession was a crime, is a category error.
The result was an order reversing the judgment, vacating the guilty plea and granting suppression. Leave to appeal to the Court of Appeals was granted on 18 August 2025.
The Second Department went the other way
Four months after Martin, the Appellate Division’s Second Department, which covers Brooklyn, Queens, Staten Island, Long Island and the lower Hudson Valley, considered the same question in People v Fasoli and expressly declined to follow the Third Department. The Second Department adopted the reasoning of the Martin dissent and held that the operative date for deciding whether § 222.05 (3) applies is the date the search was performed, not the date of the suppression hearing.
That left New York with two intermediate appellate courts applying opposite rules to the same statute, and trial judges in different parts of the state reaching different results on identical facts. A conflict of that kind is exactly what the Court of Appeals exists to resolve, and the September calendar shows the court has paired Martin with a second case, People v Cheristin (Joshua), which raises the same suppression question alongside a separate issue about appeal waivers.
The split has been noticed outside New York. When Maryland’s Supreme Court decided a closely related question this year about its own post-legalisation odor statute in Cutchember v State, it walked through both Martin and Fasoli as competing models before choosing its own path. Whatever the Court of Appeals decides on 16 September will be read in other states that legalised cannabis and wrote similar evidentiary limits into their statutes.
What each outcome would mean in practice
If the Court of Appeals affirms the Third Department, the rule statewide becomes simple: a judge sitting after 31 March 2021 cannot base probable cause on odor alone, regardless of when the search occurred. Defendants whose suppression hearings are still pending, or whose direct appeals are still open, could see evidence excluded that would have been admitted under the old rule. The number of such cases is unknown; the litigation window is narrowing every year as pre-2021 cases reach final judgment.
If the court reverses and adopts the Second Department’s view, the date of the search controls. A 2020 odor search stays valid, and the evidence stays in. The new evidentiary limit would apply only to searches conducted from 31 March 2021 onward.
A third possibility is a narrower ruling that turns on the precise wording of the statute, or on whether the prosecution had other evidence besides odor. In Martin, the County Court’s probable cause finding rested on the odor alone, which is why the Third Department treated the case as a clean vehicle for the question. The Court of Appeals could still find a way to decide less than the parties have asked.
Whichever way the court goes, the ruling will not reopen convictions that became final before legalisation. Pastrana already closed that door in 2023, and the United States Supreme Court declined to review it in 2024. Martin is about the cases caught in between.
What this case does not decide
It is worth being clear about the limits of the dispute. Nobody in Martin is arguing that odor searches conducted after legalisation are lawful; the statute forbids them. Nobody is arguing that the trooper acted improperly in 2020; both sides agree he did not. And nobody is asking the court to revisit the 1975 Chestnut rule itself, which has simply been overtaken by the legislature for post-2021 conduct.
The question is one of statutory interpretation and retroactivity doctrine: when a legislature changes the rules of evidence in the middle of a case, does the change govern the hearing that has not yet happened, or the search that already has? Courts have answered that question differently for different kinds of statutes, and the Court of Appeals’ answer here will depend on whether it sees § 222.05 (3) (a) as a rule for judges or a rule for police.
For readers following New York’s cannabis market more broadly, the case is a reminder that legalisation did not arrive as a single event. The state’s regulated dispensaries are now selling billions of dollars of product a year, yet the criminal justice system is still processing the tail end of prohibition, case by case. The same tension shows up in enforcement: New York state police still make large cannabis seizures during traffic stops when quantities exceed legal limits, and the state’s own industry progress reports track enforcement actions alongside sales figures. Nationally, public support for legalisation sits near record highs while the federal prohibition remains in place, which means the state-level line between lawful and unlawful conduct is where most of the practical questions are still being answered.
A decision in Martin is not expected on the day of argument. The Court of Appeals typically issues its written opinions weeks or months after hearing a case.
FAQ
Oral argument is scheduled for Wednesday, 16 September 2026, according to the court’s published September calendar. The court does not rule from the bench; a written decision usually follows within several weeks to a few months. The calendar is subject to change, and the court’s Clerk’s Office is the authoritative source for scheduling updates.
Since 31 March 2021, Penal Law § 222.05 (3) provides that in any criminal proceeding, including a suppression hearing, a finding of reasonable cause to believe a crime was committed cannot be based solely on the odor of cannabis, the odor of burnt cannabis, or possession of cannabis in amounts the law allows. The exception is an investigation into driving while impaired by drugs, and even then the odor of burnt cannabis does not justify searching areas of a vehicle the driver cannot readily reach. Whether this rule applies to searches conducted before 31 March 2021 but reviewed by a judge afterwards is the question in Martin.
Partly. In November 2023 the court held that MRTA does not retroactively invalidate searches conducted before the law took effect, in a case where both the search (2015) and the conviction (2018) predated legalisation. The court explicitly noted that it was not deciding what happens when the search is pre-enactment but the suppression hearing is post-enactment. Martin fills that gap.
The Third Department majority read § 222.05 (3) (a) as a present-tense instruction to courts about what evidence can support a probable cause finding, so it applies to any hearing held after the effective date. The Third Department dissent and the Second Department in People v Fasoli read it as a substantive change that would retroactively alter the legal standard governing the search, so the search date controls. Both readings are defensible on the text, which is why the Court of Appeals agreed to hear the case.
