Can Police Search a Car for the Smell of Weed in New Mexico? Odor Isn’t Even Suspicion Outside a DWI

New Mexico’s legislature answered the odor question before any court did. The answer sits on top of a rule officers here have worked under since 1997: even real probable cause doesn’t open a car by itself.

Can Police Search a Car for the Smell of Weed in New Mexico? Odor Isn’t Even Suspicion Outside a DWI

Not on odor. Since June 29, 2021, NMSA 1978, § 26-2C-25(C)(1) has said the odor of cannabis or burnt cannabis is not reasonable articulable suspicion of a crime and “is not a basis to stop, detain or search a person” — except in a DWI investigation (§ 26-2C-25(D)). And New Mexico has no automobile exception: even with probable cause, a warrantless car search needs exigent circumstances or another exception such as consent (State v. Gomez, 1997-NMSC-006).

New Mexico: odor and the car — By statute, odor isn't reasonable suspicion outside a DWI. And there's no automobile exception. — New Mexico: odor and the car — the statute, the controlling cases, and what still gets you into the car. The full breakdown lives inside StreetSense, offline.

The statute — what § 26-2C-25(C) says

“None of the following shall, individually or in combination with each other, constitute reasonable articulable suspicion of a crime and is not a basis to stop, detain or search a person: (1) the odor of cannabis or cannabis extract or of burnt cannabis or cannabis extract” — and, in (2) and (3), possession or multiple containers without evidence of more than the legal amount.
Read it closely. Raw and burnt odor are both named, and you can’t stack the smell with a lawful amount or a few containers to reach suspicion.
Subsection (A) adds that lawful adult conduct — possessing or transporting no more than the legal amount — “shall not constitute grounds for detention, search or arrest of a person or search of property.”
What it doesn’t say: (C) speaks of searching “a person”; (A) is the clause that mentions property. No appellate court has construed either against a car search, and the section states no exclusion remedy. We found no appellate decision applying § 26-2C-25(C) at all.

The DWI exception — § 26-2C-25(D)

(A)(1) and (C) “shall not apply when a law enforcement officer is investigating whether a person is operating a vehicle or watercraft while intoxicated or under the influence of or impaired by alcohol or a drug” under § 66-8-102 or § 66-13-3.
So in an impaired-driving investigation the odor bar steps aside, and the smell is one more clue. Outside one, it isn’t suspicion of anything.

Gomez — no automobile exception

Gomez (New Mexico Supreme Court): “a warrantless search of an automobile and its contents requires a particularized showing of exigent circumstances.” That covers closed containers in the car.
The test is objective, and “[i]f reasonable people might differ about whether exigent circumstances existed, we defer to the officer’s good judgment.” The Court added that “in most cases involving vehicles there will be exigent circumstances,” but rejected the federal bright-line rule.
State v. Rowell, 2008-NMSC-041 (5–0), reaffirmed Gomez. State v. Bomboy, 2008-NMSC-029, warned against reading it too broadly and allowed seizure of an item in plain view after a lawful roadside stop.
In Gomez the defendant was handcuffed and the search still held: a late-night crowd of up to 100, a car that would not stay put, no tow truck. In State v. Warsaw, 1998-NMCA-044 (Court of Appeals), the car was already locked in a secured impound lot — no exigency, so get the warrant.

Perry — the 2019–2021 window only

State v. Perry (N.M. July 9, 2025) (5–0), held that the 1982 rule that “[t]he smell of marijuana alone can satisfy the probable cause requirement for a warrantless search” applies in the “postdecriminalization, prelegalization setting” — a November 2020 stop. It decided the Fourth Amendment question only.
On remand the Court of Appeals held the same under Article II, Section 10 (State v. Perry (N.M. Ct. App. Nov. 24, 2025), cert. denied Feb. 11, 2026). The rule is “can satisfy,” not “satisfies.”
Perry was a consent search. The Court of Appeals upheld the consent because the officer’s claim of authority was justified: the officer “in fact possessed probable cause” under the law then in force.
Neither opinion says anything about conduct after June 29, 2021. Don’t cite Perry for a stop today.

How much is legal, and in the car

Adults 21 and over may possess and transport up to 2 ounces of cannabis, 16 grams of extract and 800 milligrams of edibles (§ 26-2C-25(A)(1); § 26-2C-30(B)).
Over the limit in public: more than 2 up to 8 ounces is a misdemeanor; more than 8 ounces, 64 grams of extract or 3,200 milligrams of edibles is a fourth-degree felony (§ 26-2C-30(B)). Under 21: a civil violation — a four-hour drug education program or four hours of community service (§ 26-2C-30(A)).
Smoking in a public place: $50 civil penalty (§ 26-2C-26). New Mexico has no cannabis open-container, sealed-package or trunk statute. § 66-8-138 covers alcohol only.

The federal floor — and why it doesn't decide your case

Under the Fourth Amendment the automobile exception needs probable cause and nothing more (Maryland v. Dyson, 527 U.S. 465 (1999)), and marijuana is still illegal under federal law.
Perry itself was decided under the Fourth Amendment, and only for the 2019–2021 window.
That is the floor. In New Mexico, § 26-2C-25 and Article II, Section 10 sit above it. Work to the statute and Gomez.

How it plays out on the street

Speeding stop on the interstate. Strong smell of burnt cannabis, adult driver, clear eyes, nothing in view. Under § 26-2C-25(C) that odor isn’t reasonable suspicion — no extension and no search on it. Write the speed. Change one fact: a mile of weaving and slurred speech. Now you’re investigating DWI, (D) lifts the odor bar, and the smell goes in the report as a clue. If you develop probable cause of a crime — an over-limit amount in public, an under-21 possessor, other contraband — Gomez still wants exigency, consent or a warrant. And once the car is behind the impound fence, it’s a warrant (Warsaw).

Frequently asked questions

Can police search your car for the smell of weed in New Mexico?

Not on the smell. Since June 29, 2021, NMSA § 26-2C-25(C) provides that the odor of cannabis or burnt cannabis is not reasonable articulable suspicion of a crime and is not a basis to stop, detain or search a person, except in a DWI investigation. And New Mexico has no automobile exception: even with probable cause, a warrantless vehicle search needs exigent circumstances or another exception such as consent (State v. Gomez, 1997).

Is the smell of marijuana still probable cause in New Mexico after State v. Perry?

Perry (N.M. 2025) held that odor alone can satisfy probable cause only for conduct during the 2019 to June 2021 decriminalization period, before adult possession became legal. It says nothing about later conduct. Since June 29, 2021, § 26-2C-25(C) says odor is not even reasonable suspicion outside a DWI investigation, and we found no appellate decision applying that section yet.

How much weed can you have in your car in New Mexico?

Adults 21 and over may possess up to 2 ounces of cannabis, 16 grams of extract and 800 milligrams of edibles in public. More than 2 and up to 8 ounces is a misdemeanor. New Mexico has no cannabis open-container law.

Carry the rule, not the guesswork. StreetSense breaks down New Mexico law like this — the statute, the limit, and the charge that actually sticks — verified against the code and available fully offline on shift. Start the free trial.

StreetSense is an educational reference for law enforcement, not legal advice. State law changes, and your department policy may be stricter than the statute. Always follow your state’s current rule and your agency’s policy.

Spot an error? Email nick@mnsindustriesllc.com with the post and your source. Corrections to the app go out over the air. How we verify.