State v. T. T. ( 2021 )

408
Argued and submitted June 18, 2020, affirmed January 6, petition for review
denied April 22, 2021 (368 Or 37)
In the Matter of T. T.,
a Youth.
STATE OF OREGON,
Respondent,
v.
T. T.,
Appellant.
Multnomah County Circuit Court
17JU09608;
Petition Number 171031313;
A168707
479 P3d 598
Youth was a backseat passenger in a car that was pulled over for speeding.
A state trooper smelled marijuana and investigated, and he eventually searched
the car and discovered large bags of marijuana in the trunk. Based on that evi-
dence and other admissions by youth, the juvenile court found youth to be within
its jurisdiction for acts that, if committed by an adult, would constitute unlawful
delivery of a marijuana item and unlawful possession of marijuana by a person
under the age of 21. On appeal, youth assigns error to the denial of his motion
to suppress, arguing that the trooper lacked reasonable suspicion to turn the
traffic stop into a drug investigation and, in any event, lacked probable cause
to search the vehicle. The primary issues on appeal are (1) whether the traffic
stop unlawfully turned into a drug investigation when the trooper asked where
they were coming from and how long they had been there; (2) if not, whether
the trooper, at a later point in the traffic stop, had reasonable suspicion to ask
the driver and youth to get out of the vehicle for a drug investigation; and (3) if
the traffic stop was lawfully converted into a drug investigation, whether the
trooper developed probable cause to search the car under the automobile excep-
tion to the warrant requirement. Held: Youth failed to preserve his argument
that the stop was illegal at the point of the trooper’s initial inquiry about their
travel, and the questions raised by youth in light of the Supreme Court’s decision
in State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019), are not obvious for
purposes of plain-error review. With regard to reasonable suspicion later in the
traffic stop, because it was lawful for persons 21 and over to possess some amount
of marijuana in Oregon at the time of the stop, the odor of usable marijuana in
the vehicle was unremarkable, and the fact that the marijuana was not on the
driver’s person did not make it objectively reasonable to believe that the underage
passengers were the ones in possession of it—let alone that the driver had deliv-
ered it to them unlawfully. But the trooper had reasonable suspicion of a different
crime. As to reasonable suspicion of drug trafficking, four of the facts identified
by the trooper were drug-courier profiling facts, which are accorded minimal
weight under the Oregon Constitution, unlike the role they play in a reasonable
suspicion analysis under the Fourth Amendment. However, here, those facts,
bolstered by the additional facts of the vehicle’s unusual travel pattern and the
Cite as 308 Or App 408 (2021) 409
driver’s effort to conceal that pattern, were enough to create reasonable suspicion
of drug trafficking. With additional information from questioning the driver and
passengers, the trooper had probable cause to search the car under the automo-
bile exception.
Affirmed.
Xiomara Y. Torres, Judge.
Christa Obold Eshleman argued the cause for appellant.
On the brief was Matthew J. Steven.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
JAMES, J.
Affirmed.
410 State v. T. T.
JAMES, J.
Youth was a backseat passenger in a car that was
pulled over for speeding. A state trooper smelled marijuana
and investigated, and he eventually searched the car and
discovered large bags of marijuana in the trunk. Based on
that evidence and other admissions by youth, the juvenile
court found youth to be within its jurisdiction for acts that,
if committed by an adult, would constitute unlawful deliv-
ery of a marijuana item and unlawful possession of mari-
juana by a person under the age of 21.
On appeal, youth assigns error to the denial of his
motion to suppress, arguing that the trooper lacked reason-
able suspicion to turn the traffic stop into a drug investiga-
tion and, in any event, lacked probable cause to search the
vehicle. The primary issues before us end up being three-
fold: (1) Did the traffic stop unlawfully turn into a drug
investigation when the trooper asked where they were com-
ing from and how long they had been there? (2) If not, did
the trooper, at a later point in the traffic stop, have reason-
able suspicion to ask the driver and youth to get out of the
vehicle for a drug investigation? And (3), if the traffic stop
was lawfully converted into a drug investigation, did the
trooper develop probable cause to search the car under the
automobile exception to the warrant requirement? As dis-
cussed below, we conclude that youth failed to preserve his
argument that the stop was illegal at the point of the troop-
er’s initial inquiry about their travel; that the trooper asked
the driver and youth to get out of the car after developing
reasonable suspicion that the car and its occupants were
involved in importing marijuana from California; and that,
with additional information from questioning the driver
and passenger, the trooper had probable cause to search
the car.
I. BACKGROUND
In reviewing the denial of a motion to suppress evi-
dence, we are bound by the juvenile court’s factual findings
to the extent that those findings are supported by evidence
in the record. State v. Arreola-Botello, 365 Or 695, 697, 451
P3d 939 (2019). In this case, the juvenile court made express
Cite as 308 Or App 408 (2021) 411
findings of fact, which youth does not challenge on appeal.
Those facts are as follows: 1
“Youth was a passenger in the vehicle that was lawfully
stopped for speeding on Interstate 5 [on October 31, 2017].
It was stopped going about 80 miles an hour in a 60 miles
an hour zone * * *. The vehicle was northbound, was trav-
eling northbound near mile post 254. Trooper Smith from
the Oregon State Police testified he observed three males
in the vehicle. Two in the front seat, one in the back seat.
“The passenger in the front and the passenger in the
rear appeared to be to the trooper under the age of 18.
As Trooper Smith * * * walked over around to the front-
passenger window—[it] may have been the rear-passenger
window, but to the passenger window, he smelled the strong
odor of green, non-smoked marijuana. He did not see mari-
juana in the car.
“Trooper Smith has been employed with the Oregon
State Police for three and a half years. He testified that due
to his training and experience, he is familiar with the smell
of both burnt marijuana and the smell of dry green mar-
ijuana. He testified there is a marked difference between
[the] two.
“He did ask the driver, who was an adult, for his license,
registration, and proof of insurance. [The driver told
Trooper Smith that the vehicle was a rental car and that
he had to grab the rental agreement]. While the driver was
looking for [the requested documents, Trooper Smith asked
the driver where they were coming from and how long they
had been there. The driver] told Trooper Smith they were
coming from Redding, California and that they had been
there a couple of days.
“When Trooper Smith saw the rental agreement, he
noticed that the vehicle had just been rented on the 29[th],
the day before [at] the Portland airport.
“Based on his training and experience, Trooper Smith
testified that it’s common to use rental cars to traffic
[drugs]. Trooper Smith asked the driver, the adult, who
was age 25 to step out of the car. As he exited, he noticed
1
Here, and later in our discussion, we have supplemented the juvenile
court’s express findings to give them further context. In doing so, we presume
that the juvenile court resolved any factual disputes in a manner consistent with
its ultimate conclusion. See Arreola-Botello, 365 Or at 697.
412 State v. T. T.
the smell of air freshener coming from the vehicle, and as
he walked to the back of the vehicle with the driver, he
could not smell marijuana on the driver.
“He was [suspicious that] the adult driver was furnish-
ing marijuana to the juvenile passengers. He asked the
driver to clarify his questions about the trip to California.
The driver’s answers were vague. Trooper Smith did
request a cover call. He asked to speak to the youth outside,
the youth outside the car so he can talk to him[, and youth
got out of the vehicle]. * * *.
“Trooper Smith asked the youth questions about the
trip. The youth gave a different story than the driver. The
passenger in the front seat gave a third version of the story.
“The driver was asked why the stories were so different.
He then admitted that he had received an ounce of mari-
juana in the State of California.
“Trooper Smith searched the vehicle, located luggage
bags in the trunk, three large bags which contained a large
amount of marijuana which turned out to be approximately
39 pounds. A pistol was found under [the] marijuana.
“In the center console Trooper Smith found a small
bag of marijuana. All three occupants of the vehicle were
placed under arrest. Trooper Smith found $1,705 in cash in
the youth’s possession.”
Based on those events, the state petitioned the juve-
nile court to find youth within its jurisdiction for acts that, if
committed by an adult, would violate ORS 475.346 (unlaw-
ful delivery of a marijuana item) and ORS 475.341 (unlaw-
ful possession of marijuana by a person under the age of 21).
Youth then moved to suppress the state’s evidence, arguing
that the trooper’s investigation of drug crimes and search of
the vehicle violated his rights under Article I, section 9, and
the Fourth Amendment. He argued that, rather than citing
the driver “for speeding and letting the vehicle go, Trooper
Smith ordered [the driver] out of the vehicle and made unre-
lated inquiries about drugs, having no reasonable suspicion
or probable cause to do so, given that marijuana is legal to
possess for [the driver], a 25-year-old.” And, following that
illegality as to the driver, the trooper ordered youth out of
the car and unlawfully questioned him about their travels.
Cite as 308 Or App 408 (2021) 413
With regard to the search of the trunk, youth argued that,
“[g]iven that marijuana is legal for adults 21 years of age
and older, odor of marijuana alone is no longer enough to
establish probable cause of criminal activity.” Thus, youth
sought to suppress “all evidence gained from the illegal
search, including the marijuana and firearm found in the
center console and trunk of the vehicle, as all evidence was
obtained in violation of Article I, section 9 of the Oregon
Constitution, and the Fourth and Fourteenth Amendments
to the United States Constitution.”
The state contended that, regardless of whether
adults can possess marijuana, it remains illegal to furnish
it to minors, which is what the trooper reasonably suspected
was happening at the point that the traffic stop turned into
a drug investigation. And, the state argued, once the driver
stepped out of the vehicle and did not smell of marijuana,
the trooper had probable cause to believe that there was
marijuana “in the vehicle and therefore in the possession
of the juveniles.” The state further argued that the trooper
had reasonable suspicion that the driver was trafficking
drugs and that the driver’s eventual admission that he had
imported marijuana from California into Oregon supplied
probable cause to believe that the driver was violating ORS
475B.227 (2017), amended by Or Laws 2018, ch 103, § 21
(importing and exporting marijuana), thereby providing an
independent basis for searching the vehicle.
The juvenile court denied youth’s motion. It stated
that youth was stopped at the moment that he was told to
leave the car but concluded that “the stop of the youth was
supported by reasonable suspicion of criminal activity, i.e.,
the possession of marijuana.” The court further ruled that
the search of the trunk fell within the automobile excep-
tion to the warrant requirement, because “Trooper Smith
had probable cause to believe that the vehicle contained con-
traband, a large amount of marijuana based on the smell.”
After the court denied the motion, youth admitted to addi-
tional factual allegations, conditioned on his right to appeal
the suppression ruling. Based on the evidence discovered
during the stop and youth’s admissions, the court found
youth within its jurisdiction.
414 State v. T. T.
Youth appealed that judgment, assigning error to
the denial of his suppression motion. In his opening brief,
youth argued that the trooper “immediately expanded the
investigation beyond the traffic stop to ask about the pur-
pose of the trip,” which violated Article I, section 9, because
there was no objectively reasonable belief that a crime was
being committed at that point. Youth also argued, as he had
below, that the trooper’s belief that youth—as opposed to the
driver—was in possession of the marijuana was not objec-
tively reasonable. Additionally, youth argues that the prob-
able cause standard was not met by the facts known to the
trooper—namely, a strong odor of green marijuana in a car
driven by an adult, a car rental receipt that suggests that
the driver was in California for less time than he reported,
inconsistent stories among the car’s occupants, the vehicle’s
direction of travel, and an odor of air freshener or cologne.
The state responded that the stop was lawful under
the state and federal constitutions at each point in time: the
initial traffic stop was lawful, based on the trooper having
observed the driver speeding; the driver, “during a lull while
he was searching for registration and proof of insurance,”
told the trooper that they had driven down to Redding,
California, had stayed there for a couple of days, which
turned out to be inconsistent with the rental agreement for
the vehicle; that information, plus the strong odor of green
marijuana, gave the trooper reasonable suspicion to extend
the stop of the driver and to question youth; and, with addi-
tional information obtained from youth and the driver,
including inconsistencies in their stories and an admission
from the driver that he had brought an ounce of marijuana
from California, the trooper had probable cause to search
the vehicle.
After the parties briefed the case, the Supreme
Court decided Arreola-Botello, holding that, under Article I,
section 9, “all investigative activities, including investiga-
tive inquiries, conducted during a traffic stop are part of
an ongoing seizure and are subject to both subject-matter
and durational limitations,” such that “an officer is limited
to investigatory inquiries that are reasonably related to
the purpose of the traffic stop or that have an independent
Cite as 308 Or App 408 (2021) 415
constitutional justification.” 365 Or at 712. Following that
decision, youth filed a memorandum of additional authori-
ties, asserting that “Arreola-Botello supports youth’s argu-
ment that the officer violated Article I, section 9, of the
Oregon Constitution by expanding the investigation beyond
the traffic stop to ask about the purpose of the trip,” and
that it “likewise negates the State’s argument that the offi-
cer was justified in asking these questions due to a ‘lull’
while the driver was looking for his documents.”
II. ANALYSIS
In both the juvenile court and this court, the par-
ties have not always carefully delineated between Article I,
section 9 and the Fourth Amendment, or between the legal
significance of the stop of the driver and the stop of youth.
But, as we have noted,
“in Oregon, a passenger in a vehicle that is stopped by
police is Schrödinger’s passenger—he exists in two poten-
tial states, both seized and not seized, and only one of
those potential states becomes reality depending on the
lens through which we observe him. Viewing the encounter
through the lens of Article I, section 9, the passenger is not
seized when the vehicle is stopped. * * * In contrast, viewing
the encounter through the lens of the Fourth Amendment,
‘a police officer effectively seizes “everyone in the vehicle,”
the driver and all passengers’ for the duration of a traffic
stop. State v. Bailey, 356 Or 486, 507, 338 P3d 702 (2014)
([quoting] Arizona v. Johnson, 555 US 323, 327, 129 S Ct
781, 172 L Ed 2d 694 (2009); Brendlin v. California, 551 US
249, 255, 127 S Ct 2400, 168 L Ed 2d 132 (2007)).”
State v. Kamph, 297 Or App 687, 691-92, 442 P3d 1129 (2019)
(some internal quotation marks omitted).
The opening question in virtually any reasonable
suspicion or probable cause inquiry is identifying the point
in time when the alleged constitutional violation occurred.
Identifying that point in time is what enables the parties,
and the court, to consider the correct universe of facts at
play. In the context of a traffic stop in Oregon, because fed-
eral law and state law diverge with respect to when a pas-
senger is seized, which can, in turn, affect the point in time
of the potential constitutional violation, and accordingly
416 State v. T. T.
what universe of facts are considered in evaluating reason-
able suspicion or probable cause, we address the state and
federal constitutional issues separately.
A. Article I, Section 9
Article I, section 9, of the Oregon Constitution
provides:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure; and no warrant shall issue but
upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and
the person or thing to be seized.”
Under our well established “first things first”
approach, any discussion of a potential federal constitu-
tional violation is premature until we determine “whether
the state’s law * * * has deprived defendants of the rights
they seek to vindicate under the United States Constitution.”
State v. Babson, 249 Or App 278, 307, 279 P3d 222 (2012),
aff’d, 355 Or 383, 326 P3d 559 (2014). Accordingly, we
begin with assessing the stop in this case under Article I,
section 9 because “the state does not deny any right claimed
under the federal Constitution when the claim before the
court in fact is fully met by state law.” Sterling v. Cupp, 290
Or 611, 614, 625 P2d 123 (1981).
1. Were the driver and youth seized for a drug investiga-
tion before being asked to get out of the vehicle?
We begin with a brief overview of the principles that
apply to traffic stops under Article I, section 9, which estab-
lishes “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search,
or seizure.” Under that provision, a seizure occurs when
(1) a police officer intentionally and significantly interferes
with an individual’s liberty or freedom of movement; or (2) a
reasonable person, under the totality of the circumstances,
would believe that his or her liberty or freedom of movement
has been significantly restricted. State v. Ashbaugh, 349 Or
297, 316, 244 P3d 360 (2010).
A motorist can be stopped based on probable cause
of a traffic infraction, ORS 810.410, and “that stop implicates
Cite as 308 Or App 408 (2021) 417
Article I, section 9, because[,] ‘in contrast to a person on
the street, * * * the reality is that a motorist stopped for a
traffic infraction is legally obligated to stop at an officer’s
direction * * * and to interact with the officer, * * * and there-
fore is not free unilaterally to end the encounter and leave
whenever he or she chooses.’ ” Arreola-Botello, 365 Or at 701
(quoting State v. Rodgers/Kirkeby, 347 Or 610, 622-23, 227
P3d 695 (2010)). All investigative activities during a traffic
stop are part of an ongoing seizure of the driver and are
subject to durational and subject-matter limitations—that
is, “all such activities including inquiries, must be reason-
ably related to the purpose of the traffic stop or supported
by an independent constitutional justification.” State v.
Sheriff, 303 Or App 638, 647, 465 P3d 288 (2020) (citing
Arreola-Botello, 365 Or at 712-13, and State v. Watson, 353
Or 768, 778-82, 305 P3d 94 (2013)). In other words, a traf-
fic stop is a traffic stop, not an opportunity for a fishing
expedition:
“If, after stopping an individual based on probable cause
that the individual committed a traffic offense, an officer
may inquire into criminal activity without reasonable
suspicion of a specific crime, an officer will have less of
an incentive to develop the requisite reasonable suspicion
of that crime which ordinarily would be required to stop
the individual for a temporary criminal investigation. By
applying subject-matter limitations to investigative activ-
ities and questioning, Article I, section 9, ensures that
officers do not turn minor traffic violations into criminal
investigations without a constitutional basis for doing so.”
Arreola-Botello, 365 Or at 713.
The stop of a driver does not, in and of itself, result
in a seizure of all passengers under Oregon’s constitution.
State v. Stevens, 364 Or 91, 100, 430 P3d 1059 (2018). In
Stevens, the court reaffirmed that “a reasonable suspicion
that a driver has committed a traffic or other offense does
not justify a categorical limitation on the passenger’s free-
dom and that an officer may not seize a passenger without
a constitutional justification for doing so.” Id. By implica-
tion, “the passengers in a car stopped for a traffic or crimi-
nal offense would not understand that the officer’s show of
authority in stopping the driver extended to them.” Id.418 State v. T. T.
Therefore, for a passenger to be stopped, there must
be something more than the bare fact that the driver was
pulled over for a traffic violation. The circumstances must
be such that passengers, under the totality of the circum-
stances, would understand that the officer’s show of author-
ity in stopping the driver extended to them or that the offi-
cer was independently restricting their movement apart
from the stop of the driver. Id. (citing State v. Backstrand,
354 Or 392, 401, 313 P3d 1084 (2013) (“What is required is a
reasonable perception that an officer is exercising his or her
official authority to restrain.”)).
Youth’s arguments before the juvenile court under
Article I, section 9, were premised on the view that the driver
and youth had been seized unlawfully at the moment that
they were asked to get out of the car for questioning. For
example, he explained, “Now, after [the driver] is pulled out
of the vehicle, then [youth] is pulled out of the vehicle. And
under both Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution,
that action is significant because it restricts his freedom of
movement, restricts his liberty.”
On appeal, and particularly during oral argument,
when he had the benefit of Arreola-Botello, youth took a dif-
ferent position, contending that the lawful traffic stop turned
into an unlawful drug investigation even earlier—prior to
the trooper asking them to exit the car—when the trooper
asked the driver where they were coming from and how
long they had been there. He now argues that the trooper’s
questions to the driver effectuated a stop of the passengers
as well, because the inquiry was directed at the activities
of all occupants in the vehicle, not just the driver; the stop
occurred at night and on the highway; and the passen-
gers were juveniles who were dependent on the driver and
could not simply walk away. Under the totality of the cir-
cumstances, youth argues, he was not free to leave once the
trooper signaled that the investigation went beyond a traffic
stop by exceeding the subject-matter limitations recognized
in Arreola-Botello.
The state responds that youth did not preserve that
contention before the juvenile court, and we agree. Nothing
Cite as 308 Or App 408 (2021) 419
in youth’s written motion or arguments at the suppression
hearing put the state or the juvenile court on notice of an
argument that the trooper’s questions to the driver about
where they were coming from had transformed the stop of
the driver into a stop of the passengers, alone or in combi-
nation with any of the other attendant circumstances (that
the passengers were juveniles in a car pulled over on the
freeway at night). See State v. Hallam, 307 Or App 796, 803,
479 P3d 545 (2020) (concluding that the appellant had not
preserved a challenge based on the reasoning in Arreola-
Botello where the written motion and arguments at the sup-
pression hearing “understandably, tracked the law in effect
at the time”). Once again, youth’s argument below was that
an otherwise lawful traffic stop turned into an unlawful
drug investigation when the trooper asked the driver and
then youth to get out of the vehicle for questioning.
Youth’s unpreserved contentions involve important
and novel issues about what questions exceed the subject
limits on a traffic stop. Whether Schrödinger’s passenger
continues to exist under the Oregon Constitution in the wake
of Arreola-Botello, and even if so, whether previous cases
holding that an adult passenger isn’t stopped for purposes
of Article I, section 9 extend to a juvenile passenger in a car
driven by an adult, are complex questions. The answers to
those questions are not obvious and beyond reasonable dis-
pute on this record, and we will not review them as plain
error. Cf. Hallam, 307 Or App at 805 (reversing, notwith-
standing the lack of a request for plain-error review, where
the state “essentially concede[d]” that the trial court plainly
erred in light of Arreola-Botello). We therefore turn instead
to the question presented to the juvenile court: whether the
facts, as known to the trooper when he asked the driver and
youth to get out of the car, gave rise to reasonable suspicion.
2. Was the drug investigation supported by reasonable
suspicion?
“[T]he established standard for reasonable suspi-
cion supporting an investigatory stop of a defendant is met
when an officer can point to specific and articulable facts
that give rise to a reasonable inference that the defendant
committed or was about to commit a specific crime or type
420 State v. T. T.
of crime.” State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d
1121 (2017). The officer must have a subjective belief that the
person stopped has committed, or is about to commit, the
specific crime or type of crime, and that belief must be objec-
tively reasonable under the totality of the circumstances.
State v. Kreis, 365 Or 659, 665, 451 P3d 954, 960 (2019); see
also Maciel-Figueroa, 361 Or at 181 (“[T]his court has never
concluded that an officer had reasonable suspicion to stop an
individual based on nonspecific ‘criminal activity.’ ”).
As the Oregon Supreme Court made clear in Maciel-
Figueroa,
“[a] specific type of crime, for example, can be criminal mis-
chief, assault, theft, or kidnapping, with the differences in
the degrees of the crimes being immaterial to whether the
officers have reasonable suspicion. Another set of examples
of a specific type of crime is the possession or the deliv-
ery of a controlled substance. In those cases, the difference
between whether the substance is cocaine rather than
methamphetamine is also immaterial to the analysis of
reasonable suspicion.”
361 Or at 180.
Under Maciel-Figueroa, when considering the ques-
tion of reasonable suspicion, we must ask reasonable sus-
picion of what? The Oregon Constitution demands a level
of particularity to the subjective reasonable suspicion pos-
sessed by an officer. It is insufficient for an officer to have
reasonable suspicion of a “crime,” or “criminal conduct”
broadly. Likewise, it is insufficient for an officer to have
reasonable suspicion of “drugs,” or “narcotics crimes” gen-
erally. The range of the criminal code dealing with narcot-
ics is broad, encompassing many different types of activity.
Just as there is a difference between “criminal mischief,
assault, theft, or kidnapping,” Id., so too, there is a differ-
ence between possession, delivery, manufacture, or inter-
state transport. Reasonable suspicion of one does not create
blanket suspicion for them all.
Although requiring less than probable cause, rea-
sonable suspicion must be based on more than mere spec-
ulation. See State v. Holdorf, 355 Or 812, 822-23, 333 P3d
982 (2014) (articulating standard). That is, the state “need
Cite as 308 Or App 408 (2021) 421
not prove that the articulated facts give rise to a conclu-
sion with certainty that a crime has occurred or is about to
occur,” but, “based on the specific facts known and articu-
lated by the officer, a reviewing court must conclude that the
officer’s subjective belief could be true, as a matter of logic.”
Maciel-Figueroa, 361 Or at 184 (emphasis omitted).
An officer’s suspicion of the specific crime or type
of crime cannot be based on a hunch but must be particu-
larized to the individual based on the individual’s own con-
duct. Kreis, 365 Or at 665 (citing State v. Miglavs, 337 Or 1,
12-13, 90 P3d 607 (2004)). The standard incorporates “a
proper regard for the experience that police officers bring
with them when they encounter criminal suspects,” Holdorf,
355 Or at 827-28, but the officer must be able to point to
observable facts like “distinctive behavior” associated with
unlawful activity that permits the officer “to make a rea-
sonable inference based on the officer’s pertinent training
and experience” that the specific crime or type of crime is
afoot. State v. Walker, 277 Or App 397, 402, 372 P3d 540,
rev den, 360 Or 423 (2016) (internal quotation marks omit-
ted); State v. Aguilar, 307 Or App 457, 469-70, 478 P3d 558
(2020) (“training and experience is not, in and of itself, a spe-
cific and articulable fact” that can provide sufficient proof of
reasonable suspicion (internal quotation marks omitted)). In
other words, as a practical matter, “the distinction between
an officer’s improper reliance solely on intuition and the offi-
cer’s permissible reliance on reasonable suspicion of crimi-
nal activity reduces largely to the officer’s ability to identify
and describe the observable facts that lead the officer—in
light of the officer’s training and experience—to suspect
that a person has committed, is committing, or is about to
commit a crime.” Walker, 277 Or App at 402.
Importantly, “[a] court’s review of a stop is based on
the record made concerning the officer’s actual belief that
the defendant may have committed a crime, and the basis
for that belief—the specific facts, articulated by the officer,
that led him or her to believe that the defendant may have
committed a crime, which we then review as a matter of law
for objective reasonableness.” Maciel-Figueroa, 361 Or at
183 (internal citation omitted). We therefore begin by exam-
ining what the trooper identified as his subjective belief of
422 State v. T. T.
a specific crime—in this case, two crimes. At the suppres-
sion hearing, the trooper testified that, by the time that he
asked the driver and then youth to get out of the car, he
was conducting two different criminal investigations: “The
first would be possession of marijuana by minors,” and “the
second would be import of marijuana from California to
Oregon.” Although we understand the juvenile court to have
relied on the former to conclude that “the stop of the youth
was supported by reasonable suspicion of criminal activity,
i.e., the possession of marijuana,” we conclude that only the
latter provided a lawful basis on which to seize youth and
the driver as part of a drug investigation.2
a. Evidence of the odor of marijuana generally
Previously, we have rejected arguments that non-
qualified testimony about the smell of marijuana would fail
to establish reasonable suspicion. However, our reasoning
was dependent upon the legal status of marijuana as contra-
band in any amount:
“Defendant does not argue that marijuana becomes
contraband only in quantities of more than an ounce, and
we know of no authority for that proposition. Indeed, both
the legal and common definitions of ‘contraband’ indicate
that the term encompasses anything that the law prohib-
its possessing. Black’s Law Dictionary defines ‘contraband’
as ‘[g]oods that are unlawful to import, export, produce, or
possess.’ Id. at 365 (9th ed 2009); see also Webster’s Third
New Int’l Dictionary 494 (unabridged ed 2002) (‘goods or
merchandise the importation, exportation, or sometimes
possession of which is forbidden’). Marijuana falls within
these definitions regardless of its quantity.”
State v. Smalley, 233 Or App 263, 271, 225 P3d 844, rev den,
348 Or 415 (2010). With the changes to the legal status of
2
We note that the state spends little time on appeal defending “possession by
youth” as the basis for turning the traffic stop into a drug investigation. Instead,
the state casts “possession” as part of the importation issue, arguing that “youth
and the other juvenile, who were traveling with [the driver], appeared to be com-
plicit in that crime [of importation], which also would constitute unlawful posses-
sion of marijuana by those two.” It is unclear from its ruling whether the juvenile
court applied that logic or evaluated possession separately. However, because
the trooper’s subjective suspicion regarding possession by youth appears to have
been distinct from whether they were involved in the crime of importing mari-
juana from California, we discuss them separately.
Cite as 308 Or App 408 (2021) 423
marijuana in Oregon, the applicability of our reasoning in
Smalley has narrowed to the few remaining circumstances
where quantity does not matter in defining illegal activity.
This case presents a circumstance where quantity does mat-
ter, a circumstance that Smalley anticipated might arise in
the future but did not address.
Marijuana is now a legal substance for adults for
both recreational and medicinal use in Oregon. For recre-
ational use, under ORS 475B.337, any person 21 years of
age or older may lawfully possess one ounce or less of usable
marijuana in a public place and eight ounces or less of usable
marijuana in his or her home. Also, under ORS 475B.301, an
adult 21 years or older may possess up to four homegrown
marijuana plants.
For medical purposes, a registry identification card-
holder and designated primary caregiver may jointly pos-
sess up to 24 ounces of usable marijuana. ORS 475B.834(1).
Additionally, a registry identification cardholder and the
designated primary caregiver of the registry identifica-
tion cardholder may jointly possess up to six mature mar-
ijuana plants and 12 or fewer immature marijuana plants.
ORS 475B.831. Furthermore, a grower designated to pro-
duce marijuana by a registry identification cardholder may
possess the amount of usable marijuana that the grower
harvests from mature marijuana plants, not to exceed 12
pounds of usable marijuana per mature plant in outdoor
grow sites and six pounds for indoor grow sites, provided
that the amount does not exceed the amount reported to
the Oregon Health Authority under ORS 475B.816. ORS
475B.834.
In terms of transportation, a recreational user who
grows his own marijuana plants may transport them, sub-
ject to some limitations. ORS 475B.301. Home growers are
limited to “the delivery of not more than one ounce of usable
marijuana at a time by a person 21 years of age or older to
another person 21 years of age or older for noncommercial
purposes.” Id. Additionally, home growers may deliver up to
16 ounces of cannabinoid products in solid form, 72 ounces of
cannabinoid products in liquid form, and 16 ounces of can-
nabinoid concentrates. Id.424 State v. T. T.
In short, under Oregon law, the possession and
transport of marijuana, in a variety of amounts and forms,
is now legal. Oregon voters’ decriminalization of marijuana
necessitates our reassessment of the weight to be given to
testimony about the smell of marijuana. In making that
reassessment we are not alone.
Vermont concluded that the weight of testimony
about a smell of marijuana is strongly tied to testimony
qualifying that smell.
“The weight of that factor in determining whether probable
cause exists generally depends not only upon the nature and
strength of the odor and other factors accompanying the
odor, but also how those factors relate to the offense being
investigated. While adjectives assessing the strength of an
odor may be subjective and unhelpful at times in assess-
ing whether probable cause exists, see Commonwealth v.
Overmyer, 469 Mass 16, 11 NE3d 1054, 1059 (2014) (stat-
ing that ‘characterizations of odors as strong or weak are
inherently subjective’), the faint smell of burnt marijuana
is far less probative as to whether a car contains marijuana
than, say, an overpowering odor of fresh marijuana ema-
nating from the trunk of a car.”
Zullo v. State, 209 Vt 298, 348-49, 205 A3d 466, 502 (2019).
Similarly, Colorado approached the question in the
context of dog sniffs. There, the court concluded:
“Has the passage of Amendment 64 altered this settled
terrain? We began to explore this question in our recent
decisions in People v. Zuniga, 2016 CO 52, 372 P3d 1052,
and People v. Cox, 2017 CO 8, 401 P3d 509. In both Zuniga
and Cox, we found probable cause supporting an automo-
bile search based on a confluence of factors, including the
positive alert of a drug-detection dog that was trained to
alert to marijuana. Yet, in Zuniga, we concluded that the
alert was legally ambiguous because a drug-detection dog
can’t distinguish legal marijuana from illegal marijuana,
or legal marijuana from illegal narcotics. * * * Despite this
ambiguity, we held that the alert was still relevant to the
overall probable cause analysis. Id. Likewise in Cox, we
concluded that the positive alert of a drug-detection dog
was one factor, among many, supporting a finding of proba-
ble cause to search a stopped vehicle.
Cite as 308 Or App 408 (2021) 425
“In both Zuniga and Cox, we declined to address
(1) whether the sniff of a dog trained to detect marijuana
was a search, and (2) whether a positive alert from a dog
trained to detect marijuana alone could establish proba-
ble cause. Significantly however, these two recent decisions
suggest the answer to the latter question is no. We acknowl-
edged that, with the legalization of small amounts of mar-
ijuana, a dog’s alert doesn’t provide a yes-or-no answer to
the question of whether illegal narcotics are present in a
vehicle. At most, the alert could be ‘suggestive of criminal-
ity,’ but not determinative on its own.”
People v. McKnight, 2019 CO 36, ¶¶ 35-36, 446 P3d 397, 405-
06 (Colo 2019).
Like the Colorado and Vermont courts, we must
conclude that the change to the legal status of marijuana
in Oregon necessitates a change in our consideration of tes-
timony about the smell of marijuana. Previously, the ques-
tion was binary, yes or no. If marijuana was present, it was
unlawful, though the sanction varied from criminal to vio-
lation. The smell thus created a reasonable inference of con-
traband. With legalization, however, the basic question has
been altered. The issue is not whether marijuana is present,
but whether it is present in an amount above a particular
threshold that separates legal and illegal conduct. The issue
is further complicated by the fact that those thresholds
vary depending upon the source of the lawful possession—
recreational or medical use. Its presence below that thresh-
old is not simply unlawful activity sanctioned at a lower
level, it is entirely lawful conduct.
b. Furnishing marijuana to or possession of mari-
juana by juveniles
For juveniles, however, marijuana is still unlawful
in any amount. At the relevant time in October 2017, ORS
475B.337(1) applied to unlawful possession of marijuana by
persons 21 and older, and it made it unlawful to possess,
knowingly or intentionally, “[m]ore than one ounce of usable
marijuana in a public place” or “[m]ore than eight ounces of
usable marijuana.” However, chapter 475B made it unlawful
for anyone under 21 to possess any amount of marijuana,
see ORS 475B.316 (making it a violation for person under 21
426 State v. T. T.
years of age (except for licensees or licensee representatives)
to possess, attempt to purchase, or purchase a marijuana
item),3 and made it unlawful to deliver any amount of mar-
ijuana to a person under 21, see ORS 475B.346 (making it
unlawful for any person to deliver a marijuana item, subject
to exceptions in ORS 475B.301, which do not apply to per-
sons under 21).
Accordingly, smell may be more probative of reason-
able suspicion in that context. In this case, the trooper testi-
fied that, when he first approached the vehicle, he observed
that the front seat passenger and rear driver side passenger
were “definitely under 21,” and that, when the front passen-
ger window was rolled down, the trooper “was able to smell
the—a pretty strong odor of marijuana” and tell “that would
be the green non-smoked marijuana coming from the vehi-
cle.” He also “noted that there was no other luggage except
for the backpack on the rear passenger side of the vehicle.”
The trooper acknowledged that he was not able to
“tell exactly how much [marijuana was present] by odor
alone,” and that a strong odor “typically means that there’s
a larger quantity than a user amount”—what the trooper
described as “[a] couple of grams, like what would fill up a
joint, like an eighth of an ounce.” The trooper testified that,
based on those facts, he immediately “began to think that
since [the passengers] are under 21 years of age they are not
allowed to possess marijuana in any form.”
The trooper, however, did not identify anything spe-
cific about the passengers that would make it reasonable
to believe that the smell was coming from marijuana that
belonged to them as opposed to the adult driver. In fact, the
trooper testified that, at that point, he didn’t “have infor-
mation really to determine whose it is either way.” We have
explained that, “although an officer is not required to rule
out all innocent explanations for a person’s conduct before
stopping the person, * * * [t]he fact that the person’s conduct
is consistent with criminal activity is not necessarily enough
3
ORS 475B.341(1) applied to persons under 21 and elevated the violation to
a misdemeanor if the person possessed, knowingly or intentionally, “[m]ore than
one ounce of usable marijuana in a public place” or “[m]ore than eight ounces of
usable marijuana,” and to a felony for certain greater amounts, ORS 475.341(3).
Cite as 308 Or App 408 (2021) 427
to give rise to reasonable suspicion.” State v. Martin, 260 Or
App 461, 476, 317 P3d 408 (2014). Where behavior “is consis-
tent with criminal activity, but is not too remarkable, it will
not support a stop.” Id. (internal quotation marks omitted).
Had all of the vehicle occupants been under the age
of 21, the smell of marijuana would take on different signif-
icance. But, given the legality of an adult possessing some
amount of marijuana in Oregon, the smell of marijuana in
a car in which an adult is present is no longer remarkable,
and, by itself, does not give rise to reasonable suspicion that
it is being unlawfully possessed by or delivered to an under-
age passenger. An officer could not reasonably conclude from
the smell of fresh tobacco in a car—or even a pack of ciga-
rettes resting on the center console—that the adult driver
was unlawfully distributing cigarettes to a minor passenger
under ORS 323.482; nor, for that matter, would an unopened
six-pack of beer visible in the car, by itself, provide reason-
able suspicion that minor children near the beer were in
possession of that alcohol. This circumstance is not materi-
ally different.
Nor did the trooper learn anything more by the time
that youth was asked to get out of the vehicle that would
make it reasonable to believe that any marijuana in the car
belonged to the passengers rather than the driver. By that
point, the trooper also knew that the driver had recently
rented the vehicle, he knew that the driver was lying about
his trip to California, he “could smell that there was either
cologne or like an air freshener smell coming from the vehi-
cle” when the driver exited, and he knew that, when the
driver walked back to the front of the patrol car, he “could
not smell the odor of the marijuana coming from his per-
son, which made [the trooper] believe that the marijuana
was still placed somewhere in the vehicle and at this point
in possession—the minors had possession of the marijuana.”
(Emphasis added.)
Setting aside, for the moment, whether the passen-
gers may have been implicated in the crime of importing
marijuana (which we discuss below), those circumstances
suggested that the marijuana was not on the driver’s
person—and that the vehicle’s occupants wanted to conceal
428 State v. T. T.
the odor—but they did little to affirmatively connect posses-
sion to the underage passengers as opposed to the driver.
The marijuana was just as likely to have belonged to the
adult driver but been stored somewhere in the car rather
than on his person (a fact that would be consistent with the
trooper’s own observation that the smell was not from an
amount that typically would be located in a pocket). Again,
considering that it is lawful for persons 21 and over to pos-
sess some amount of marijuana in Oregon, the odor of usable
marijuana in the vehicle was unremarkable, and the fact
that the marijuana was not on the driver’s person did not
make it objectively reasonable to believe that the underage
passengers were the ones in possession of it—let alone that
the driver had delivered it to them unlawfully. Those possi-
bilities involve speculation about missing facts, not reason-
able inferences from the observed facts.
c. Importing marijuana
That brings us to the second basis that the trooper
articulated for seizing the driver and youth as part of a drug
investigation: whether the trooper, at the time he asked
them to get out of the vehicle, had reasonable suspicion that
the car and its occupants were importing marijuana from
California to Oregon.
At the time of the traffic stop, ORS 475B.227(2)
provided that “[a] person may not import marijuana items
into this state or export marijuana items from this state.”
For purposes of that statute, “export” included “placing a
marijuana item in any mode of transportation for hire, such
as luggage, mail or parcel delivery, even if the transporta-
tion of the marijuana item is intercepted prior to the mari-
juana item leaving this state.” ORS 475B.227(2). Critically,
ORS 475B.227(2) is not limited by quantity. Unlike general
delivery or possession, which is unlawful only when done
in quantities above a particular threshold, importation or
exportation of any amount of marijuana is illegal in Oregon.
As summarized in the state’s brief, the trooper
specifically identified that statute as a basis for his drug
investigation, and he identified the following facts, which he
knew at the time that he asked the driver and then youth to
Cite as 308 Or App 408 (2021) 429
step out of the vehicle, as contributing to his suspicion that
it had been violated:
• They were traveling I-5 which the trooper believed
to be a “heavy trafficking area.” As the trooper tes-
tified, “I-5 is used a lot to transport marijuana.”
• Their trip was to northern California. As the trooper
testified, “California, especially northern California
is a source area for marijuana.”
• They were traveling in a rental car, and, according
to the trooper it is “common for individuals that are
trafficking drugs to use a rental car to effectuate
that.”
• There was nothing visible in the vehicle to suggest
a long trip. According to the trooper “usually if peo-
ple are coming on a long trip, there’s bags in the car,
there’s pillows, blankets, you know, food, scraps,
wrappers, things like that, and there was nothing
in his car.”
• There was a “pretty strong odor” of green marijuana
coming from the vehicle.
• The driver had “lied about how long he had been in
California.”
• According to the trooper, “the quick turnaround
time is very unusual for somebody to drive 7
hours—7 plus hours to Redding, California, to turn
around and drive 7 plus hours back just a few hours
later. From my training and experience, that typi-
cally is used by people who are transporting drugs,
just making quick trips down to get the product and
come back up.”
The first four of those facts—those concerning the
point of origin, destination, mode of travel, and type and
quantity of luggage, etc.—are based on what is known as the
drug courier profile. In examining the proper weight that
those factors bear under Article I, section 9, the evolution of
federal case law regarding profiling facts provides a helpful
framing, and, importantly, a helpful constitutional contrast
430 State v. T. T.
for how Oregon’s approach has diverged from recent Fourth
Amendment cases.
In Reid v. Georgia, 448 US 438, 441, 100 S Ct 2752,
65 L Ed 2d 890 (1980), the Court considered whether infor-
mation consistent with a drug courier profile could suffice
to create reasonable suspicion for a stop. There, the defen-
dant, Reid, arrived in Atlanta, Georgia, on a commercial
flight originating in Fort Lauderdale, Florida. As passen-
gers exited the plane, they were observed by a DEA agent.
Not far from Reid in the line was another man carrying a
shoulder bag similar to Reid’s. As the passengers proceeded
through the concourse past the baggage claim area, Reid
occasionally glanced in the direction of the other man.
When the two men reached the main lobby of the terminal,
the second man caught up with Reid and they spoke briefly.
The two men then left the terminal together.
A DEA agent approached Reid and his companion
outside of the building, identified himself as a DEA agent,
and asked them to display their identification and ticket
stubs. Both men complied. The tickets, which had been pur-
chased with Reid’s credit card, revealed that both men had
stayed in Fort Lauderdale only one day. According to the
agent’s testimony, the men appeared nervous during this
encounter. The agent then asked the men if they would
agree to return to the terminal and to consent to a search
of their persons and their shoulder bags. The agent testi-
fied that Reid nodded his head affirmatively, and that the
other man responded, “yeah, okay.” As the three men reen-
tered the terminal, however, Reid began to run. Before he
was apprehended, he abandoned his shoulder bag. The bag,
when recovered, was found to contain cocaine.
The Court unanimously found the stop unconstitu-
tional:
“The appellate court’s conclusion in this case that the
DEA agent reasonably suspected the petitioner of wrong-
doing rested on the fact that the petitioner appeared to the
agent to fit the so-called ‘drug courier profile,’ a somewhat
informal compilation of characteristics believed to be typ-
ical of persons unlawfully carrying narcotics. Specifically,
the court thought it relevant that (1) the petitioner had
Cite as 308 Or App 408 (2021) 431
arrived from Fort Lauderdale, which the agent testified
is a principal place of origin of cocaine sold elsewhere in
the country, (2) the petitioner arrived in the early morning,
when law enforcement activity is diminished, (3) he and
his companion appeared to the agent to be trying to con-
ceal the fact that they were traveling together, and (4) they
apparently had no luggage other than their shoulder bags.
“We conclude that the agent could not as a matter of
law, have reasonably suspected the petitioner of criminal
activity on the basis of these observed circumstances. Of
the evidence relied on, only the fact that the petitioner pre-
ceded another person and occasionally looked backward
at him as they proceeded through the concourse relates to
their particular conduct. The other circumstances describe
a very large category of presumably innocent travelers,
who would be subject to virtually random seizures were the
Court to conclude that as little foundation as there was in
this case could justify a seizure.”
Reid, 448 US at 440-41.
In finding the stop unconstitutional, Reid supplied
the definition of “profile” information used by courts and
commentators to this day. Profile information is not focused
on a suspect’s conduct, but on the confluence of a series
of characteristics and circumstances believed common
to those engaged in criminal activity, but that could also
encompass innocent persons. See Florida v. Royer, 460 US
491, 494 n 2, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (“The
‘drug courier profile’ is an abstract of characteristics found
to be typical of persons transporting illegal drugs.”); Joseph
P. D’Ambrosio, The Drug Courier Profile and Airport Stops:
Reasonable Intrusions or Suspicionless Seizures?, 12 Nova
L Rev 273, 275 (1987) (noting that drug courier profiles are
informal compilations of characteristics thought common to
persons transporting narcotics).
Nine years later, the Court revisited the issue of
the drug courier profile. DEA agents stopped the defen-
dant, Sokolow, as he arrived at the Honolulu International
Airport, after the agents concluded that Sokolow’s behavior
“had all the classic aspects of a drug courier.” United States
v. Sokolow, 490 US 1, 109 S Ct 1581, 104 L Ed 2d 1 (1989).
As the Ninth Circuit described:
432 State v. T. T.
“The agents knew only the following facts matching their
‘drug courier profile’ when they first approached Sokolow:
(1) that Sokolow had just returned from a three-day trip to
Miami, a well-known source city for drugs; (2) that Sokolow
had paid for his tickets out of a large wad of $20 bills;
(3) that neither Sokolow nor Norian checked any luggage;
(4) that Sokolow changed planes en route to Hawaii; (5) that
Sokolow dressed in a black jumpsuit and wore a lot of gold
jewelry; and (6) that Sokolow had his voice on an answering
machine at a phone subscribed to by Karl Herman but told
the airline his name was Andrew Kray.”
United States v. Sokolow, 808 F2d 1366, 1370 (9th Cir 1987),
vac’d, 831 F2d 1413 (9th Cir 1987), rev’d, 490 US 1, 109 S Ct
1581, 104 L Ed 2d 1 (1989).
Applying Reid, the Ninth Circuit held that the stop
was unconstitutional because it was based on the profile fac-
tors that would apply to a large segment of innocent persons:
“The only remaining grounds for the seizure were that
Sokolow had taken only carry-on bags on a three-day trip
to Miami, changing planes on the way back and buying
his tickets in cash. These facts can be broken down into
two types: those that clearly ‘describe a very large cate-
gory of presumably innocent travelers’ and those that argu-
ably relate to the ‘particular conduct’ of the defendant. * * *
Under Reid, ‘the most general of [courier profile] charac-
teristics cannot support a Terry stop without more partic-
ularized evidence of suspicious activity.’ * * * We conclude
that arriving on a connecting flight from a three-day trip to
Miami with only carry-on luggage—facts (1), (3) & (4)—are
also the type of general characteristics shared by a large
category of innocent travelers that cannot support a Terry
stop absent particularized evidence of criminal activity.”
Sokolow, 808 F2d at 1371.
The Supreme Court disagreed, reversing course
from Reid and holding that profile information could estab-
lish reasonable suspicion such as to justify a stop under the
Fourth Amendment. Sokolow, 490 US at 9. The majority
held:
“Any one of these factors is not by itself proof of any
illegal conduct and is quite consistent with innocent travel.
Cite as 308 Or App 408 (2021) 433
But we think taken together they amount to reasonable
suspicion. * * *
“We do not agree with respondent that our analysis is
somehow changed by the agents’ belief that his behavior
was consistent with one of the DEA’s ‘drug courier profiles.’
* * * A court sitting to determine the existence of reason-
able suspicion must require the agent to articulate the fac-
tors leading to that conclusion, but the fact that these fac-
tors may be set forth in a ‘profile’ does not somehow detract
from their evidentiary significance as seen by a trained
agent.”
Sokolow, 490 US at 9-10.
Justice Marshall, joined by Justice Brennan, dis-
sented, viewing Sokolow as materially indistinguishable
from Reid:
“That the factors comprising the drug courier profile
relied on in this case are especially dubious indices of ongo-
ing criminal activity is underscored by Reid v. Georgia, * * *
a strikingly similar case. * * *
“[The Reid facts], we held, [were] inadequate to support
a finding of reasonable suspicion. All but the last of these
facts, we observed, ‘describe a very large category of pre-
sumably innocent travelers, who would be subject to vir-
tually random seizures were the Court to conclude that as
little foundation as there was in this case could justify a
seizure.’ * * *
“The facts known to the DEA agents at the time they
detained the traveler in this case are scarcely more sugges-
tive of ongoing criminal activity than those in Reid.”
Sokolow, 490 US at 14-15 (Marshall, J., dissenting).
The dissent warned against the risks of depart-
ing from Reid, concluding that profile justification for stops
risked citizens being “subjected to ‘overbearing or harass-
ing’ police conduct carried out solely on the basis of impre-
cise stereotypes of what criminals look like, or on the basis
of irrelevant personal characteristics such as race.” Id. at
13. The dissent pointed out that “[r]eflexive reliance on a
profile of drug courier characteristics runs a far greater risk
than does ordinary, case-by-case police work of subjecting
innocent individuals to unwarranted police harassment and
434 State v. T. T.
detention. This risk is enhanced by the profile’s ‘chameleon-
like way of adapting to any particular set of observations.’ ”
Id. at 13.
Turning back to the analysis required by Article I,
section 9, our state constitutional approach differs markedly
from Sokolow and the standard for reasonable suspicion
under the Fourth Amendment. We have held that, under our
state constitution, “[p]eople are entitled to be evaluated on
their individual behavior, not that of groups to which they
may belong.” State v. Baldwin, 76 Or App 723, 729, 712 P2d
120 (1985), rev den, 301 Or 193 (1986). In reaching that con-
clusion we cited, with approval, the reasoning of Reid. Id.;
see also State v. Martin, 260 Or App 461, 469, 317 P3d 408
(2014) (“The officer’s suspicion must be particularized to the
person and based on the person’s conduct.” (Citing Miglavs,
337 Or at 12.)); accord State v. Pichardo, 360 Or 754, 760,
388 P3d 320 (2017) (holding that, even when something less
than reasonable suspicion of criminal activity is required
to show that a request for consent to search is related to
the stop, “the state must be able to point to a ‘reasonable,
circumstance-specific’ relationship between the inquiry and
the purpose of the detention”).
We have discussed reasonable suspicion in the con-
text of drug corridors, and profiling-based stops, on multiple
occasions. In State v. Maciel, 254 Or App 530, 538-39, 295
P3d 145 (2013), the state proffered a series of drug corri-
dor factors to establish reasonable suspicion, three of which
(passage from California on I-5, lack of visible luggage, and
dishonest explanations about the circumstances) are identi-
cal to factors relied upon by the trooper in this case:
“Those ‘indicators,’ as [the officer] identified them, were
(1) the California license plates of the vehicle and its pas-
sage northbound on I-5 at 4:00 a.m., (2) the third-party reg-
istration of the vehicle, (3) the existence of identical prepaid
cellular phones in the vehicle, (4) the religious medallion
affixed to the rearview mirror of the vehicle, and (5) the
lack of visible luggage in the passenger compartment of the
vehicle. In addition, [the officer] noted that defendant had
immediately offered inconsistent explanations about the
ownership of the car.”
Cite as 308 Or App 408 (2021) 435
254 Or App at 538. We held that those factors did not create
reasonable suspicion of drug trafficking:
“[The officer’s] remaining ‘indicators’ each carry lit-
tle weight in establishing reasonable suspicion. As to the
first indicator, [he] did not explain the significance of the
vehicle’s California license plates or its presence on I-5—
aside from acknowledging that I-5 is a road regularly
used for narcotics trafficking—at the suppression hearing.
Similarly, with regard to the second indicator, [the officer]
testified that ‘often people engaging in criminal enter-
prises will use a third-party vehicle to help them distance
themselves from whatever contraband * * * may be in the
vehicle.’ Finally, with regard to the third indicator, [the
officer] testified that, based on his training and experience,
he knew that ‘often drug dealers [and] people engaging in
different criminal enterprises use those types of phone[s,]’
viz., prepaid cellular phones, because they are difficult to
trace. However, [the officer] acknowledged that he knew of
no restrictions on the purchase or use of prepaid cellular
phones and that they can be lawfully acquired with ease—
by criminals and noncriminals alike.
“To the extent that [the officer] associated those facts
with drug trafficking—or other, unspecified criminal con-
duct—they were insufficient to establish a reasonable sus-
picion of that criminal activity.”
254 Or App at 538-39.
More recently, in State v. Tapp, 284 Or App 583,
588-89, 393 P3d 262 (2017), we specifically addressed the
weight accorded to the location of a stop being a “drug corri-
dor.” At the time that the officer in Tapp extended the traffic
stop to investigate drug trafficking, he knew that the defen-
dant was driving on a suspended license on an interstate
highway in a messy car, with his mother driving behind
him; that defendant was nervous to talk to him; and that
defendant’s mother appeared to deliberately weave her car
when the officer first started following them, which might
have been an effort to alert the defendant to the police
presence—something that could have been “baiting activity”
to distract the officer from the defendant. We held that the
facts did not make it reasonable to assume that the conduct
436 State v. T. T.
was drug trafficking, despite occurring on a highway char-
acterized by the officer as a “drug trafficking corridor”:
“None of that information, without more, made it objectively
reasonable to think that defendant might have been traf-
ficking drugs (which could be why [the officer] kept clari-
fying that his suspicion was of ‘criminal activity,’ not drug
trafficking). Although [the officer] characterized Highway
20 as a ‘drug trafficking corridor,’ there is no indication
that that interstate highway has fallen so out of favor with
travelers not trafficking in drugs that it would be reason-
able to infer that a person is a drug trafficker simply from
his use of the highway.”
Id. at 588-89.
In light of our precedent, four of the factors iden-
tified by the trooper in this case are entitled to very little
weight, individually and in combination: his observation
that there was nothing in the passenger compartment of the
vehicle to suggest a long trip; that they made the trip down
and back on I-5; that they were traveling in a rental car;
and that their destination was northern California. Those
factors are unremarkable and sweep up an impermissibly
broad segment of the population to constitute the particu-
larized suspicion of a specific crime that is required under
Oregon law.4
The question is whether the additional facts known
to the trooper are enough to change the calculus. As noted ear-
lier, one of those factors—the smell of marijuana—generally
no longer has the significance it once had as a basis for rea-
sonable suspicion, in light of decriminalization. As the legal
status of cannabis in Oregon has changed, so too does the
4
Analogously, we have repeatedly held that observations of a suspect going
to, or coming from, a known drug house, or their presence in a high crime area
bear minimal weight in a reasonable suspicion analysis. See, e.g., State v. Westcott,
282 Or App 614, 619, 385 P3d 1268 (2016), rev den, 361 Or 486 (2017) (“Nor is it
particularly significant in the abstract that defendant had recently left a location
known for drug sales.”); State v. Barber, 279 Or App 84, 95, 379 P3d 651 (2016)
(“The fact that defendant and his companion were staying at the motel, which
Morrison knew to be a frequent site of drug activity, contributes only minimally
to our analysis.”); State v. Wiggins, 262 Or App 351, 361, 324 P3d 626 (2014)
(“As an initial matter, two of those circumstances—viz., defendant’s presence in a
‘high drug trafficking and use area of the city’ and her ‘admissions’ to prior drug
use months before the stop—carry minimal weight.”).
Cite as 308 Or App 408 (2021) 437
role that the odor of marijuana plays in the reasonable sus-
picion calculus. As the trooper testified in this case, a strong
odor can signal the presence of marijuana, but not neces-
sarily the presence in a quantity that is illegal for persons
21 and older to lawfully possess. For that reason, odor adds
only that much to the calculus—that some amount of mari-
juana may be present.
However, the statute for which the trooper had sub-
jective reasonable suspicion in this case—ORS 475B.227(2)—
is one of the only remaining statutes in Oregon, post-
decriminalization, that is not dependent on a specific quan-
tity of marijuana to establish unlawful activity. Thus, while
an odor of marijuana may say very little as to whether an
individual is engaged in the unlawful possession or delivery
of marijuana generally, odor carries at least some import
for evaluating reasonable suspicion of a violation of ORS
475B.227(2).
For purposes of reasonable suspicion of a violation
of ORS 475B.227(2), however, odor was not the only addi-
tional fact in this case. There was another set of circum-
stances known to the trooper: From the rental agreement,
it appeared that the car had been rented less than 24 hours
earlier at the Portland airport; that the vehicle’s occupants
had made a roundtrip to Redding, California—approximately
seven hours each direction—in the same day; and that the
driver had attempted to conceal how long they had been
in Redding. Although there was nothing illegal about that
travel pattern, it was an unusually quick roundtrip. And,
the driver’s story about when they had left Redding was not
simply implausible or suspicious; rather, it was an attempt
to conceal how unusual the travel pattern was. Cf. Maciel,
254 Or App at 541-42 (“no connection was offered between
defendant’s bizarre story and the crime of drug trafficking”).
This is a close case. However, we conclude that those
additional circumstances, in combination with the presence
of marijuana and what the trooper knew, from his training
and experience, about the use of rental cars to traffic drugs
along the I-5 corridor, were enough to give rise to a reason-
able inference that the vehicle was being used for drug traf-
ficking. And, under those circumstances, it was reasonable
438 State v. T. T.
for the trooper to suspect that all of the vehicle’s occupants
had made the trip down and back together and were involved
in the trafficking operation.
In sum, it is the unusual travel pattern and the
driver’s effort to conceal it that distinguishes this case from
others, like Maciel, in which the state failed to show any-
thing more than speculation based on “indicators” that were
broadly applicable to drug traffickers and innocent travelers
alike. When those facts are added to the mix, the trooper’s
suspicion crosses from purely speculative to reasonable. For
that reason, we conclude that the trooper’s drug investiga-
tion of the driver and youth was supported by reasonable
suspicion.
3. Probable cause
Youth also argues that, even if the questioning of
the driver and youth were lawful, the trooper lacked prob-
able cause to search the vehicle. He argues that the facts
just discussed, plus the smell of the air freshener or cologne
that wafted out of the car when the driver got out, were
not enough to meet that higher standard. But, as the state
points out, there was another fact known to the trooper by
the time he searched the vehicle (in addition to inconsistent
stories among the vehicle occupants about their trip): the
driver had admitted that he brought an ounce of marijuana
with him from California, which the trooper knew to be a
crime under ORS 475B.227(2). In light of the driver’s admis-
sion, the trooper had probable cause to search the vehicle for
evidence of that crime under the automobile exception to the
warrant requirement. State v. Bliss, 363 Or 426, 438, 423
P3d 53 (2018) (for that exception to apply, “(1) the car must
have been mobile at the time it was lawfully stopped by the
police; and (2) the police had probable cause to believe that
the car contained contraband or crime evidence at the time
of the search”).
B. Fourth Amendment
“Unlike our analysis of traffic stops under Article I,
section 9, under the Fourth Amendment, a police officer
‘effectively seizes everyone in the vehicle, the driver and
all passengers’ for the duration of a traffic stop.” State v.
Cite as 308 Or App 408 (2021) 439
Evans, 284 Or App 806, 814, 397 P3d 42 (2017) (quoting
Arizona v. Johnson, 555 US 323, 327, 129 S Ct 781, 172 L Ed
2d 694 (2009)). “Reasonable suspicion” under the Fourth
Amendment “entails a minimal level of objective justifica-
tion for making a stop.” State v. Wiseman, 245 Or App 136,
140, 261 P3d 76 (2011). An officer “must be able to point
to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant
that intrusion.” Terry v. Ohio, 392 US 1, 21, 88 S Ct 1868, 20
L Ed 2d 889 (1968); see also Sokolow, 490 US at 7.
In reviewing whether the officer had reasonable sus-
picion, the court looks at the totality of the circumstances,
giving due weight to the factual inferences drawn by the
officer and the trial court judge. United States v. Arvizu, 534
US 266, 277, 122 S Ct 744, 151 L Ed 2d 740 (2002). Even if
each fact standing alone might be consistent with innocent
activity, the factors can form reasonable suspicion when
viewed together. Sokolow, 490 US at 9.
As discussed above, the Fourth Amendment stan-
dard for reasonable suspicion of drug trafficking is, if any-
thing, less protective of youth’s rights than Article I, section 9.
308 Or App at 431-34 (contrasting the standard under
Sokolow). For the reasons set out in our analysis of reason-
able suspicion under Article I, section 9, we conclude that,
for purposes of the Fourth Amendment, the trooper lawfully
extended the traffic stop based on reasonable suspicion that
the vehicle was being used to import marijuana to Oregon.
We reach the same conclusion with respect to prob-
able cause that we reached under the state constitution. See
United States v. Ross, 456 US 798, 823, 102 S Ct 2157 (1982)(“[A]n individual’s expectation of privacy in a vehicle and
its contents may not survive if probable cause is given to
believe that the vehicle is transporting contraband.”).
III. CONCLUSION
In this case, the trooper formed a subjective rea-
sonable suspicion of a specific drug offense—the interstate
transport of marijuana, ORS 475B.227(2). Although that rea-
sonable suspicion was based, in part, on profiling informa-
tion that carries minimal weight in establishing reasonable
440 State v. T. T.
suspicion for purposes of the Oregon Constitution, it was
accompanied by other nonprofiling facts. The odor of mar-
ijuana, while contributing little to the reasonable suspi-
cion analysis for general crimes of possession or delivery
of marijuana, in the wake of Oregon’s decriminalization
of cannabis, is more probative in relation to the interstate
import and export statute, which is not limited by quantity.
Although close, those facts, in combination with the driver’s
attempt to conceal their travel pattern, established that the
trooper’s subjective reasonable suspicion of ORS 475B.227(2)
was objectively reasonable.
Affirmed.