OR: State showed RS of MJ importation from California, not just from plain view or smell, sufficient to detain

Plain view or smell of a small quantity of marijuana in a car is not reasonable suspicion of “criminal” possession or importation. Here, the officer had reasonable suspicion that there was a significant quantity of fresh marijuana in the car. State v. Robinson, 310 Ore. App. 644, 2021 Ore. App. LEXIS 496 (Apr. 14, 2021):

Oregon’s marijuana laws have been in a state of flux. Our decisions involving marijuana have necessarily evolved with the changing law. Our analysis of the facts known to Peterson, an experienced law enforcement officer, and whether those facts combined to support reasonable suspicion of criminal marijuana import/export is best explained by reference to our recent cases concerning the same question. In T. T., we concluded that the state trooper had reasonable suspicion of a violation of the same statute at issue here, which, at the time, prohibited the “importation [and] exportation of any amount of marijuana.” 308 Ore. App. at 428, 437-38 (emphasis added). Much like this case, the trooper in T. T. stopped the defendant’s car on Interstate 5 for speeding. Id. at 411. After the car pulled over, the trooper walked over to the passenger side of the car and smelled a “strong odor of green, non-smoked marijuana.” Id. The driver stated that the car was a rental and that he and the passengers were coming from California where they had been for “a couple of days.” Id. The trooper checked the rental agreement for the car and learned that it had been rented “the day before [at] the Portland airport.” Id. At that point, the officer asked the driver to “step out of the car.” Id.

. . .

This case is more like T. T. than it is like Bowen. The facts, perceived and analyzed by a trained law enforcement officer, included more than just a vague reference to an odor of marijuana. In explaining why he had reasonable suspicion that defendant had, or was about to, import or export marijuana in criminal amounts, Peterson described each of the facts of which he was aware and how, given his law enforcement experience, they fit together. Peterson knew from his training that rental cars are commonly used to transport drugs originating in Northern California “hub[s]” across state lines. He considered that there was a long delay between the time that he activated his overhead lights on I-5 and the time that defendant eventually stopped at the Burger King; defendant did not have a driver’s license; defendant claimed that the car was a rental, but he could not produce a rental agreement; defendant provided him with a convoluted explanation for his trips back and forth between Washington and California; he could see what looked to be several ounces of marijuana in plain view in the car; and he smelled the “very strong” and “extremely strong” odor of marijuana coming from defendant’s car.

Peterson testified that his training and experience with drug interdiction work was extensive, including seizing hundreds of pounds of marijuana in the previous year. And he testified that, given the facts of which he was aware, he believed that the amount of marijuana in defendant’s car may have been “a criminal amount” from the standpoint of marijuana import/export. That was enough to establish that Peterson had reasonable suspicion that defendant was in violation of ORS 475B.227. Thus, under Article I, section 9, the extension of the traffic stop to ask questions about marijuana was lawful.

The extension of the traffic stop was also lawful under the Fourth Amendment. Absent reasonable suspicion, a traffic stop justified only by the observed traffic violation “become Es] unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez v. United States, 575 US 348, 350-51, 135 S Ct 1609, 191 L Ed 2d 492 (2015) (internal quotation marks omitted) (police may not extend an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct a “dog sniff”). When other factors combine, as they did here and as we have already discussed, to create reasonable suspicion of criminal activity, extension of the traffic stop under the Fourth Amendment is permitted.

We turn briefly to defendant’s argument that Peterson was not authorized to conduct a warrantless search of his car incident to his arrest. Defendant argues that, because Peterson did not have probable cause to arrest him for the crime of marijuana import/export, the warrantless search of his car was illegal. The state correctly argues that the search occurred prior to defendant’s arrest and that, in fact, the search was conducted on the basis of probable cause existing at the time of the search and the automobile exception to the warrant requirement. The trial court found that Peterson had searched defendant’s car pursuant to that exception and based upon probable cause of drug trafficking. The arrest came after Peterson found cocaine in the trunk, and we do not understand the state to rely on the arrest to support the warrantless search. Defendant does not renew his argument here regarding the lawfulness of the search on the basis of probable cause existing at the time of the search or the applicability of the automobile exception. Because that question is not before us, we do not address it.

We conclude that the trial court did not err when it denied defendant’s motion to suppress. Peterson had reasonable suspicion of the criminal import/export of marijuana based on the very strong smell of fresh marijuana in combination with all the other factors we have discussed. The extension of the traffic stop was lawful under both Article I, section 9, and the Fourth Amendment. And, finally, we reject defendant’s argument that the warrantless search of his car was unlawful as a search incident to arrest.

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