Because possession of recreational marijuana is legal in Oregon, the smell alone is not reasonable suspicion. Here, however, there was reasonable suspicion based on additional facts of attempted concealment. State v. T.T. (In re T.T.), 308 Ore. App. 408 (Jan. 6, 2021):
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 federal law and state law diverge with respect to when a passenger is seized, which can, in turn, affect the point in time of the potential constitutional violation, and accordingly what universe of facts are considered in evaluating reasonable suspicion or probable cause, we address the state and federal constitutional issues separately.
. . .
Marijuana is now a legal substance for adults for both recreational and medicinal use in Oregon. For recreational 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 cardholder and designated primary caregiver may jointly possess up to 24 ounces of usable marijuana. ORS 475B.834(1). Additionally, a registry identification cardholder and the designated primary caregiver of the registry identification cardholder may jointly possess up to six mature marijuana plants and 12 or fewer immature marijuana plants. ORS 475B.831. Furthermore, a grower designated to produce 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, subject 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 cannabinoid concentrates. Id.
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.
. . .
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 testimony about the smell of marijuana. Previously, the question was binary, yes or no. If marijuana was present, it was unlawful, though the sanction varied from criminal to violation. The smell thus created a reasonable inference of contraband. 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 threshold is not simply unlawful activity sanctioned at a lower level, it is entirely lawful conduct.
. . .
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 anything 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 investigation of the driver and youth was supported by reasonable suspicion.