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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)