OR: With recreational MJ, the odor of MJ in a rental car is not RS for trafficking

In a recreational marijuana state, “We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.” State v. Bowen, 308 Or. App. 505 (Jan. 13, 2021):

As may be readily apparent, this case comes down to the marijuana odor that the trooper smelled upon approaching defendant’s car. The crux of the issue is whether the odor of marijuana tipped the facts here into the realm of reasonable suspicion. We conclude that it did not—at least on this record, where the evidence was sparse as to what the trooper actually smelled. Marijuana has been legal for recreational use under state law since 2015. Diesel v. Jackson County, 284 Or App 301, 302, 391 P3d 973 (2017) (summarizing changes in Oregon’s marijuana laws since 1998).

As recently discussed in T.T., our historic treatment of all marijuana odors as equal for purposes of reasonable suspicion was grounded in “the legal status of marijuana as contraband in any amount,” a premise that no longer applies, requiring us to adjust our analysis accordingly going forward. 308 Or App at 422 (emphasis in original). At the time of the stop here, an adult could legally possess up to eight ounces of usable marijuana, see former ORS 475.864(6)(b) (2015), and could legally deliver up to one ounce of home grown marijuana to another adult.

With that in mind, we note that, beyond the odor of marijuana being “obvious” when the trooper approached defendant’s car, there was no evidence as to how strong the odor was. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. There also was no evidence as to whether the odor was of fresh marijuana (as the trooper’s suspicion of delivery might suggest) or burnt marijuana (as his consideration whether defendant was impaired or intoxicated might suggest). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk.

Finally, there was no evidence that the trooper had training or experience that led him to recognize what he smelled as fresh marijuana in a larger quantity. Cf. T.T., 308 Or App at 426 (a trooper smelled a “pretty strong odor” of “green non-smoked marijuana,” which he recognized from his training and experience, in a case in which the defendant claimed to have had “an ounce” of fresh marijuana but actually had 39 pounds of fresh marijuana). We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana. The marijuana laws have changed since defendant was arrested, so there is little point in hypothesizing as to what would have been sufficient to give rise to reasonable suspicion in this case. It is possible that more detailed testimony from the trooper about what he smelled—beyond just an “obvious” odor of “marijuana”—might have tipped the scales, although it is impossible to know what the trooper might have said if questioned in more detail. Regardless, based on the record as it exists, the objective facts articulated by the trooper were insufficient to give rise to reasonable suspicion of unlawful delivery of marijuana. It follows that the trial court erred in denying defendant’s motion to suppress.