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.
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)