State v. T. T.

408

Argued and submitted June 18, 2020, affirmed January 6, petition for review

denied April 22, 2021 (368 Or 37)

In the Matter of T. T.,

a Youth.

STATE OF OREGON,

Respondent,

v.

T. T.,

Appellant.

Multnomah County Circuit Court

17JU09608;

Petition Number 171031313;

A168707

479 P3d 598

Youth was a backseat passenger in a car that was pulled over for speeding.

A state trooper smelled marijuana and investigated, and he eventually searched

the car and discovered large bags of marijuana in the trunk. Based on that evi-

dence and other admissions by youth, the juvenile court found youth to be within

its jurisdiction for acts that, if committed by an adult, would constitute unlawful

delivery of a marijuana item and unlawful possession of marijuana by a person

under the age of 21. On appeal, youth assigns error to the denial of his motion

to suppress, arguing that the trooper lacked reasonable suspicion to turn the

traffic stop into a drug investigation and, in any event, lacked probable cause

to search the vehicle. The primary issues on appeal are (1) whether the traffic

stop unlawfully turned into a drug investigation when the trooper asked where

they were coming from and how long they had been there; (2) if not, whether

the trooper, at a later point in the traffic stop, had reasonable suspicion to ask

the driver and youth to get out of the vehicle for a drug investigation; and (3) if

the traffic stop was lawfully converted into a drug investigation, whether the

trooper developed probable cause to search the car under the automobile excep-

tion to the warrant requirement. Held: Youth failed to preserve his argument

that the stop was illegal at the point of the trooper’s initial inquiry about their

travel, and the questions raised by youth in light of the Supreme Court’s decision

in State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019), are not obvious for

purposes of plain-error review. With regard to reasonable suspicion later in the

traffic stop, because it was lawful for persons 21 and over to possess some amount

of marijuana in Oregon at the time of the stop, the odor of usable marijuana in

the vehicle was unremarkable, and the fact that the marijuana was not on the

driver’s person did not make it objectively reasonable to believe that the underage

passengers were the ones in possession of it—let alone that the driver had deliv-

ered it to them unlawfully. But the trooper had reasonable suspicion of a different

crime. As to reasonable suspicion of drug trafficking, four of the facts identified

by the trooper were drug-courier profiling facts, which are accorded minimal

weight under the Oregon Constitution, unlike the role they play in a reasonable

suspicion analysis under the Fourth Amendment. However, here, those facts,

bolstered by the additional facts of the vehicle’s unusual travel pattern and the

Cite as 308 Or App 408 (2021) 409

driver’s effort to conceal that pattern, were enough to create reasonable suspicion

of drug trafficking. With additional information from questioning the driver and

passengers, the trooper had probable cause to search the car under the automo-

bile exception.

Affirmed.

Xiomara Y. Torres, Judge.

Christa Obold Eshleman argued the cause for appellant.

On the brief was Matthew J. Steven.

Timothy A. Sylwester, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

JAMES, J.

Affirmed.

410 State v. T. T.

JAMES, J.

Youth was a backseat passenger in a car that was

pulled over for speeding. A state trooper smelled marijuana

and investigated, and he eventually searched the car and

discovered large bags of marijuana in the trunk. Based on

that evidence and other admissions by youth, the juvenile

court found youth to be within its jurisdiction for acts that,

if committed by an adult, would constitute unlawful deliv-

ery of a marijuana item and unlawful possession of mari-

juana by a person under the age of 21.

On appeal, youth assigns error to the denial of his

motion to suppress, arguing that the trooper lacked reason-

able suspicion to turn the traffic stop into a drug investiga-

tion and, in any event, lacked probable cause to search the

vehicle. The primary issues before us end up being three-

fold: (1) Did the traffic stop unlawfully turn into a drug

investigation when the trooper asked where they were com-

ing from and how long they had been there? (2) If not, did

the trooper, at a later point in the traffic stop, have reason-

able suspicion to ask the driver and youth to get out of the

vehicle for a drug investigation? And (3), if the traffic stop

was lawfully converted into a drug investigation, did the

trooper develop probable cause to search the car under the

automobile exception to the warrant requirement? As dis-

cussed below, we conclude that youth failed to preserve his

argument that the stop was illegal at the point of the troop-

er’s initial inquiry about their travel; that the trooper asked

the driver and youth to get out of the car after developing

reasonable suspicion that the car and its occupants were

involved in importing marijuana from California; and that,

with additional information from questioning the driver

and passenger, the trooper had probable cause to search

the car.

I. BACKGROUND

In reviewing the denial of a motion to suppress evi-

dence, we are bound by the juvenile court’s factual findings

to the extent that those findings are supported by evidence

in the record. State v. Arreola-Botello, 365 Or 695, 697, 451

P3d 939 (2019). In this case, the juvenile court made express

Cite as 308 Or App 408 (2021) 411

findings of fact, which youth does not challenge on appeal.

Those facts are as follows: 1

“Youth was a passenger in the vehicle that was lawfully

stopped for speeding on Interstate 5 [on October 31, 2017].

It was stopped going about 80 miles an hour in a 60 miles

an hour zone * * *. The vehicle was northbound, was trav-

eling northbound near mile post 254. Trooper Smith from

the Oregon State Police testified he observed three males

in the vehicle. Two in the front seat, one in the back seat.

“The passenger in the front and the passenger in the

rear appeared to be to the trooper under the age of 18.

As Trooper Smith * * * walked over around to the front-

passenger window—[it] may have been the rear-passenger

window, but to the passenger window, he smelled the strong

odor of green, non-smoked marijuana. He did not see mari-

juana in the car.

“Trooper Smith has been employed with the Oregon

State Police for three and a half years. He testified that due

to his training and experience, he is familiar with the smell

of both burnt marijuana and the smell of dry green mar-

ijuana. He testified there is a marked difference between

[the] two.

“He did ask the driver, who was an adult, for his license,

registration, and proof of insurance. [The driver told

Trooper Smith that the vehicle was a rental car and that

he had to grab the rental agreement]. While the driver was

looking for [the requested documents, Trooper Smith asked

the driver where they were coming from and how long they

had been there. The driver] told Trooper Smith they were

coming from Redding, California and that they had been

there a couple of days.

“When Trooper Smith saw the rental agreement, he

noticed that the vehicle had just been rented on the 29[th],

the day before [at] the Portland airport.

“Based on his training and experience, Trooper Smith

testified that it’s common to use rental cars to traffic

[drugs]. Trooper Smith asked the driver, the adult, who

was age 25 to step out of the car. As he exited, he noticed

1

Here, and later in our discussion, we have supplemented the juvenile

court’s express findings to give them further context. In doing so, we presume

that the juvenile court resolved any factual disputes in a manner consistent with

its ultimate conclusion. See Arreola-Botello, 365 Or at 697.

412 State v. T. T.

the smell of air freshener coming from the vehicle, and as

he walked to the back of the vehicle with the driver, he

could not smell marijuana on the driver.

“He was [suspicious that] the adult driver was furnish-

ing marijuana to the juvenile passengers. He asked the

driver to clarify his questions about the trip to California.

The driver’s answers were vague. Trooper Smith did

request a cover call. He asked to speak to the youth outside,

the youth outside the car so he can talk to him[, and youth

got out of the vehicle]. * * *.

“Trooper Smith asked the youth questions about the

trip. The youth gave a different story than the driver. The

passenger in the front seat gave a third version of the story.

“The driver was asked why the stories were so different.

He then admitted that he had received an ounce of mari-

juana in the State of California.

“Trooper Smith searched the vehicle, located luggage

bags in the trunk, three large bags which contained a large

amount of marijuana which turned out to be approximately

39 pounds. A pistol was found under [the] marijuana.

“In the center console Trooper Smith found a small

bag of marijuana. All three occupants of the vehicle were

placed under arrest. Trooper Smith found $1,705 in cash in

the youth’s possession.”

Based on those events, the state petitioned the juve-

nile court to find youth within its jurisdiction for acts that, if

committed by an adult, would violate ORS 475.346 (unlaw-

ful delivery of a marijuana item) and ORS 475.341 (unlaw-

ful possession of marijuana by a person under the age of 21).

Youth then moved to suppress the state’s evidence, arguing

that the trooper’s investigation of drug crimes and search of

the vehicle violated his rights under Article I, section 9, and

the Fourth Amendment. He argued that, rather than citing

the driver “for speeding and letting the vehicle go, Trooper

Smith ordered [the driver] out of the vehicle and made unre-

lated inquiries about drugs, having no reasonable suspicion

or probable cause to do so, given that marijuana is legal to

possess for [the driver], a 25-year-old.” And, following that

illegality as to the driver, the trooper ordered youth out of

the car and unlawfully questioned him about their travels.

Cite as 308 Or App 408 (2021) 413

With regard to the search of the trunk, youth argued that,

“[g]iven that marijuana is legal for adults 21 years of age

and older, odor of marijuana alone is no longer enough to

establish probable cause of criminal activity.” Thus, youth

sought to suppress “all evidence gained from the illegal

search, including the marijuana and firearm found in the

center console and trunk of the vehicle, as all evidence was

obtained in violation of Article I, section 9 of the Oregon

Constitution, and the Fourth and Fourteenth Amendments

to the United States Constitution.”

The state contended that, regardless of whether

adults can possess marijuana, it remains illegal to furnish

it to minors, which is what the trooper reasonably suspected

was happening at the point that the traffic stop turned into

a drug investigation. And, the state argued, once the driver

stepped out of the vehicle and did not smell of marijuana,

the trooper had probable cause to believe that there was

marijuana “in the vehicle and therefore in the possession

of the juveniles.” The state further argued that the trooper

had reasonable suspicion that the driver was trafficking

drugs and that the driver’s eventual admission that he had

imported marijuana from California into Oregon supplied

probable cause to believe that the driver was violating ORS

475B.227 (2017), amended by Or Laws 2018, ch 103, § 21

(importing and exporting marijuana), thereby providing an

independent basis for searching the vehicle.

The juvenile court denied youth’s motion. It stated

that youth was stopped at the moment that he was told to

leave the car but concluded that “the stop of the youth was

supported by reasonable suspicion of criminal activity, i.e.,

the possession of marijuana.” The court further ruled that

the search of the trunk fell within the automobile excep-

tion to the warrant requirement, because “Trooper Smith

had probable cause to believe that the vehicle contained con-

traband, a large amount of marijuana based on the smell.”

After the court denied the motion, youth admitted to addi-

tional factual allegations, conditioned on his right to appeal

the suppression ruling. Based on the evidence discovered

during the stop and youth’s admissions, the court found

youth within its jurisdiction.

414 State v. T. T.

Youth appealed that judgment, assigning error to

the denial of his suppression motion. In his opening brief,

youth argued that the trooper “immediately expanded the

investigation beyond the traffic stop to ask about the pur-

pose of the trip,” which violated Article I, section 9, because

there was no objectively reasonable belief that a crime was

being committed at that point. Youth also argued, as he had

below, that the trooper’s belief that youth—as opposed to the

driver—was in possession of the marijuana was not objec-

tively reasonable. Additionally, youth argues that the prob-

able cause standard was not met by the facts known to the

trooper—namely, a strong odor of green marijuana in a car

driven by an adult, a car rental receipt that suggests that

the driver was in California for less time than he reported,

inconsistent stories among the car’s occupants, the vehicle’s

direction of travel, and an odor of air freshener or cologne.

The state responded that the stop was lawful under

the state and federal constitutions at each point in time: the

initial traffic stop was lawful, based on the trooper having

observed the driver speeding; the driver, “during a lull while

he was searching for registration and proof of insurance,”

told the trooper that they had driven down to Redding,

California, had stayed there for a couple of days, which

turned out to be inconsistent with the rental agreement for

the vehicle; that information, plus the strong odor of green

marijuana, gave the trooper reasonable suspicion to extend

the stop of the driver and to question youth; and, with addi-

tional information obtained from youth and the driver,

including inconsistencies in their stories and an admission

from the driver that he had brought an ounce of marijuana

from California, the trooper had probable cause to search

the vehicle.

After the parties briefed the case, the Supreme

Court decided Arreola-Botello, holding that, under Article I,

section 9, “all investigative activities, including investiga-

tive inquiries, conducted during a traffic stop are part of

an ongoing seizure and are subject to both subject-matter

and durational limitations,” such that “an officer is limited

to investigatory inquiries that are reasonably related to

the purpose of the traffic stop or that have an independent

Cite as 308 Or App 408 (2021) 415

constitutional justification.” 365 Or at 712. Following that

decision, youth filed a memorandum of additional authori-

ties, asserting that “Arreola-Botello supports youth’s argu-

ment that the officer violated Article I, section 9, of the

Oregon Constitution by expanding the investigation beyond

the traffic stop to ask about the purpose of the trip,” and

that it “likewise negates the State’s argument that the offi-

cer was justified in asking these questions due to a ‘lull’

while the driver was looking for his documents.”

II. ANALYSIS

In both the juvenile court and this court, the par-

ties have not always carefully delineated between Article I,

section 9 and the Fourth Amendment, or between the legal

significance of the stop of the driver and the stop of youth.

But, as we have noted,

“in Oregon, a passenger in a vehicle that is stopped by

police is Schrödinger’s passenger—he exists in two poten-

tial states, both seized and not seized, and only one of

those potential states becomes reality depending on the

lens through which we observe him. Viewing the encounter

through the lens of Article I, section 9, the passenger is not

seized when the vehicle is stopped. * * * In contrast, viewing

the encounter through the lens of the Fourth Amendment,

‘a police officer effectively seizes “everyone in the vehicle,”

the driver and all passengers’ for the duration of a traffic

stop. State v. Bailey, 356 Or 486, 507, 338 P3d 702 (2014)

([quoting] Arizona v. Johnson, 555 US 323, 327, 129 S Ct

781, 172 L Ed 2d 694 (2009); Brendlin v. California, 551 US

249, 255, 127 S Ct 2400, 168 L Ed 2d 132 (2007)).”

State v. Kamph, 297 Or App 687, 691-92, 442 P3d 1129 (2019)

(some internal quotation marks omitted).

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 fed-

eral law and state law diverge with respect to when a pas-

senger is seized, which can, in turn, affect the point in time

of the potential constitutional violation, and accordingly

416 State v. T. T.

what universe of facts are considered in evaluating reason-

able suspicion or probable cause, we address the state and

federal constitutional issues separately.

A. Article I, Section 9

Article I, section 9, of the Oregon Constitution

provides:

“No law shall violate the right of the people to be secure

in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure; and no warrant shall issue but

upon probable cause, supported by oath, or affirmation,

and particularly describing the place to be searched, and

the person or thing to be seized.”

Under our well established “first things first”

approach, any discussion of a potential federal constitu-

tional violation is premature until we determine “whether

the state’s law * * * has deprived defendants of the rights

they seek to vindicate under the United States Constitution.”

State v. Babson, 249 Or App 278, 307, 279 P3d 222 (2012),

aff’d, 355 Or 383, 326 P3d 559 (2014). Accordingly, we

begin with assessing the stop in this case under Article I,

section 9 because “the state does not deny any right claimed

under the federal Constitution when the claim before the

court in fact is fully met by state law.” Sterling v. Cupp, 290

Or 611, 614, 625 P2d 123 (1981).

1. Were the driver and youth seized for a drug investiga-

tion before being asked to get out of the vehicle?

We begin with a brief overview of the principles that

apply to traffic stops under Article I, section 9, which estab-

lishes “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search,

or seizure.” Under that provision, a seizure occurs when

(1) a police officer intentionally and significantly interferes

with an individual’s liberty or freedom of movement; or (2) a

reasonable person, under the totality of the circumstances,

would believe that his or her liberty or freedom of movement

has been significantly restricted. State v. Ashbaugh, 349 Or

297, 316, 244 P3d 360 (2010).

A motorist can be stopped based on probable cause

of a traffic infraction, ORS 810.410, and “that stop implicates

Cite as 308 Or App 408 (2021) 417

Article I, section 9, because[,] ‘in contrast to a person on

the street, * * * the reality is that a motorist stopped for a

traffic infraction is legally obligated to stop at an officer’s

direction * * * and to interact with the officer, * * * and there-

fore is not free unilaterally to end the encounter and leave

whenever he or she chooses.’ ” Arreola-Botello, 365 Or at 701

(quoting State v. Rodgers/Kirkeby, 347 Or 610, 622-23, 227

P3d 695 (2010)). All investigative activities during a traffic

stop are part of an ongoing seizure of the driver and are

subject to durational and subject-matter limitations—that

is, “all such activities including inquiries, must be reason-

ably related to the purpose of the traffic stop or supported

by an independent constitutional justification.” State v.

Sheriff, 303 Or App 638, 647, 465 P3d 288 (2020) (citing

Arreola-Botello, 365 Or at 712-13, and State v. Watson, 353

Or 768, 778-82, 305 P3d 94 (2013)). In other words, a traf-

fic stop is a traffic stop, not an opportunity for a fishing

expedition:

“If, after stopping an individual based on probable cause

that the individual committed a traffic offense, an officer

may inquire into criminal activity without reasonable

suspicion of a specific crime, an officer will have less of

an incentive to develop the requisite reasonable suspicion

of that crime which ordinarily would be required to stop

the individual for a temporary criminal investigation. By

applying subject-matter limitations to investigative activ-

ities and questioning, Article I, section 9, ensures that

officers do not turn minor traffic violations into criminal

investigations without a constitutional basis for doing so.”

Arreola-Botello, 365 Or at 713.

The stop of a driver does not, in and of itself, result

in a seizure of all passengers under Oregon’s constitution.

State v. Stevens, 364 Or 91, 100, 430 P3d 1059 (2018). In

Stevens, the court reaffirmed that “a reasonable suspicion

that a driver has committed a traffic or other offense does

not justify a categorical limitation on the passenger’s free-

dom and that an officer may not seize a passenger without

a constitutional justification for doing so.” Id. By implica-

tion, “the passengers in a car stopped for a traffic or crimi-

nal offense would not understand that the officer’s show of

authority in stopping the driver extended to them.” Id.

418 State v. T. T.

Therefore, for a passenger to be stopped, there must

be something more than the bare fact that the driver was

pulled over for a traffic violation. The circumstances must

be such that passengers, under the totality of the circum-

stances, would understand that the officer’s show of author-

ity in stopping the driver extended to them or that the offi-

cer was independently restricting their movement apart

from the stop of the driver. Id. (citing State v. Backstrand,

354 Or 392, 401, 313 P3d 1084 (2013) (“What is required is a

reasonable perception that an officer is exercising his or her

official authority to restrain.”)).

Youth’s arguments before the juvenile court under

Article I, section 9, were premised on the view that the driver

and youth had been seized unlawfully at the moment that

they were asked to get out of the car for questioning. For

example, he explained, “Now, after [the driver] is pulled out

of the vehicle, then [youth] is pulled out of the vehicle. And

under both Article I, section 9, of the Oregon Constitution and

the Fourth Amendment to the United States Constitution,

that action is significant because it restricts his freedom of

movement, restricts his liberty.”

On appeal, and particularly during oral argument,

when he had the benefit of Arreola-Botello, youth took a dif-

ferent position, contending that the lawful traffic stop turned

into an unlawful drug investigation even earlier—prior to

the trooper asking them to exit the car—when the trooper

asked the driver where they were coming from and how

long they had been there. He now argues that the trooper’s

questions to the driver effectuated a stop of the passengers

as well, because the inquiry was directed at the activities

of all occupants in the vehicle, not just the driver; the stop

occurred at night and on the highway; and the passen-

gers were juveniles who were dependent on the driver and

could not simply walk away. Under the totality of the cir-

cumstances, youth argues, he was not free to leave once the

trooper signaled that the investigation went beyond a traffic

stop by exceeding the subject-matter limitations recognized

in Arreola-Botello.

The state responds that youth did not preserve that

contention before the juvenile court, and we agree. Nothing

Cite as 308 Or App 408 (2021) 419

in youth’s written motion or arguments at the suppression

hearing put the state or the juvenile court on notice of an

argument that the trooper’s questions to the driver about

where they were coming from had transformed the stop of

the driver into a stop of the passengers, alone or in combi-

nation with any of the other attendant circumstances (that

the passengers were juveniles in a car pulled over on the

freeway at night). See State v. Hallam, 307 Or App 796, 803,

479 P3d 545 (2020) (concluding that the appellant had not

preserved a challenge based on the reasoning in Arreola-

Botello where the written motion and arguments at the sup-

pression hearing “understandably, tracked the law in effect

at the time”). Once again, youth’s argument below was that

an otherwise lawful traffic stop turned into an unlawful

drug investigation when the trooper asked the driver and

then youth to get out of the vehicle for questioning.

Youth’s unpreserved contentions involve important

and novel issues about what questions exceed the subject

limits on a traffic stop. Whether Schrödinger’s passenger

continues to exist under the Oregon Constitution in the wake

of Arreola-Botello, and even if so, whether previous cases

holding that an adult passenger isn’t stopped for purposes

of Article I, section 9 extend to a juvenile passenger in a car

driven by an adult, are complex questions. The answers to

those questions are not obvious and beyond reasonable dis-

pute on this record, and we will not review them as plain

error. Cf. Hallam, 307 Or App at 805 (reversing, notwith-

standing the lack of a request for plain-error review, where

the state “essentially concede[d]” that the trial court plainly

erred in light of Arreola-Botello). We therefore turn instead

to the question presented to the juvenile court: whether the

facts, as known to the trooper when he asked the driver and

youth to get out of the car, gave rise to reasonable suspicion.

2. Was the drug investigation supported by reasonable

suspicion?

“[T]he established standard for reasonable suspi-

cion supporting an investigatory stop of a defendant is met

when an officer can point to specific and articulable facts

that give rise to a reasonable inference that the defendant

committed or was about to commit a specific crime or type

420 State v. T. T.

of crime.” State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d

1121 (2017). The officer must have a subjective belief that the

person stopped has committed, or is about to commit, the

specific crime or type of crime, and that belief must be objec-

tively reasonable under the totality of the circumstances.

State v. Kreis, 365 Or 659, 665, 451 P3d 954, 960 (2019); see

also Maciel-Figueroa, 361 Or at 181 (“[T]his court has never

concluded that an officer had reasonable suspicion to stop an

individual based on nonspecific ‘criminal activity.’ ”).

As the Oregon Supreme Court made clear in Maciel-

Figueroa,

“[a] specific type of crime, for example, can be criminal mis-

chief, assault, theft, or kidnapping, with the differences in

the degrees of the crimes being immaterial to whether the

officers have reasonable suspicion. Another set of examples

of a specific type of crime is the possession or the deliv-

ery of a controlled substance. In those cases, the difference

between whether the substance is cocaine rather than

methamphetamine is also immaterial to the analysis of

reasonable suspicion.”

361 Or at 180.

Under Maciel-Figueroa, when considering the ques-

tion of reasonable suspicion, we must ask reasonable sus-

picion of what? The Oregon Constitution demands a level

of particularity to the subjective reasonable suspicion pos-

sessed by an officer. It is insufficient for an officer to have

reasonable suspicion of a “crime,” or “criminal conduct”

broadly. Likewise, it is insufficient for an officer to have

reasonable suspicion of “drugs,” or “narcotics crimes” gen-

erally. The range of the criminal code dealing with narcot-

ics is broad, encompassing many different types of activity.

Just as there is a difference between “criminal mischief,

assault, theft, or kidnapping,” Id., so too, there is a differ-

ence between possession, delivery, manufacture, or inter-

state transport. Reasonable suspicion of one does not create

blanket suspicion for them all.

Although requiring less than probable cause, rea-

sonable suspicion must be based on more than mere spec-

ulation. See State v. Holdorf, 355 Or 812, 822-23, 333 P3d

982 (2014) (articulating standard). That is, the state “need

Cite as 308 Or App 408 (2021) 421

not prove that the articulated facts give rise to a conclu-

sion with certainty that a crime has occurred or is about to

occur,” but, “based on the specific facts known and articu-

lated by the officer, a reviewing court must conclude that the

officer’s subjective belief could be true, as a matter of logic.”

Maciel-Figueroa, 361 Or at 184 (emphasis omitted).

An officer’s suspicion of the specific crime or type

of crime cannot be based on a hunch but must be particu-

larized to the individual based on the individual’s own con-

duct. Kreis, 365 Or at 665 (citing State v. Miglavs, 337 Or 1,

12-13, 90 P3d 607 (2004)). The standard incorporates “a

proper regard for the experience that police officers bring

with them when they encounter criminal suspects,” Holdorf,

355 Or at 827-28, but the officer must be able to point to

observable facts like “distinctive behavior” associated with

unlawful activity that permits the officer “to make a rea-

sonable inference based on the officer’s pertinent training

and experience” that the specific crime or type of crime is

afoot. State v. Walker, 277 Or App 397, 402, 372 P3d 540,

rev den, 360 Or 423 (2016) (internal quotation marks omit-

ted); State v. Aguilar, 307 Or App 457, 469-70, 478 P3d 558

(2020) (“training and experience is not, in and of itself, a spe-

cific and articulable fact” that can provide sufficient proof of

reasonable suspicion (internal quotation marks omitted)). In

other words, as a practical matter, “the distinction between

an officer’s improper reliance solely on intuition and the offi-

cer’s permissible reliance on reasonable suspicion of crimi-

nal activity reduces largely to the officer’s ability to identify

and describe the observable facts that lead the officer—in

light of the officer’s training and experience—to suspect

that a person has committed, is committing, or is about to

commit a crime.” Walker, 277 Or App at 402.

Importantly, “[a] court’s review of a stop is based on

the record made concerning the officer’s actual belief that

the defendant may have committed a crime, and the basis

for that belief—the specific facts, articulated by the officer,

that led him or her to believe that the defendant may have

committed a crime, which we then review as a matter of law

for objective reasonableness.” Maciel-Figueroa, 361 Or at

183 (internal citation omitted). We therefore begin by exam-

ining what the trooper identified as his subjective belief of

422 State v. T. T.

a specific crime—in this case, two crimes. At the suppres-

sion hearing, the trooper testified that, by the time that he

asked the driver and then youth to get out of the car, he

was conducting two different criminal investigations: “The

first would be possession of marijuana by minors,” and “the

second would be import of marijuana from California to

Oregon.” Although we understand the juvenile court to have

relied on the former to conclude that “the stop of the youth

was supported by reasonable suspicion of criminal activity,

i.e., the possession of marijuana,” we conclude that only the

latter provided a lawful basis on which to seize youth and

the driver as part of a drug investigation.2

a. Evidence of the odor of marijuana generally

Previously, we have rejected arguments that non-

qualified testimony about the smell of marijuana would fail

to establish reasonable suspicion. However, our reasoning

was dependent upon the legal status of marijuana as contra-

band in any amount:

“Defendant does not argue that marijuana becomes

contraband only in quantities of more than an ounce, and

we know of no authority for that proposition. Indeed, both

the legal and common definitions of ‘contraband’ indicate

that the term encompasses anything that the law prohib-

its possessing. Black’s Law Dictionary defines ‘contraband’

as ‘[g]oods that are unlawful to import, export, produce, or

possess.’ Id. at 365 (9th ed 2009); see also Webster’s Third

New Int’l Dictionary 494 (unabridged ed 2002) (‘goods or

merchandise the importation, exportation, or sometimes

possession of which is forbidden’). Marijuana falls within

these definitions regardless of its quantity.”

State v. Smalley, 233 Or App 263, 271, 225 P3d 844, rev den,

348 Or 415 (2010). With the changes to the legal status of

2

We note that the state spends little time on appeal defending “possession by

youth” as the basis for turning the traffic stop into a drug investigation. Instead,

the state casts “possession” as part of the importation issue, arguing that “youth

and the other juvenile, who were traveling with [the driver], appeared to be com-

plicit in that crime [of importation], which also would constitute unlawful posses-

sion of marijuana by those two.” It is unclear from its ruling whether the juvenile

court applied that logic or evaluated possession separately. However, because

the trooper’s subjective suspicion regarding possession by youth appears to have

been distinct from whether they were involved in the crime of importing mari-

juana from California, we discuss them separately.

Cite as 308 Or App 408 (2021) 423

marijuana in Oregon, the applicability of our reasoning in

Smalley has narrowed to the few remaining circumstances

where quantity does not matter in defining illegal activity.

This case presents a circumstance where quantity does mat-

ter, a circumstance that Smalley anticipated might arise in

the future but did not address.

Marijuana is now a legal substance for adults for

both recreational and medicinal use in Oregon. For recre-

ational 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 card-

holder and designated primary caregiver may jointly pos-

sess up to 24 ounces of usable marijuana. ORS 475B.834(1).

Additionally, a registry identification cardholder and the

designated primary caregiver of the registry identifica-

tion cardholder may jointly possess up to six mature mar-

ijuana plants and 12 or fewer immature marijuana plants.

ORS 475B.831. Furthermore, a grower designated to pro-

duce 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, sub-

ject 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 can-

nabinoid concentrates. Id.

424 State v. T. T.

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.

Vermont concluded that the weight of testimony

about a smell of marijuana is strongly tied to testimony

qualifying that smell.

“The weight of that factor in determining whether probable

cause exists generally depends not only upon the nature and

strength of the odor and other factors accompanying the

odor, but also how those factors relate to the offense being

investigated. While adjectives assessing the strength of an

odor may be subjective and unhelpful at times in assess-

ing whether probable cause exists, see Commonwealth v.

Overmyer, 469 Mass 16, 11 NE3d 1054, 1059 (2014) (stat-

ing that ‘characterizations of odors as strong or weak are

inherently subjective’), the faint smell of burnt marijuana

is far less probative as to whether a car contains marijuana

than, say, an overpowering odor of fresh marijuana ema-

nating from the trunk of a car.”

Zullo v. State, 209 Vt 298, 348-49, 205 A3d 466, 502 (2019).

Similarly, Colorado approached the question in the

context of dog sniffs. There, the court concluded:

“Has the passage of Amendment 64 altered this settled

terrain? We began to explore this question in our recent

decisions in People v. Zuniga, 2016 CO 52, 372 P3d 1052,

and People v. Cox, 2017 CO 8, 401 P3d 509. In both Zuniga

and Cox, we found probable cause supporting an automo-

bile search based on a confluence of factors, including the

positive alert of a drug-detection dog that was trained to

alert to marijuana. Yet, in Zuniga, we concluded that the

alert was legally ambiguous because a drug-detection dog

can’t distinguish legal marijuana from illegal marijuana,

or legal marijuana from illegal narcotics. * * * Despite this

ambiguity, we held that the alert was still relevant to the

overall probable cause analysis. Id. Likewise in Cox, we

concluded that the positive alert of a drug-detection dog

was one factor, among many, supporting a finding of proba-

ble cause to search a stopped vehicle.

Cite as 308 Or App 408 (2021) 425

“In both Zuniga and Cox, we declined to address

(1) whether the sniff of a dog trained to detect marijuana

was a search, and (2) whether a positive alert from a dog

trained to detect marijuana alone could establish proba-

ble cause. Significantly however, these two recent decisions

suggest the answer to the latter question is no. We acknowl-

edged that, with the legalization of small amounts of mar-

ijuana, a dog’s alert doesn’t provide a yes-or-no answer to

the question of whether illegal narcotics are present in a

vehicle. At most, the alert could be ‘suggestive of criminal-

ity,’ but not determinative on its own.”

People v. McKnight, 2019 CO 36, ¶¶ 35-36, 446 P3d 397, 405-

06 (Colo 2019).

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 tes-

timony about the smell of marijuana. Previously, the ques-

tion was binary, yes or no. If marijuana was present, it was

unlawful, though the sanction varied from criminal to vio-

lation. The smell thus created a reasonable inference of con-

traband. 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 thresh-

old is not simply unlawful activity sanctioned at a lower

level, it is entirely lawful conduct.

b. Furnishing marijuana to or possession of mari-

juana by juveniles

For juveniles, however, marijuana is still unlawful

in any amount. At the relevant time in October 2017, ORS

475B.337(1) applied to unlawful possession of marijuana by

persons 21 and older, and it made it unlawful to possess,

knowingly or intentionally, “[m]ore than one ounce of usable

marijuana in a public place” or “[m]ore than eight ounces of

usable marijuana.” However, chapter 475B made it unlawful

for anyone under 21 to possess any amount of marijuana,

see ORS 475B.316 (making it a violation for person under 21

426 State v. T. T.

years of age (except for licensees or licensee representatives)

to possess, attempt to purchase, or purchase a marijuana

item),3 and made it unlawful to deliver any amount of mar-

ijuana to a person under 21, see ORS 475B.346 (making it

unlawful for any person to deliver a marijuana item, subject

to exceptions in ORS 475B.301, which do not apply to per-

sons under 21).

Accordingly, smell may be more probative of reason-

able suspicion in that context. In this case, the trooper testi-

fied that, when he first approached the vehicle, he observed

that the front seat passenger and rear driver side passenger

were “definitely under 21,” and that, when the front passen-

ger window was rolled down, the trooper “was able to smell

the—a pretty strong odor of marijuana” and tell “that would

be the green non-smoked marijuana coming from the vehi-

cle.” He also “noted that there was no other luggage except

for the backpack on the rear passenger side of the vehicle.”

The trooper acknowledged that he was not able to

“tell exactly how much [marijuana was present] by odor

alone,” and that a strong odor “typically means that there’s

a larger quantity than a user amount”—what the trooper

described as “[a] couple of grams, like what would fill up a

joint, like an eighth of an ounce.” The trooper testified that,

based on those facts, he immediately “began to think that

since [the passengers] are under 21 years of age they are not

allowed to possess marijuana in any form.”

The trooper, however, did not identify anything spe-

cific about the passengers that would make it reasonable

to believe that the smell was coming from marijuana that

belonged to them as opposed to the adult driver. In fact, the

trooper testified that, at that point, he didn’t “have infor-

mation really to determine whose it is either way.” We have

explained that, “although an officer is not required to rule

out all innocent explanations for a person’s conduct before

stopping the person, * * * [t]he fact that the person’s conduct

is consistent with criminal activity is not necessarily enough

3

ORS 475B.341(1) applied to persons under 21 and elevated the violation to

a misdemeanor if the person possessed, knowingly or intentionally, “[m]ore than

one ounce of usable marijuana in a public place” or “[m]ore than eight ounces of

usable marijuana,” and to a felony for certain greater amounts, ORS 475.341(3).

Cite as 308 Or App 408 (2021) 427

to give rise to reasonable suspicion.” State v. Martin, 260 Or

App 461, 476, 317 P3d 408 (2014). Where behavior “is consis-

tent with criminal activity, but is not too remarkable, it will

not support a stop.” Id. (internal quotation marks omitted).

Had all of the vehicle occupants been under the age

of 21, the smell of marijuana would take on different signif-

icance. But, given the legality of an adult possessing some

amount of marijuana in Oregon, the smell of marijuana in

a car in which an adult is present is no longer remarkable,

and, by itself, does not give rise to reasonable suspicion that

it is being unlawfully possessed by or delivered to an under-

age passenger. An officer could not reasonably conclude from

the smell of fresh tobacco in a car—or even a pack of ciga-

rettes resting on the center console—that the adult driver

was unlawfully distributing cigarettes to a minor passenger

under ORS 323.482; nor, for that matter, would an unopened

six-pack of beer visible in the car, by itself, provide reason-

able suspicion that minor children near the beer were in

possession of that alcohol. This circumstance is not materi-

ally different.

Nor did the trooper learn anything more by the time

that youth was asked to get out of the vehicle that would

make it reasonable to believe that any marijuana in the car

belonged to the passengers rather than the driver. By that

point, the trooper also knew that the driver had recently

rented the vehicle, he knew that the driver was lying about

his trip to California, he “could smell that there was either

cologne or like an air freshener smell coming from the vehi-

cle” when the driver exited, and he knew that, when the

driver walked back to the front of the patrol car, he “could

not smell the odor of the marijuana coming from his per-

son, which made [the trooper] believe that the marijuana

was still placed somewhere in the vehicle and at this point

in possession—the minors had possession of the marijuana.”

(Emphasis added.)

Setting aside, for the moment, whether the passen-

gers may have been implicated in the crime of importing

marijuana (which we discuss below), those circumstances

suggested that the marijuana was not on the driver’s

person—and that the vehicle’s occupants wanted to conceal

428 State v. T. T.

the odor—but they did little to affirmatively connect posses-

sion to the underage passengers as opposed to the driver.

The marijuana was just as likely to have belonged to the

adult driver but been stored somewhere in the car rather

than on his person (a fact that would be consistent with the

trooper’s own observation that the smell was not from an

amount that typically would be located in a pocket). Again,

considering that it is lawful for persons 21 and over to pos-

sess some amount of marijuana in Oregon, the odor of usable

marijuana in the vehicle was unremarkable, and the fact

that the marijuana was not on the driver’s person did not

make it objectively reasonable to believe that the underage

passengers were the ones in possession of it—let alone that

the driver had delivered it to them unlawfully. Those possi-

bilities involve speculation about missing facts, not reason-

able inferences from the observed facts.

c. Importing marijuana

That brings us to the second basis that the trooper

articulated for seizing the driver and youth as part of a drug

investigation: whether the trooper, at the time he asked

them to get out of the vehicle, had reasonable suspicion that

the car and its occupants were importing marijuana from

California to Oregon.

At the time of the traffic stop, ORS 475B.227(2)

provided that “[a] person may not import marijuana items

into this state or export marijuana items from this state.”

For purposes of that statute, “export” included “placing a

marijuana item in any mode of transportation for hire, such

as luggage, mail or parcel delivery, even if the transporta-

tion of the marijuana item is intercepted prior to the mari-

juana item leaving this state.” ORS 475B.227(2). Critically,

ORS 475B.227(2) is not limited by quantity. Unlike general

delivery or possession, which is unlawful only when done

in quantities above a particular threshold, importation or

exportation of any amount of marijuana is illegal in Oregon.

As summarized in the state’s brief, the trooper

specifically identified that statute as a basis for his drug

investigation, and he identified the following facts, which he

knew at the time that he asked the driver and then youth to

Cite as 308 Or App 408 (2021) 429

step out of the vehicle, as contributing to his suspicion that

it had been violated:

• They were traveling I-5 which the trooper believed

to be a “heavy trafficking area.” As the trooper tes-

tified, “I-5 is used a lot to transport marijuana.”

• Their trip was to northern California. As the trooper

testified, “California, especially northern California

is a source area for marijuana.”

• They were traveling in a rental car, and, according

to the trooper it is “common for individuals that are

trafficking drugs to use a rental car to effectuate

that.”

• There was nothing visible in the vehicle to suggest

a long trip. According to the trooper “usually if peo-

ple are coming on a long trip, there’s bags in the car,

there’s pillows, blankets, you know, food, scraps,

wrappers, things like that, and there was nothing

in his car.”

• There was a “pretty strong odor” of green marijuana

coming from the vehicle.

• The driver had “lied about how long he had been in

California.”

• According to the trooper, “the quick turnaround

time is very unusual for somebody to drive 7

hours—7 plus hours to Redding, California, to turn

around and drive 7 plus hours back just a few hours

later. From my training and experience, that typi-

cally is used by people who are transporting drugs,

just making quick trips down to get the product and

come back up.”

The first four of those facts—those concerning the

point of origin, destination, mode of travel, and type and

quantity of luggage, etc.—are based on what is known as the

drug courier profile. In examining the proper weight that

those factors bear under Article I, section 9, the evolution of

federal case law regarding profiling facts provides a helpful

framing, and, importantly, a helpful constitutional contrast

430 State v. T. T.

for how Oregon’s approach has diverged from recent Fourth

Amendment cases.

In Reid v. Georgia, 448 US 438, 441, 100 S Ct 2752,

65 L Ed 2d 890 (1980), the Court considered whether infor-

mation consistent with a drug courier profile could suffice

to create reasonable suspicion for a stop. There, the defen-

dant, Reid, arrived in Atlanta, Georgia, on a commercial

flight originating in Fort Lauderdale, Florida. As passen-

gers exited the plane, they were observed by a DEA agent.

Not far from Reid in the line was another man carrying a

shoulder bag similar to Reid’s. As the passengers proceeded

through the concourse past the baggage claim area, Reid

occasionally glanced in the direction of the other man.

When the two men reached the main lobby of the terminal,

the second man caught up with Reid and they spoke briefly.

The two men then left the terminal together.

A DEA agent approached Reid and his companion

outside of the building, identified himself as a DEA agent,

and asked them to display their identification and ticket

stubs. Both men complied. The tickets, which had been pur-

chased with Reid’s credit card, revealed that both men had

stayed in Fort Lauderdale only one day. According to the

agent’s testimony, the men appeared nervous during this

encounter. The agent then asked the men if they would

agree to return to the terminal and to consent to a search

of their persons and their shoulder bags. The agent testi-

fied that Reid nodded his head affirmatively, and that the

other man responded, “yeah, okay.” As the three men reen-

tered the terminal, however, Reid began to run. Before he

was apprehended, he abandoned his shoulder bag. The bag,

when recovered, was found to contain cocaine.

The Court unanimously found the stop unconstitu-

tional:

“The appellate court’s conclusion in this case that the

DEA agent reasonably suspected the petitioner of wrong-

doing rested on the fact that the petitioner appeared to the

agent to fit the so-called ‘drug courier profile,’ a somewhat

informal compilation of characteristics believed to be typ-

ical of persons unlawfully carrying narcotics. Specifically,

the court thought it relevant that (1) the petitioner had

Cite as 308 Or App 408 (2021) 431

arrived from Fort Lauderdale, which the agent testified

is a principal place of origin of cocaine sold elsewhere in

the country, (2) the petitioner arrived in the early morning,

when law enforcement activity is diminished, (3) he and

his companion appeared to the agent to be trying to con-

ceal the fact that they were traveling together, and (4) they

apparently had no luggage other than their shoulder bags.

“We conclude that the agent could not as a matter of

law, have reasonably suspected the petitioner of criminal

activity on the basis of these observed circumstances. Of

the evidence relied on, only the fact that the petitioner pre-

ceded another person and occasionally looked backward

at him as they proceeded through the concourse relates to

their particular conduct. The other circumstances describe

a very large category of presumably innocent travelers,

who would be subject to virtually random seizures were the

Court to conclude that as little foundation as there was in

this case could justify a seizure.”

Reid, 448 US at 440-41.

In finding the stop unconstitutional, Reid supplied

the definition of “profile” information used by courts and

commentators to this day. Profile information is not focused

on a suspect’s conduct, but on the confluence of a series

of characteristics and circumstances believed common

to those engaged in criminal activity, but that could also

encompass innocent persons. See Florida v. Royer, 460 US

491, 494 n 2, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (“The

‘drug courier profile’ is an abstract of characteristics found

to be typical of persons transporting illegal drugs.”); Joseph

P. D’Ambrosio, The Drug Courier Profile and Airport Stops:

Reasonable Intrusions or Suspicionless Seizures?, 12 Nova

L Rev 273, 275 (1987) (noting that drug courier profiles are

informal compilations of characteristics thought common to

persons transporting narcotics).

Nine years later, the Court revisited the issue of

the drug courier profile. DEA agents stopped the defen-

dant, Sokolow, as he arrived at the Honolulu International

Airport, after the agents concluded that Sokolow’s behavior

“had all the classic aspects of a drug courier.” United States

v. Sokolow, 490 US 1, 109 S Ct 1581, 104 L Ed 2d 1 (1989).

As the Ninth Circuit described:

432 State v. T. T.

“The agents knew only the following facts matching their

‘drug courier profile’ when they first approached Sokolow:

(1) that Sokolow had just returned from a three-day trip to

Miami, a well-known source city for drugs; (2) that Sokolow

had paid for his tickets out of a large wad of $20 bills;

(3) that neither Sokolow nor Norian checked any luggage;

(4) that Sokolow changed planes en route to Hawaii; (5) that

Sokolow dressed in a black jumpsuit and wore a lot of gold

jewelry; and (6) that Sokolow had his voice on an answering

machine at a phone subscribed to by Karl Herman but told

the airline his name was Andrew Kray.”

United States v. Sokolow, 808 F2d 1366, 1370 (9th Cir 1987),

vac’d, 831 F2d 1413 (9th Cir 1987), rev’d, 490 US 1, 109 S Ct

1581, 104 L Ed 2d 1 (1989).

Applying Reid, the Ninth Circuit held that the stop

was unconstitutional because it was based on the profile fac-

tors that would apply to a large segment of innocent persons:

“The only remaining grounds for the seizure were that

Sokolow had taken only carry-on bags on a three-day trip

to Miami, changing planes on the way back and buying

his tickets in cash. These facts can be broken down into

two types: those that clearly ‘describe a very large cate-

gory of presumably innocent travelers’ and those that argu-

ably relate to the ‘particular conduct’ of the defendant. * * *

Under Reid, ‘the most general of [courier profile] charac-

teristics cannot support a Terry stop without more partic-

ularized evidence of suspicious activity.’ * * * We conclude

that arriving on a connecting flight from a three-day trip to

Miami with only carry-on luggage—facts (1), (3) & (4)—are

also the type of general characteristics shared by a large

category of innocent travelers that cannot support a Terry

stop absent particularized evidence of criminal activity.”

Sokolow, 808 F2d at 1371.

The Supreme Court disagreed, reversing course

from Reid and holding that profile information could estab-

lish reasonable suspicion such as to justify a stop under the

Fourth Amendment. Sokolow, 490 US at 9. The majority

held:

“Any one of these factors is not by itself proof of any

illegal conduct and is quite consistent with innocent travel.

Cite as 308 Or App 408 (2021) 433

But we think taken together they amount to reasonable

suspicion. * * *

“We do not agree with respondent that our analysis is

somehow changed by the agents’ belief that his behavior

was consistent with one of the DEA’s ‘drug courier profiles.’

* * * A court sitting to determine the existence of reason-

able suspicion must require the agent to articulate the fac-

tors leading to that conclusion, but the fact that these fac-

tors may be set forth in a ‘profile’ does not somehow detract

from their evidentiary significance as seen by a trained

agent.”

Sokolow, 490 US at 9-10.

Justice Marshall, joined by Justice Brennan, dis-

sented, viewing Sokolow as materially indistinguishable

from Reid:

“That the factors comprising the drug courier profile

relied on in this case are especially dubious indices of ongo-

ing criminal activity is underscored by Reid v. Georgia, * * *

a strikingly similar case. * * *

“[The Reid facts], we held, [were] inadequate to support

a finding of reasonable suspicion. All but the last of these

facts, we observed, ‘describe a very large category of pre-

sumably innocent travelers, who would be subject to vir-

tually random seizures were the Court to conclude that as

little foundation as there was in this case could justify a

seizure.’ * * *

“The facts known to the DEA agents at the time they

detained the traveler in this case are scarcely more sugges-

tive of ongoing criminal activity than those in Reid.”

Sokolow, 490 US at 14-15 (Marshall, J., dissenting).

The dissent warned against the risks of depart-

ing from Reid, concluding that profile justification for stops

risked citizens being “subjected to ‘overbearing or harass-

ing’ police conduct carried out solely on the basis of impre-

cise stereotypes of what criminals look like, or on the basis

of irrelevant personal characteristics such as race.” Id. at

13. The dissent pointed out that “[r]eflexive reliance on a

profile of drug courier characteristics runs a far greater risk

than does ordinary, case-by-case police work of subjecting

innocent individuals to unwarranted police harassment and

434 State v. T. T.

detention. This risk is enhanced by the profile’s ‘chameleon-

like way of adapting to any particular set of observations.’ ”

Id. at 13.

Turning back to the analysis required by Article I,

section 9, our state constitutional approach differs markedly

from Sokolow and the standard for reasonable suspicion

under the Fourth Amendment. We have held that, under our

state constitution, “[p]eople are entitled to be evaluated on

their individual behavior, not that of groups to which they

may belong.” State v. Baldwin, 76 Or App 723, 729, 712 P2d

120 (1985), rev den, 301 Or 193 (1986). In reaching that con-

clusion we cited, with approval, the reasoning of Reid. Id.;

see also State v. Martin, 260 Or App 461, 469, 317 P3d 408

(2014) (“The officer’s suspicion must be particularized to the

person and based on the person’s conduct.” (Citing Miglavs,

337 Or at 12.)); accord State v. Pichardo, 360 Or 754, 760,

388 P3d 320 (2017) (holding that, even when something less

than reasonable suspicion of criminal activity is required

to show that a request for consent to search is related to

the stop, “the state must be able to point to a ‘reasonable,

circumstance-specific’ relationship between the inquiry and

the purpose of the detention”).

We have discussed reasonable suspicion in the con-

text of drug corridors, and profiling-based stops, on multiple

occasions. In State v. Maciel, 254 Or App 530, 538-39, 295

P3d 145 (2013), the state proffered a series of drug corri-

dor factors to establish reasonable suspicion, three of which

(passage from California on I-5, lack of visible luggage, and

dishonest explanations about the circumstances) are identi-

cal to factors relied upon by the trooper in this case:

“Those ‘indicators,’ as [the officer] identified them, were

(1) the California license plates of the vehicle and its pas-

sage northbound on I-5 at 4:00 a.m., (2) the third-party reg-

istration of the vehicle, (3) the existence of identical prepaid

cellular phones in the vehicle, (4) the religious medallion

affixed to the rearview mirror of the vehicle, and (5) the

lack of visible luggage in the passenger compartment of the

vehicle. In addition, [the officer] noted that defendant had

immediately offered inconsistent explanations about the

ownership of the car.”

Cite as 308 Or App 408 (2021) 435

254 Or App at 538. We held that those factors did not create

reasonable suspicion of drug trafficking:

“[The officer’s] remaining ‘indicators’ each carry lit-

tle weight in establishing reasonable suspicion. As to the

first indicator, [he] did not explain the significance of the

vehicle’s California license plates or its presence on I-5—

aside from acknowledging that I-5 is a road regularly

used for narcotics trafficking—at the suppression hearing.

Similarly, with regard to the second indicator, [the officer]

testified that ‘often people engaging in criminal enter-

prises will use a third-party vehicle to help them distance

themselves from whatever contraband * * * may be in the

vehicle.’ Finally, with regard to the third indicator, [the

officer] testified that, based on his training and experience,

he knew that ‘often drug dealers [and] people engaging in

different criminal enterprises use those types of phone[s,]’

viz., prepaid cellular phones, because they are difficult to

trace. However, [the officer] acknowledged that he knew of

no restrictions on the purchase or use of prepaid cellular

phones and that they can be lawfully acquired with ease—

by criminals and noncriminals alike.

“To the extent that [the officer] associated those facts

with drug trafficking—or other, unspecified criminal con-

duct—they were insufficient to establish a reasonable sus-

picion of that criminal activity.”

254 Or App at 538-39.

More recently, in State v. Tapp, 284 Or App 583,

588-89, 393 P3d 262 (2017), we specifically addressed the

weight accorded to the location of a stop being a “drug corri-

dor.” At the time that the officer in Tapp extended the traffic

stop to investigate drug trafficking, he knew that the defen-

dant was driving on a suspended license on an interstate

highway in a messy car, with his mother driving behind

him; that defendant was nervous to talk to him; and that

defendant’s mother appeared to deliberately weave her car

when the officer first started following them, which might

have been an effort to alert the defendant to the police

presence—something that could have been “baiting activity”

to distract the officer from the defendant. We held that the

facts did not make it reasonable to assume that the conduct

436 State v. T. T.

was drug trafficking, despite occurring on a highway char-

acterized by the officer as a “drug trafficking corridor”:

“None of that information, without more, made it objectively

reasonable to think that defendant might have been traf-

ficking drugs (which could be why [the officer] kept clari-

fying that his suspicion was of ‘criminal activity,’ not drug

trafficking). Although [the officer] characterized Highway

20 as a ‘drug trafficking corridor,’ there is no indication

that that interstate highway has fallen so out of favor with

travelers not trafficking in drugs that it would be reason-

able to infer that a person is a drug trafficker simply from

his use of the highway.”

Id. at 588-89.

In light of our precedent, four of the factors iden-

tified by the trooper in this case are entitled to very little

weight, individually and in combination: his observation

that there was nothing in the passenger compartment of the

vehicle to suggest a long trip; that they made the trip down

and back on I-5; that they were traveling in a rental car;

and that their destination was northern California. Those

factors are unremarkable and sweep up an impermissibly

broad segment of the population to constitute the particu-

larized suspicion of a specific crime that is required under

Oregon law.4

The question is whether the additional facts known

to the trooper are enough to change the calculus. As noted ear-

lier, one of those factors—the smell of marijuana—generally

no longer has the significance it once had as a basis for rea-

sonable suspicion, in light of decriminalization. As the legal

status of cannabis in Oregon has changed, so too does the

4

Analogously, we have repeatedly held that observations of a suspect going

to, or coming from, a known drug house, or their presence in a high crime area

bear minimal weight in a reasonable suspicion analysis. See, e.g., State v. Westcott,

282 Or App 614, 619, 385 P3d 1268 (2016), rev den, 361 Or 486 (2017) (“Nor is it

particularly significant in the abstract that defendant had recently left a location

known for drug sales.”); State v. Barber, 279 Or App 84, 95, 379 P3d 651 (2016)

(“The fact that defendant and his companion were staying at the motel, which

Morrison knew to be a frequent site of drug activity, contributes only minimally

to our analysis.”); State v. Wiggins, 262 Or App 351, 361, 324 P3d 626 (2014)

(“As an initial matter, two of those circumstances—viz., defendant’s presence in a

‘high drug trafficking and use area of the city’ and her ‘admissions’ to prior drug

use months before the stop—carry minimal weight.”).

Cite as 308 Or App 408 (2021) 437

role that the odor of marijuana plays in the reasonable sus-

picion calculus. As the trooper testified in this case, a strong

odor can signal the presence of marijuana, but not neces-

sarily the presence in a quantity that is illegal for persons

21 and older to lawfully possess. For that reason, odor adds

only that much to the calculus—that some amount of mari-

juana may be present.

However, the statute for which the trooper had sub-

jective reasonable suspicion in this case—ORS 475B.227(2)—

is one of the only remaining statutes in Oregon, post-

decriminalization, that is not dependent on a specific quan-

tity of marijuana to establish unlawful activity. Thus, while

an odor of marijuana may say very little as to whether an

individual is engaged in the unlawful possession or delivery

of marijuana generally, odor carries at least some import

for evaluating reasonable suspicion of a violation of ORS

475B.227(2).

For purposes of reasonable suspicion of a violation

of ORS 475B.227(2), however, odor was not the only addi-

tional fact in this case. There was another set of circum-

stances known to the trooper: From the rental agreement,

it appeared that the car had been rented less than 24 hours

earlier at the Portland airport; that the vehicle’s occupants

had made a roundtrip to Redding, California—approximately

seven hours each direction—in the same day; and that the

driver had attempted to conceal how long they had been

in Redding. Although there was nothing illegal about that

travel pattern, it was an unusually quick roundtrip. And,

the driver’s story about when they had left Redding was not

simply implausible or suspicious; rather, it was an attempt

to conceal how unusual the travel pattern was. Cf. Maciel,

254 Or App at 541-42 (“no connection was offered between

defendant’s bizarre story and the crime of drug trafficking”).

This is a close case. However, we conclude that those

additional circumstances, in combination with the presence

of marijuana and what the trooper knew, from his training

and experience, about the use of rental cars to traffic drugs

along the I-5 corridor, were enough to give rise to a reason-

able inference that the vehicle was being used for drug traf-

ficking. And, under those circumstances, it was reasonable

438 State v. T. T.

for the trooper to suspect that all of the vehicle’s occupants

had made the trip down and back together and were involved

in the trafficking operation.

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 any-

thing 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 investiga-

tion of the driver and youth was supported by reasonable

suspicion.

3. Probable cause

Youth also argues that, even if the questioning of

the driver and youth were lawful, the trooper lacked prob-

able cause to search the vehicle. He argues that the facts

just discussed, plus the smell of the air freshener or cologne

that wafted out of the car when the driver got out, were

not enough to meet that higher standard. But, as the state

points out, there was another fact known to the trooper by

the time he searched the vehicle (in addition to inconsistent

stories among the vehicle occupants about their trip): the

driver had admitted that he brought an ounce of marijuana

with him from California, which the trooper knew to be a

crime under ORS 475B.227(2). In light of the driver’s admis-

sion, the trooper had probable cause to search the vehicle for

evidence of that crime under the automobile exception to the

warrant requirement. State v. Bliss, 363 Or 426, 438, 423

P3d 53 (2018) (for that exception to apply, “(1) the car must

have been mobile at the time it was lawfully stopped by the

police; and (2) the police had probable cause to believe that

the car contained contraband or crime evidence at the time

of the search”).

B. Fourth Amendment

“Unlike our analysis of traffic stops under Article I,

section 9, under the Fourth Amendment, a police officer

‘effectively seizes everyone in the vehicle, the driver and

all passengers’ for the duration of a traffic stop.” State v.

Cite as 308 Or App 408 (2021) 439

Evans, 284 Or App 806, 814, 397 P3d 42 (2017) (quoting

Arizona v. Johnson, 555 US 323, 327, 129 S Ct 781, 172 L Ed

2d 694 (2009)). “Reasonable suspicion” under the Fourth

Amendment “entails a minimal level of objective justifica-

tion for making a stop.” State v. Wiseman, 245 Or App 136,

140, 261 P3d 76 (2011). An officer “must be able to point

to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant

that intrusion.” Terry v. Ohio, 392 US 1, 21, 88 S Ct 1868, 20

L Ed 2d 889 (1968); see also Sokolow, 490 US at 7.

In reviewing whether the officer had reasonable sus-

picion, the court looks at the totality of the circumstances,

giving due weight to the factual inferences drawn by the

officer and the trial court judge. United States v. Arvizu, 534

US 266, 277, 122 S Ct 744, 151 L Ed 2d 740 (2002). Even if

each fact standing alone might be consistent with innocent

activity, the factors can form reasonable suspicion when

viewed together. Sokolow, 490 US at 9.

As discussed above, the Fourth Amendment stan-

dard for reasonable suspicion of drug trafficking is, if any-

thing, less protective of youth’s rights than Article I, section 9.

308 Or App at 431-34 (contrasting the standard under

Sokolow). For the reasons set out in our analysis of reason-

able suspicion under Article I, section 9, we conclude that,

for purposes of the Fourth Amendment, the trooper lawfully

extended the traffic stop based on reasonable suspicion that

the vehicle was being used to import marijuana to Oregon.

We reach the same conclusion with respect to prob-

able cause that we reached under the state constitution. See

United States v. Ross, 456 US 798, 823, 102 S Ct 2157 (1982)

(“[A]n individual’s expectation of privacy in a vehicle and

its contents may not survive if probable cause is given to

believe that the vehicle is transporting contraband.”).

III. CONCLUSION

In this case, the trooper formed a subjective rea-

sonable suspicion of a specific drug offense—the interstate

transport of marijuana, ORS 475B.227(2). Although that rea-

sonable suspicion was based, in part, on profiling informa-

tion that carries minimal weight in establishing reasonable

440 State v. T. T.

suspicion for purposes of the Oregon Constitution, it was

accompanied by other nonprofiling facts. The odor of mar-

ijuana, while contributing little to the reasonable suspi-

cion analysis for general crimes of possession or delivery

of marijuana, in the wake of Oregon’s decriminalization

of cannabis, is more probative in relation to the interstate

import and export statute, which is not limited by quantity.

Although close, those facts, in combination with the driver’s

attempt to conceal their travel pattern, established that the

trooper’s subjective reasonable suspicion of ORS 475B.227(2)

was objectively reasonable.

Affirmed.