Opposition Brief — Junjie Li, Petitioner v. Rhode Island

No. 23-446

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JUNJIE LI,

Petitioner,

v.

STATE OF RHODE ISLAND,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Rhode Island

---------------------------------♦--------------------------------BRIEF IN OPPOSITION

---------------------------------♦--------------------------------PETER F. NERONHA

CHRISTOPHER R. BUSH

Counsel of Record

DEVON FLANAGAN HOGAN

OFFICE OF THE ATTORNEY GENERAL

150 South Main Street

Providence, RI 02903

(401) 274-4400

cbush@riag.ri.gov

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

A Rhode Island State Trooper conducted a valid traffic

stop of a vehicle for a seatbelt violation. During the

stop, the trooper detected the odor of raw or fresh

marijuana emanating from the vehicle and observed

abnormally nervous behavior on the part of the Petitioner. Based on those observations, and the fact that

the Petitioner was traveling on a highway considered

by law enforcement to be a drug trafficking corridor,

the trooper requested that another state trooper respond with a drug-sniffing dog. Is the odor of raw or

fresh marijuana a factor that may be considered when

examining the totality of the circumstances to determine whether a law enforcement officer had reasonable suspicion of criminal activity to prolong a valid

traffic stop?

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Table of Authorities .............................................

iv

Introduction .........................................................

1

Statement of the Case .........................................

2

Reasons for Denying the Petition ........................

9

I.

This Court Lacks Jurisdiction To Review

This Case Under 28 U.S.C. § 1257(a) Because No Final Judgment Entered In

State Court ................................................ 10

II.

The Rhode Island Supreme Court Did Not

Hold That The Odor Of Raw Or Fresh

Marijuana Alone Is Sufficient To Establish Reasonable Suspicion To Prolong A

Traffic Stop ................................................ 13

III.

There Is No Conflict Among State Courts

Of Last Resort Regarding The Role That

The Odor Of Raw Or Fresh Marijuana

Plays When Determining Whether There

Is Reasonable Suspicion Of Criminal

Activity Sufficient To Prolong A Traffic

Stop ............................................................ 15

IV.

The Massachusetts Cases That The Petitioner Cites As Examples Of His Argument Are Inapposite .................................. 19

iii

TABLE OF CONTENTS—Continued

Page

V.

This Case Is A Poor Vehicle For Deciding

Whether The Odor Of Marijuana May Be

Considered When Examining Whether

The Totality Of The Circumstances Establish Reasonable Suspicion To Prolong A

Traffic Stop ................................................ 20

Conclusion............................................................ 22

iv

TABLE OF AUTHORITIES

Page

CASES

Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) ........17

Commonwealth v. Cordero, 74 N.E.3d 1282

(Mass. 2017) ............................................................19

Commonwealth v. Craan, 13 N.E.3d 569 (Mass.

2014) ........................................................................19

Commonwealth v. Cruz, 945 N.E.2d 899 (Mass.

2011) .................................................................. 17, 19

Commonwealth v. Daniel, 985 N.E.2d 843 (Mass.

2013) ........................................................................19

Commonwealth v. Jackson, 985 N.E.2d 853

(Mass. 2013) ............................................................20

Commonwealth v. Locke, 51 N.E.3d 484 (Mass.

App. Ct. 2016) ..........................................................20

Commonwealth v. Overmyer, 11 N.E.3d 1054

(Mass. 2014) ............................................................19

Commonwealth v. Rodriguez, 37 N.E.3d 611

(Mass. 2015) ............................................................20

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975) ................................................................. 11-13

Florida v. Thomas, 532 U.S. 774 (2001) ............... 10-12

Flynt v. Ohio, 451 U.S. 619 (1981) ..............................11

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

(1989) .......................................................................10

Illinois v. Wardlow, 528 U.S. 119 (2000) ....................17

In re: D.D., 277 A.3d 949 (Md. 2022) ..........................16

v

TABLE OF AUTHORITIES—Continued

Page

In re O.S., 112 N.E.3d 621 (Ill. App. Ct. 2018) ..... 17, 18

Navarette v. California, 572 U.S. 393 (2014) ........ 13, 21

People v. Armstrong, No. 360693, 2022 WL

17169566 (Mich. Ct. App. 2022) ..............................17

People v. Zuniga, 372 P.3d 1052 (Colo. 2016) .............17

State v. Crocker, 97 P.3d 93 (Alaska Ct. App.

2004) ........................................................................16

State v. Li, 297 A.3d 908 (R.I. 2023) .............................7

State v. Moore, 488 P.3d 816 (Or. Ct. App. 2021) ..... 17, 18

State v. Nagel, 232 A.3d 1081 (Vt. 2020) ....................17

State v. O’Brien, 301 A.3d 370 (N.H. 2023) .......... 17, 18

State v. Roberson, 492 P.3d 620 (Okla. Crim. App.

2021) ........................................................................17

State v. Sisco, 373 P.3d 549 (Ariz. 2016) ....................16

State v. Torgerson, 995 N.W.2d 164 (Minn. 2023) ......17

United States v. Cortez, 449 U.S. 411 (1981) ..............13

STATUTES

28 U.S.C. § 1257(a) ............................................ 1, 10, 13

R.I. Gen. Laws § 21-28.11-18(b) .................................14

R.I. Gen. Laws § 9-24-32 ..............................................7

R.I. Gen. Laws § 9-24-33 ..............................................7

1

INTRODUCTION

Whether a police officer possessed reasonable suspicion of criminal activity sufficient to prolong a valid

traffic stop is determined based on the information

the officer possessed at the time and the totality of the

circumstances. The Rhode Island Supreme Court examined the totality of the circumstances in this case

and held that the Rhode Island State Trooper who prolonged the traffic stop had reasonable suspicion of

criminal activity based on the odor of raw or fresh marijuana emanating from the Petitioner’s car, the Petitioner’s abnormal nervousness, and the brevity of the

Petitioner’s roundtrip from New York to Boston and

route of travel along a known drug trafficking corridor.

The Petitioner is wrong in suggesting that the Rhode

Island Supreme Court held that the odor of marijuana

alone can establish reasonable suspicion.

The Rhode Island Supreme Court’s decision also

sustained an interlocutory appeal of a trial court’s decision granting the Petitioner’s motion to suppress. No

criminal conviction entered in the state court and the

Petitioner has not been sentenced. The Rhode Island

Supreme Court’s decision is not final and, as a result,

the Court lacks jurisdiction to decide this case under

28 U.S.C. § 1257(a).

There is also no conflict among state courts for this

Court to resolve. It is illusory. Only six of the fourteen

cases that the Petitioner claims give rise to a state

court split address the issue of whether the odor of marijuana may be considered as part of a reasonable

2

suspicion analysis. The decisions in five of those cases

are consistent with each other and the sixth is readily

distinguishable.

The Petitioner also misinterprets the Rhode Island Supreme Court’s decision. The court did not hold

that the odor of raw or fresh marijuana alone is sufficient to establish reasonable suspicion, a position that

the Petitioner claims is held by four other states and

that he believes erroneously ignores changes to state

laws decriminalizing the possession of small amounts

of marijuana. The Rhode Island Supreme Court instead clearly and unambiguously held that the odor of

raw or fresh marijuana was a factor to be considered

when examining the totality of circumstances. That is

the position the state courts that the Petitioner suggests have correctly decided this issue have taken.

The petition for writ of certiorari should be denied.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

On May 25, 2019, Rhode Island State Trooper Justin Andreozzi (“Officer Andreozzi”) was monitoring

northbound traffic on Interstate 95 while parked under an overpass in Exeter, Rhode Island. Pet. App. 4a.

At approximately 11:16 that morning, Officer Andreozzi observed a Ford Taurus with New York license

plates traveling north and saw that the front-seat passenger, later identified as Zhong Kuang, was sleeping

and not wearing a seatbelt. Id. at 4a-5a. Officer Andreozzi pulled into traffic and attempted to catch up

3

with the vehicle to conduct a traffic stop for the seatbelt violation. Id. at 5a. When Officer Andreozzi pulled

up behind the vehicle, he saw Kuang sit up and look

over his shoulder at Officer Andreozzi’s cruiser and

fasten his seatbelt. Id. Officer Andreozzi activated the

emergency lights on his cruiser and the vehicle pulled

over in the breakdown lane. Id.

Officer Andreozzi exited his cruiser and approached the passenger side of the vehicle to avoid

standing directly in the highway. Id. As he did, Officer

Andreozzi saw that there were two men in the vehicle,

Petitioner Junjie Li, who was driving, and Kuang, the

passenger. Id. Officer Andreozzi told the Petitioner

that he stopped the car because Kuang was not wearing a seatbelt and asked the Petitioner for his license,

registration, and proof of insurance. Id. at 5a-6a. After the Petitioner provided the requested information,

Officer Andreozzi asked the Petitioner why the vehicle

was registered in someone else’s name and the Petitioner explained that the car belonged to Kuang, his

uncle. Id. at 6a. The Petitioner said the two were driving from New York to Boston to visit a friend for a couple of hours and then driving back to New York. Id. The

Petitioner added that he was driving because Kuang

was tired. Id.

Officer Andreozzi noticed that the Petitioner, who

did not appear nervous when Officer Andreozzi first

approached the vehicle, started exhibiting nervous

behavior and became increasingly anxious as they

spoke. Id. at 6a, 31a. The Petitioner’s chest was pounding and his neck was pulsing, and, even though the

4

temperature was mild, the Petitioner began to perspire. Id. at 6a, 31a. Andreozzi later explained “that,

in his experience, [the Petitioner’s] nervousness ‘was

above where someone is nervous because they were

stopped for the passenger . . . not wearing a seatbelt.’ ”

Id. at 31a.

While standing at the front passenger window of

the vehicle, Officer Andreozzi noticed “a ‘slight odor of

fresh marijuana’ coming from inside the vehicle.” Id. at

6a. At the suppression hearing, Andreozzi testified that

there was no question in his mind that he smelled raw

marijuana, and explained that, although he wrote in

his post-arrest report that he detected a “slight odor of

fresh marijuana[,]” he considered it “slight” because,

based on the “[ninety-four] pounds of marijuana which

is what was later located, I would have thought that it

would have had a stronger odor. . . .”

Officer Andreozzi asked the Petitioner to get out of

his car for officer safety, to separate the Petitioner and

Kuang, and so that he could ask the Petitioner questions without prolonging the traffic stop. Id. at 6a-7a.

The Petitioner complied with the request and sat in the

front passenger seat of Officer Andreozzi’s cruiser

while Officer Andreozzi performed various law enforcement checks. Id. at 6a-7a.

Officer Andreozzi asked the Petitioner if there was

any illegal contraband in his car such as firearms, cocaine, or methamphetamines and the Petitioner said

there was not. Id. at 7a. When Officer Andreozzi then

asked if there was any marijuana in the car, the

5

Petitioner paused and Officer Andreozzi saw him “ ‘target glance’ ” the rear of Kuang’s car, before turning

back to Officer Andreozzi and responding that there

was not. Id. at 7a. According to Officer Andreozzi, a

“target glance” is a nonverbal indicator of criminal

activity, in particular, the transportation of narcotics.

Id. at 7a-8a.

Based on the odor of raw or fresh marijuana that

he detected, the Petitioner’s abnormal nervousness,

and the brevity of the Petitioner and Kuang’s trip to

Boston and their route of travel along a known drug

trafficking corridor, Officer Andreozzi called for backup

and asked that Rhode Island State Trooper James

D’Angelo (“Officer D’Angelo”) respond with a K-9

trained in marijuana detection. Id. at 8a. When Officer

D’Angelo arrived, Kuang got out of his car and, when

he did so, Officer Andreozzi again smelled the odor of

fresh marijuana. Id. at 8a. Officer D’Angelo walked the

dog around Kuang’s car; when he reached the rear, the

dog placed his nose on the trunk seal and sat down,

indicating the presence of a narcotic odor. Id. Approximately fifteen minutes had elapsed between the time

that Officer Andreozzi pulled the Petitioner and Kuang

over and when the dog alerted to the narcotic odor. Id.

Officer Andreozzi opened the vehicle’s trunk and

he and Officer D’Angelo saw “five large laundry-style

bags containing a total of ninety-four (94) approximately one-pound vacuum-sealed bags of suspected

marijuana.” Id. The troopers arrested the Petitioner

and Kuang and arranged for their vehicle to be towed

to the state police barracks where the suspected

6

marijuana was tested and the troopers conducted an

inventory search of the vehicle. Id. at 8a-9a. The field

test yielded “a positive response to the presumptive

presence of marijuana” and the officers discovered a

set of metal nunchucks in the driver’s side door during

the inventory search. Id. at 9a. When searching the

Petitioner, the officers discovered a substantial sum of

money in his wallet. Id.

The State charged the Petitioner and Kuang with

possession with intent to deliver marijuana and possession of one to five kilograms of marijuana and also

charged the Petitioner with possession of the metal

nunchucks. Id. at 9a. The Petitioner and Kuang each

moved to suppress the marijuana seized from Kuang’s

car in the Rhode Island Superior Court. Id. at 9a.

A trial justice held a hearing on the motions to

suppress and three months later issued a decision

granting the motions. Id. at 9a. The trial justice first

found that Officer Andreozzi impermissibly prolonged

the traffic stop when he removed the Petitioner from

the car because that “was a deviation from the mission

of the traffic stop. . . .” Id. The trial justice then concluded that Officer Andreozzi’s prolonging of the traffic

stop was not reasonable. Id. The trial justice found that

the Petitioner’s “ ‘nervousness, coupled with the slight

odor of marijuana and the location of the traffic stop

being in a known drug trafficking corridor’ was insufficient to establish reasonable suspicion to prolong

the stop.” Id. at 10a; see also id. at 20a-21a. With respect to the odor of raw marijuana, the trial justice

stated that he could not “ignore the effect the

7

decriminalization of marijuana has on motor vehicle

stops” and that he therefore could not consider the odor

of marijuana when making a reasonable suspicion determination. Id. at 21a.

The State timely noticed an interlocutory appeal

of the trial justice’s order to the Rhode Island Supreme

Court, id. at 11a; see also R.I. Gen. Laws § 9-24-32; R.I.

Gen. Laws § 9-24-33, and that court issued a four-toone decision vacating the trial justice’s orders on July

27, 2023. See Pet. App. 3a-33a (State v. Li, 297 A.3d 908

(R.I. 2023)). The court first held that the trial court

erred in concluding that Officer Andreozzi impermissibly prolonged the traffic stop when he removed the Petitioner from his vehicle, id. at 17a-20a, a holding that

the Petitioner does not challenge. The court then addressed how the odor of marijuana affects a reasonable

suspicion determination in light of the decriminalization and subsequent legalization of marijuana in

Rhode Island. Id. at 21a-27a. Noting that Rhode Island

law “did not legalize the possession of marijuana full

stop,” but rather only permitted individuals to possess

up to one ounce of marijuana for recreational purposes,

the court rejected the Petitioner’s “position that law

enforcement officers may not rely upon the odor of marijuana, with no other facts indicating quantity, to

establish reasonable suspicion.” Id. at 26a-27a. The

court held that the odor of raw or fresh marijuana remained a factor to be considered when analyzing the

“totality of the circumstances, reasonable suspicion of

criminal activity analysis. . . .” Id. at 27a.

8

The court then found “that the trial justice’s reasonable-suspicion analysis was flawed in two respects.”

Id. at 29a. First, the trial justice erred by not considering a totality of the circumstances analysis when

making a reasonable suspicion determination and “instead individually considered each circumstance that

Officer Andreozzi relied upon to develop reasonable

suspicion.” Id. Second, the trial justice “gave little to

no weight to Officer Andreozzi’s law enforcement

training and experience,” despite acknowledging

that Rhode Island law required courts to do so, and

specifically referenced Officer Andreozzi’s observations of the Petitioner’s abnormal nervousness. Id. at

30a-33a.

The Rhode Island Supreme Court concluded that

the facts and circumstances of the case sufficiently established that reasonable suspicion existed to prolong

the traffic stop and that the trial justice erred in granting the motions to suppress. Id. at 32a-33a.

Considering the situation as a whole, and affording Officer Andreozzi’s decade-plus of law

enforcement experience due deference, we are

satisfied that the facts and circumstances

identified above were sufficiently specific and

articulable for Officer Andreozzi to have developed reasonable suspicion that criminal

activity was afoot, justifying the prolongation

of the stop. While we acknowledge that defendants’ nervousness and their route of

travel on a public highway were not strong indicators of criminal activity in and of themselves, when considering the totality of the

9

circumstances from the vantage point of an

experienced police officer, defendants’ abnormal nervousness and route of travel of short

duration, coupled with the odor of marijuana,

could very well create a reasonable suspicion

that the defendants were engaged in some

sort of criminal activity. Additionally, we believe that Officer Andreozzi’s conduct was reasonably responsive to the circumstances

justifying the stop in the first place, as augmented by information gathered during the

stop, and that Officer Andreozzi diligently

pursued a means of investigation that was

likely to confirm or dispel his suspicions

quickly.

Id. at 32a-33a (citations and footnote omitted).

---------------------------------♦---------------------------------

REASONS FOR DENYING THE PETITION

The Petitioner asserts that the Rhode Island Supreme Court held that the odor of raw or fresh marijuana alone is sufficient to provide the reasonable

suspicion necessary to prolong a traffic stop. The Petitioner claims that Rhode Island is one of five states to

reach this conclusion. He further avers that this is a

position that pre-dated amendments to state laws decriminalizing the possession of small amounts of marijuana, and suggests that Rhode Island falls on the

wrong side of a split among state courts of last resort

with respect to this issue.

10

This Court lacks jurisdiction to review the Rhode

Island Supreme Court’s decision because it does not

constitute a final judgment. Moreover, the Petitioner

misinterprets the Rhode Island Supreme Court’s decision and manufactures the so-called split among the

state courts.

I.

This Court Lacks Jurisdiction To Review

This Case Under 28 U.S.C. § 1257(a) Because No Final Judgment Entered In State

Court.

This Court lacks jurisdiction to decide this case.

Title 28, section 1257(a), of the United States Code authorizes this Court “to review ‘[f ]inal judgments or decrees rendered by the highest court of a State in which

a decision could be had . . . where any title, right, privilege, or immunity is specially set up or claimed under

the Constitution.’ ” Florida v. Thomas, 532 U.S. 774,

777 (2001) (quoting 28 U.S.C. § 1257(a)). A criminal

case is generally final when a judgment of conviction

enters and a defendant is sentenced. See id.; Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 54 (1989).

The Petitioner has not been convicted or sentenced

in state court. The Petitioner is instead seeking review

of a decision sustaining the State of Rhode Island’s

appeal of a pretrial order that the trial justice entered

suppressing evidence seized during the traffic stop.

The Rhode Island Supreme Court’s decision sustaining

the State’s interlocutory appeal is not final—the state

11

court remanded the Petitioner’s case to the trial court

for further proceedings—and therefore not reviewable.

In certain circumstances, this Court has “ ‘treated

state-court judgments as final for jurisdictional purposes although there were further proceedings to take

place in the state court.’ ” Thomas, 532 U.S. at 777

(quoting Flynt v. Ohio, 451 U.S. 619, 620-21 (1981) (per

curiam)). In Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975), this Court identified four categories of

cases that it treats as final for jurisdictional purposes

even though no final judgment entered in state court.

See Thomas, 532 U.S. at 777. None of the four exceptions applies here.

The first two Cox Broadcasting categories involve

cases in which “the federal issue would not be mooted

or otherwise affected by the proceedings yet to be had

because those proceedings have little substance, their

outcome is certain, or they are wholly unrelated to the

federal question.” Cox Broadcasting Corp., 420 U.S. at

478; see also Thomas, 532 U.S. at 777-79. That is not

the case here. Should the Petitioner either enter a plea

to the criminal charges in state court before trial or be

acquitted of the charges after trial, the issue of

whether the odor of raw or fresh marijuana may be

considered in a reasonable suspicion analysis would be

moot.

The third Cox Broadcasting category of cases are

those in which “ ‘the federal claim has been finally decided, with further proceedings on the merits in the

state courts to come, but in which later review of the

12

federal issue cannot be had, whatever the ultimate

outcome of the case. . . .’ ” Thomas, 532 U.S. at 779

(quoting Cox Broadcasting Corp., 420 U.S. at 481). This

exception does not apply here because the defendant

may seek review of the suppression decision if convicted after trial.

The fourth and final Cox Broadcasting category of

cases includes those in which

‘the federal issue has been finally decided in

the state courts with further proceedings

pending in which the party seeking review

here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and

where reversal of the state court on the federal issue would be preclusive of any further

litigation on the relevant cause of action rather than merely controlling the nature and

character of, or determining the admissibility

of evidence in, the state proceedings still to

come. In these circumstances, if a refusal immediately to review the state-court decision

might seriously erode federal policy, the Court

has entertained and decided the federal issue,

which itself has been finally determined by

the state courts for purposes of the state litigation.’

Thomas, 532 U.S. at 780 (quoting Cox Broadcasting

Corp., 432 U.S. at 482-83). The arguments that the Petitioner makes here are common to those raised in decisions denying motions to suppress and the reversal

of the Rhode Island Supreme Court’s decision would

13

not preclude further litigation, but rather, simply determine the admissibility of evidence in the state criminal case. This exception does not apply.

No judgment of conviction and sentence has entered in state court, meaning that the decision of the

Rhode Island Supreme Court is not final. Since this

case does not fall into any of the categories of cases

identified in Cox Broadcasting that this Court will

treat as final for jurisdictional purposes even in the absence of a final state court judgment, the Court lacks

jurisdiction to hear this case under 28 U.S.C. § 1257(a).

II.

The Rhode Island Supreme Court Did Not

Hold That The Odor Of Raw Or Fresh Marijuana Alone Is Sufficient To Establish

Reasonable Suspicion To Prolong A Traffic

Stop.

The Rhode Island Supreme Court did not, as the

Petitioner suggests, hold that the odor of marijuana

alone is sufficient to provide the reasonable suspicion

necessary to prolong a traffic stop. See Pet. 15-17,

23-26. The court correctly observed that, as a general

matter, “reasonable suspicion ‘takes into account “the

totality of the circumstances—the whole picture.” ’ ”

Pet. App. 14a (quoting Navarette v. California, 572 U.S.

393, 397 (2014); United States v. Cortez, 449 U.S. 411,

417 (1981)).

The court then summarized the state of Rhode

Island law at the time of this traffic stop. Pet. App. 24a27a. The court observed that, while the possession of a

14

small amount of marijuana had been decriminalized

under the Rhode Island Controlled Substances Act

(“Act”), it was not legalized and the Rhode Island General Laws continued to define marijuana as a controlled substance and contraband. Id. at 25a. Turning

to the impact that these changes to state law had on

the reasonable suspicion analysis, the court rejected

the Petitioner’s contention that law enforcement officers may not rely on the odor of raw or fresh marijuana

to establish reasonable suspicion “with no other facts

indicating quantity . . . ,” noting that such a standard

would be impracticable. Id. at 27a.

The court did not hold, however, that the odor of

raw or fresh marijuana alone was sufficient to establish reasonable suspicion. To the contrary, the court

held that the odor, regardless of how strong or slight,

was a factor that may be considered when examining

the totality of circumstances:

[I]t is our opinion that the odor of raw or

fresh marijuana, standing alone, remains a

factor to be considered in a totality of the circumstances, reasonable suspicion of criminal

activity analysis because possession of marijuana by an individual that exceeds the

amounts permitted by statute remains a

crime subject to arrest and prosecution.

Id. at 27a (citing R.I. Gen. Laws § 21-28.11-18(b)).

The Rhode Island Supreme Court then determined that Officer Andreozzi possessed reasonable

suspicion to prolong the traffic stop based on the

15

totality of the circumstances. Id. at 27a-33a. The court

based its conclusion on: (1) the fact that Officer Andreozzi smelled the odor of raw or fresh marijuana;

(2) Officer Andreozzi’s observations of the Petitioner

during the traffic stop; and (3) the short duration of the

Petitioner and Kuang’s roundtrip from New York to

Boston and their route of travel. Pet. App. 29a-33a. Although the Petitioner describes the nervousness that

Officer Andreozzi observed as “natural and meaningless,” Pet. i, that seemingly reflects the trial justice’s

description, which the Rhode Island Supreme Court

rejected.

The Petitioner’s contention that the Rhode Island

Supreme Court erroneously held that the odor of raw

or fresh marijuana alone is sufficient to establish reasonable suspicion to prolong a traffic stop is incorrect.

III. There Is No Conflict Among State Courts

Of Last Resort Regarding The Role That

The Odor Of Raw Or Fresh Marijuana

Plays When Determining Whether There Is

Reasonable Suspicion Of Criminal Activity

Sufficient To Prolong A Traffic Stop.

The Petitioner asks the Court to resolve what he

suggests is a significant split among the state courts as

to how the odor of raw or fresh marijuana may be considered when determining whether a law enforcement

officer possessed reasonable suspicion to prolong a

traffic stop. Pet. 15-26. He asserts that at least nine

states—Alaska, Colorado, Massachusetts, Michigan,

16

Minnesota, New Hampshire, Oregon, Pennsylvania,

and Vermont—“have determined that the odor of marijuana during a traffic stop, without more, does not

provide reasonable suspicion to prolong the stop . . . ,”

Pet. 15, 17-23, while five states—Arizona, Illinois,

Maryland, Oklahoma, and Rhode Island—have found

that “decriminalization does not change the law with

regard to the odor of marijuana” and hold that odor

alone may establish reasonable suspicion, Pet. 15, 2326.

The Petitioner not only misinterprets the Rhode

Island Supreme Court’s decision in this case, but he

also manufactures the split that he asserts this Court

needs to resolve. The issue in this case is how the odor

of raw or fresh marijuana may be considered in a reasonable suspicion analysis. While the Petitioner suggests that fourteen states have addressed this issue

and reached different conclusions, he also seems to

acknowledge—correctly—that is not really the case.

Three of the cases that the Petitioner cites—one of

which is an intermediate appellate court decision—did

not involve traffic stops, but rather addressed whether

the odor of marijuana established probable cause for

issuance of a search warrant for a home or warehouse,

see State v. Sisco, 373 P.3d 549, 551-54 (Ariz. 2016);

State v. Crocker, 97 P.3d 93, 94-97 (Alaska Ct. App.

2004), or to make an arrest, see In re: D.D., 277 A.3d

949, 955-56, 963-65 (Md. 2022), which the Petitioner

acknowledges. See Pet. 16, 22, 24-25. This case does

not involve the issuance of a search warrant and the

17

Petitioner was not arrested based on the odor of marijuana.

Five of the cases that the Petitioner cites—one of

which is an intermediate appellate court decision that

is being appealed—addressed whether the odor of marijuana established probable cause to search a vehicle

pursuant to the automobile exception to the warrant

requirement of the Fourth Amendment. See State v.

Torgerson, 995 N.W.2d 164, 174-75 (Minn. 2023); People

v. Armstrong, No. 360693, 2022 WL 17169566, at *1-2,

5-6 (Mich. Ct. App. 2022), appeal pending, People v.

Armstrong, 996 N.W. 2d 481 (Nov. 3, 2023); Commonwealth v. Barr, 266 A.3d 25, 41 (Pa. 2021); State v.

Roberson, 492 P.3d 620, 623-24 (Okla. Crim. App.

2021); People v. Zuniga, 372 P.3d 1052, 1059 (Colo.

2016). This case does not involve a search pursuant to

the automobile exception. Moreover, “ ‘reasonable suspicion’ is a less demanding standard than probable

cause and requires a showing considerably less than

preponderance of the evidence. . . .” Illinois v. Wardlow,

528 U.S. 119, 123 (2000).

Including this case, only six of the fourteen cases

that the Petitioner cites addressed the issue of whether

the odor of marijuana may be considered when analyzing whether there is reasonable suspicion to prolong a

traffic stop. See State v. O’Brien, 301 A.3d 370, 377

(N.H. 2023); State v. Moore, 488 P.3d 816, 819-23 (Or.

Ct. App. 2021); State v. Nagel, 232 A.3d 1081, 1087-88

(Vt. 2020); In re O.S., 112 N.E.3d 621, 634 (Ill. App. Ct.

2018); Commonwealth v. Cruz, 945 N.E.2d 899, 907-11

(Mass. 2011). Four cases, including this one, hold that

18

the odor of marijuana is a factor that may be considered in a reasonable suspicion analysis. Only one case,

that of the Illinois Appellate Court, holds that the odor

of marijuana alone is sufficient to establish reasonable

suspicion and that case involved the odor of burnt marijuana, not raw or fresh marijuana. See In re O.S., 112

N.E.3d at 634.

One final point. When summarizing the Rhode Island laws decriminalizing the possession of small

amounts of marijuana, the Petitioner briefly suggests

that law enforcement officers may not rely on the odor

of marijuana to establish reasonable suspicion unless

the officers can identify the quantity of marijuana

emitting the odor. See Pet. 33. None of the cases that

the Petitioner contends correctly decided the reasonable suspicion issue condition the use of odor as a factor

to be considered on the strength of the odor, which varied in each case. See, e.g., O’Brien, 301 A.3d at 373, 377

(“strong odor”); Moore, 488 P.3d at 818-19 (“very strong

odor”); Nagel, 232 A.3d at 1087-88 (“faint smell of

burnt marijuana”). Nor does the Petitioner contend

that quantity is material to the split in state court

decisions that he asserts needs to be addressed.

There simply is no split among state courts of last

resort regarding whether the odor of raw or fresh marijuana may be considered when examining the totality of the circumstances as part of a reasonable

suspicion analysis.

19

IV. The Massachusetts Cases That The Petitioner Cites As Examples Of His Argument

Are Inapposite.

The Petitioner asserts that Massachusetts had a

decriminalization statute similar to Rhode Island’s

and cites eight Massachusetts cases that he claims

exemplify his arguments. Those cases are inapposite.

Only one of the six cases that the Petitioner cites

addressed the issue of whether reasonable suspicion

existed to prolong a traffic stop. See Commonwealth v.

Cordero, 74 N.E.3d 1282, 1289-92 (Mass. 2017). There

is no indication, however, that the trooper who effectuated that traffic stop smelled the odor of marijuana,

either burnt or fresh. See id. The trooper instead prolonged the stop based on the extreme nervousness of

the defendant, what the trooper believed to be “evasive

answers” about where he was traveling from and to,

and the trooper’s opinion that the city in which the defendant lived was “a ‘major drug source city.’ ” Id.

Four of the cases that the Petitioner cites address

whether the odor of burnt or raw or fresh marijuana

establishes probable cause to search a vehicle under

the automobile exception to the warrant requirement

of the Fourth Amendment, which is not at issue here.

See Commonwealth v. Craan, 13 N.E.3d 569, 577-79

(Mass. 2014); Commonwealth v. Overmyer, 11 N.E.3d

1054, 1057-60 (Mass. 2014); Commonwealth v. Daniel,

985 N.E.2d 843, 848-49 (Mass. 2013); Cruz, 945 N.E.2d

at 911-15. Another case addresses the issue of whether

the detection of an odor of burnt marijuana coming

20

from a vehicle alone provides sufficient grounds to initiate a traffic stop. See Commonwealth v. Rodriguez, 37

N.E.3d 611, 617-20 (Mass. 2015). One of the two remaining cases is an intermediate appellate court decision holding that the odor of marijuana, presence of

air fresheners in a car, and nervousness of defendants

do not warrant reasonable suspicion to issue exit orders to conduct “patfrisks,” Commonwealth v. Locke, 51

N.E.3d 484, 489-90 (Mass. App. Ct. 2016), while the

other involved a warrantless search of an individual

sitting on a park bench and his backpack, see Commonwealth v. Jackson, 985 N.E.2d 853, 854-60 (Mass.

2013).

V.

This Case Is A Poor Vehicle For Deciding

Whether The Odor Of Marijuana May Be

Considered When Examining Whether The

Totality Of The Circumstances Establish

Reasonable Suspicion To Prolong A Traffic

Stop.

This case is not the proper vehicle for addressing

whether the odor of marijuana may be used to establish reasonable suspicion for at least three reasons.

First, there is a fundamental threshold question

about whether this Court has jurisdiction to review

this case because of the lack of a final judgment in the

state court. If this Court determines that it lacks jurisdiction for the reasons discussed above, then the underlying merits will not be addressed.

21

Second, the reasonable suspicion necessary to prolong a traffic stop depends on the information that a

law enforcement officer possesses at the time and how

reliable it is. See Navarette, 572 U.S. at 397. That determination is inherently fact-specific. The impact of a

decision as to whether Officer Andreozzi possessed

reasonable suspicion to prolong this traffic stop would

not extend beyond this case.

Third, state laws governing marijuana possession

differ from state to state—some states have decriminalized the possession of small amounts, some have

legalized it, and some have legalized marijuana only

for medical purposes—and, according to the Petitioner,

are presently changing or evolving. See Pet. 26-31. The

Rhode Island Supreme Court only addressed how the

odor of marijuana may be considered in light of amendments to Rhode Island law decriminalizing the possession of less than an ounce of marijuana. The Petitioner

is asking this Court to decide issues that were not

raised or decided in that court, such as whether the

odor of marijuana alone may establish reasonable suspicion in states that have legalized the possession of

small amounts of marijuana.

---------------------------------♦---------------------------------

22

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

PETER F. NERONHA

CHRISTOPHER R. BUSH

Counsel of Record

DEVON FLANAGAN HOGAN

OFFICE OF THE ATTORNEY GENERAL

150 South Main Street

Providence, RI 02903

(401) 274-4400

cbush@riag.ri.gov