State v. Moore
| Decision Date | 28 April 2021 |
| Docket Number | A169681 |
| Citation | 311 Or.App. 13,488 P.3d 816 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Randall MOORE, Defendant-Appellant. |
Francis C. Gieringer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
Defendant appeals a judgment of conviction for unlawful possession of marijuana, ORS 475B.337(2). Defendant was charged with that crime based on evidence obtained during a traffic stop. Before trial, defendant filed a motion to suppress that evidence, which the trial court denied. On appeal, defendant raises two assignments of error concerning that denial, arguing that (1) the traffic stop was unlawfully extended when the trooper began questioning defendant about an odor of unburnt marijuana—questioning that the parties agree was unrelated to the purpose of the traffic stop—without reasonable suspicion that defendant was committing a crime; and (2) the trial court should have suppressed defendant's statements elicited by the trooper's questioning during the extension of the stop. For the reasons that follow, we agree with defendant. We reject defendant's remaining assignment of error as noted below.1 Accordingly, we reverse and remand.
"In reviewing the denial of a motion to suppress evidence, we are bound by the trial 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 P.3d 939 (2019) (citation and internal quotation marks omitted). In accordance with that standard, we state the following facts.
Defendant was driving on Highway 20, traveling from Ontario to Grants Pass. Oregon State Trooper Caldwell stopped defendant's car for speeding. Caldwell approached the car on the passenger side, advised defendant as to the reason for the stop, and obtained defendant's license and insurance information. While defendant looked for the vehicle registration, Caldwell noticed a "very strong odor" of marijuana coming from defendant's car, which Caldwell recognized from his training and experience as "green marijuana, not burnt."
Caldwell mentioned the marijuana odor to defendant. Defendant responded that he had "less than an ounce" of marijuana in a five-inch by five-inch ceramic container resting on the passenger seat. Caldwell asked defendant, "Would you please mind showing it to me?" Defendant "became very sad" and "deflated," as though Caldwell "just took [defendant's] puppy or something." Defendant then opened the container, whereupon Caldwell "saw what in [his] training and experience was marijuana." Caldwell asked defendant to "please hand the container to me." Caldwell then returned to his patrol vehicle with the container, "took stock of how much marijuana might be in that container," and, based on his training and experience, judged that "it was well more than an ounce."2 As a result, Caldwell confiscated defendant's marijuana and "issued [defendant] a citation for a violation on the marijuana."
Defendant was subsequently charged with unlawful possession of marijuana, ORS 475B.337(2), based on the marijuana Caldwell discovered during the traffic stop.3 Before trial, defendant filed a motion to suppress "all evidence from Trooper Caldwell's unlawful conduct," arguing, among other points, that "the traffic stop [of defendant] was unlawfully extended," and that "the odor of green marijuana cannot give rise to reasonable suspicion." In response, the state argued that "this was not an unlawful extension of the stop," and "the fact that Trooper Caldwell could smell the overwhelming odor of marijuana in the car, and there was one sole occupant of the car, that that is reasonable suspicion for a stop."
Notably, at the suppression hearing, Caldwell testified that his nose had been broken three times, which resulted in his inability to smell "very small, minute amounts" of marijuana, such as "half a joint in an ashtray."
Caldwell also testified that he cannot distinguish by smell "three-quarters of an ounce from an ounce-and-a-half," nor can he precisely determine an amount of marijuana based on its smell. Nevertheless, Caldwell explained that the odor he smelled during the stop "was very strong, and usually that indicates that there's more than just a very small amount."
After hearing testimony and argument, the trial court ultimately denied defendant's motion and explained its decision in a letter opinion:
On appeal, defendant argues that "the strong odor of marijuana, absent some other indicia of wrongdoing, did not permit Caldwell to extend the stop by asking to see the contents of the ceramic container." In response, the state argues that "the strong odor of marijuana permitted the inference that defendant possessed a significant amount of marijuana," and that "the remaining things known to Caldwell, including his training and experience, his inability to smell small amounts of marijuana, and defendant's shifting demeanor, supported Caldwell's reasonable belief that defendant possessed an unlawful amount of marijuana." In short, the parties’ dispute centers on whether Caldwell's extension of the traffic stop to ask unrelated questions about marijuana was supported by reasonable suspicion that defendant unlawfully possessed marijuana.
Under Article I, section 9, of the Oregon Constitution, "all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations." Arreola-Botello , 365 Or. at 712, 451 P.3d 939. Accordingly, "an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop" and may not "ask unrelated questions, unless the officer can justify the inquiry on other grounds." Id. Thus, to be lawful, "an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity." State v. Hallam , 307 Or. App. 796, 806, 479 P.3d 545 (2020) (citation and internal quotation marks omitted).
The reasonable suspicion standard "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 of crime." State v. Maciel-Figueroa , 361 Or. 163, 165, 389 P.3d 1121 (2017). "The officer must have a subjective belief that the person stopped has committed, or is about to commit, a crime, and that belief must be objectively reasonable under the totality of the circumstances." State v. Kreis , 365 Or. 659, 665, 451 P.3d 954 (2019).
In this case, we do not understand the parties to dispute that Caldwell subjectively believed that defendant possessed an unlawful amount of marijuana. Thus, our task on review is to determine whether Caldwell's belief was objectively reasonable under the totality of the circumstances.
On appeal, the state contends that four facts contributed to Caldwell's reasonable suspicion: (1) Caldwell "has extensive experience investigating marijuana crimes and can recognize the odor of unburnt marijuana"; (2) Caldwell observed a "very strong" odor of marijuana coming from defendant's vehicle; (3) Caldwell cannot smell "very small, minute amounts" of marijuana, such as "half a joint in an ashtray"; and (4) defendant became "sad" and "deflated" when Caldwell stated that he could smell marijuana. As we conclude below, those facts—considered in their totality—do not give rise to an objectively reasonable suspicion that defendant possessed an unlawful quantity of marijuana.
The first three facts advanced by the state—i.e. , Caldwell's ability to recognize the odor of unburnt marijuana, his observation of a "very strong" odor of unburnt marijuana coming from defendant's vehicle, and his inability to detect "very small, minute amounts" of marijuana—are interrelated. We conclude that those facts—without some additional indicia that an unlawful amount of marijuana might have been present—do not support a reasonable suspicion that defendant possessed an unlawful quantity of marijuana.
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In re D.D.
...of burnt or unburnt marijuana, standing alone, no longer provides either reasonable suspicion or probable cause."); State v. Moore , 311 Or.App. 13, 488 P.3d 816, 821 (2021) (although a "very strong" odor of unburnt marijuana may be consistent with criminal activity, because adults may lega......
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In re D.D.
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