State v. Robinson

• Decision Date: 14 April 2021
• Docket Number: A168483
• Citation: 486 P.3d 28,310 Or.App. 644
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Eugene Jamar ROBINSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

310 Or.App. 644

486 P.3d 28

STATE of Oregon, Plaintiff-Respondent,

v.Eugene Jamar ROBINSON, Defendant-Appellant.

A168483

Court of Appeals of Oregon.

Argued and submitted July 17, 2020

April 14, 2021

Erik Blumenthal, 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.

Kirsten M. Naito, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Defendant appeals from a judgment of conviction, following entry of a conditional plea of guilty, for unlawful delivery of oxycodone, ORS 475.830. The evidence against defendant was discovered after a state trooper stopped defendant for speeding and, in the course of that stop, asked defendant questions related to the import and export of marijuana. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence, arguing that (1) the trooper lacked reasonable suspicion to expand the scope of the traffic stop and (2) the search of the car was performed pursuant to an illegal arrest. For the reasons explained below, we conclude that the trial court did not err. We affirm.

We review a trial court's denial of a motion to suppress for legal error. State v. Kelly , 305 Or. App. 493, 494, 469 P.3d 851 (2020). We are bound by the trial court's factual findings so long as they are supported by the evidence in the record. Id . In the absence of express factual findings, we presume that the court resolved any disputed facts consistent with its ultimate conclusion. Id. We state the facts consistent with that standard, drawing from the record created at the suppression hearing.

Senior Trooper Peterson of the Oregon State Police was parked alongside Interstate 5 when, just before midnight, he clocked defendant's speed with his radar equipment at 66 mph in a 55-mph zone. The car had Washington state license plates. Peterson activated his overhead lights to pull the car over and initiated a traffic stop. Defendant, the driver of the car, did not immediately stop; he continued for approximately one mile, exited the freeway, and made several right-hand turns before coming to a complete stop in a Burger King parking lot. The length of time it took for defendant to pull over "heighten[ed Peterson's] senses a little bit" because, in his professional law enforcement experience, such delays typically suggest "criminal activity" such as preparing to elude or "stashing *** a handgun or a controlled substance."

Once defendant came to a complete stop, Peterson approached the passenger side window. When defendant rolled down the window, Peterson smelled a "very strong odor" of "fresh marijuana" emanating from the car. Peterson testified more specifically:

"Q: And why do you describe [the odor] as very strong?

"A: Well, that's because as the window rolls down and the odor was so emanating that from outside the window that I could just smell it extremely strong.

"So I've walked up to a car and smelled a faint odor, which is you could smell it a little bit, but it's not quite there, and that's typically associated with a gram or a couple grams of marijuana. But this marijuana smell was strong and based on my training and experience with seizing several thousand pounds of marijuana that this was a larger quantity than a couple grams of marijuana."

Peterson also testified that he had been doing drug interdiction work for eight years and that, over the course of the year prior to this stop, he had "seized approximately 400 pounds of marijuana."

Peterson asked defendant for his driver's license. Defendant was unable to produce a driver's license, and instead presented a California identification card. When Peterson asked defendant if the car belonged to him, defendant answered that it was a rental. Peterson requested the rental agreement. While defendant was "looking for the rental agreement," Peterson noticed a bag of "loose marijuana" on the front passenger seat and another bag containing what appeared to be "4 to 5 ounces of marijuana" on the floorboard by the backseats.

Defendant could not find the rental agreement, and he explained that it had been his brother who had rented the car two weeks before. According to Peterson, defendant explained that he had been in Washington "and then came back to California, and now [was] heading back to Washington." At that point, Peterson believed that defendant was likely involved in the criminal import/export of marijuana. He testified as to the reasons for that belief:

"I know based on my training and experience that a lot of, we'll just say that marijuana and illegal substances come from different cities out of California. Mostly San Jose, Oakland, Los Angeles, Fresno, Modesto area, a lot of cities hub illegal narcotics and it gets transported up north and east.

"Based on all the observations that I saw, the strong odor of marijuana, the rental vehicle that wasn't rented to him, the marijuana that I could see in plain sight, I felt that there was a very strong odor of marijuana that was possibly associated with a criminal amount of marijuana. I could not tell how much marijuana was in the car.

"Based on [defendant's] statements, him coming from California and going up to Washington, led me to believe that more likely than not he was possibly transporting an illegal amount of marijuana."

Peterson told defendant to "[s]it tight for a minute." He then ran his identification card and requested backup. When he returned, Peterson inquired further as to defendant's travel history. Defendant responded that earlier he had visited his brother in Tacoma, Washington, and then had driven back to California, and that he was now "heading back to [Washington to] take the [rental] car back." He explained that he was going "back and forth" because he was trying to "get a job up there" at a Costco store. Peterson asked if he was "working with Costco right now" or was "in between." Defendant replied that he had "put in [his] two-week notice," and was "going back and forth trying to move up there to their business center at the moment." Peterson asked defendant to clarify that he was "headed up to Tacoma just to return the car" even though he lived in Oakland and did not live in Tacoma. Defendant responded that he was moving up to Tacoma soon with his fiancée.

Peterson then told defendant that his "big concern tonight is the strong odor of marijuana." Defendant explained that he had been "smoking a blunt" earlier and that he had brought the marijuana he had "right here" from California. Peterson asked additional questions of defendant about his travel plans, and then asked specifically whether there was "any more marijuana in the car." Defendant said, "No," showing Peterson the bags of marijuana that were in plain view. Peterson explained that the "import/export [of] marijuana is a crime in the state of Oregon *** depend[ing] on how much you have." He requested, and initially obtained, defendant's permission to search the car. Defendant quickly rescinded his consent to search, however, when Peterson explained that he wished to search "the whole car."

Peterson proceeded to search the car without consent, explaining to defendant that he had

"probable cause because more likely than not you have a criminal amount of marijuana in your car. Okay. Strong odor of marijuana. You confessed to me that you brought marijuana over from state lines from California into Oregon. ***

"You're driving a rental car that's not rented to you. You don't have any rental agreement with it. Okay. Right now, you're in between jobs. In 2012, you were convicted or charged with cultivating marijuana and selling it. Okay.

"So I'm going to search your car on probable [cause.]"

In the trunk of the car, Peterson discovered three 3,4-methylenedioxymethamphetamine (MDMA) pills, a gram of cocaine, $10,000 in cash, and over 500 oxycodone pills. He found a total of 47 grams, approximately 2 ounces, of marijuana. Peterson placed defendant under arrest.

Defendant was charged with unlawful delivery of oxycodone, ORS 475.830, unlawful possession of oxycodone, ORS 475.834, unlawful possession of MDMA, ORS 475.874, and unlawful possession of cocaine, ORS 485.884(2)(a). Before trial, defendant moved to suppress the evidence, challenging the bases for both the extension of the traffic stop and the warrantless search of his car. He argued that, although the initial traffic stop was lawful, the extension of the stop and the investigation concerning marijuana trafficking was not supported by reasonable suspicion. In addition, he argued that Peterson did not have authority to conduct a warrantless search of defendant's car pursuant to the automobile exception.

The trial court denied defendant's motion to suppress as to the evidence of controlled substances found in the trunk of his car.¹ The court found that "defendant was lawfully stopped and that the vehicle was lawfully searched"; thus, the controlled substances found in the car were "lawfully obtained by the state." The court explained its ruling as follows:

"I think it is suspicious that it did take [defendant] a while to pull over. I was watching that video and there were plenty of places to pull over right off I-5 or when he pulled off the exit ***. ***

"So, you know, that caught me as—and certainly, it caught Trooper Peterson as being suspicious and that kind of raised his level of suspicion about [defendant] from the get-go.

"The fact that he said he—that Trooper Peterson smelled a very strong odor of marijuana—he didn't just say strong, he said very—and that he believed it was associated with fresh marijuana. That he did not—[defendant] did not have a driver's license; he just had a California ID card. That he, [defendant], said it was a rental vehicle, but he

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