State v. T. T. (In re T. T.)

• Decision Date: 06 January 2021
• Docket Number: A168707
• Citation: 308 Or.App. 408,479 P.3d 598
• Parties: In the MATTER OF T. T., a Youth. State of Oregon, Respondent, v. T. T., Appellant.
• Court: Oregon Court of Appeals

308 Or.App. 408

479 P.3d 598

In the MATTER OF T. T., a Youth.

State of Oregon, Respondent,

v.T. T., Appellant.

A168707

Court of Appeals of Oregon.

Argued and submitted June 18, 2020.

January 6, 2021

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.

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 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 before us end up being threefold: (1) Did the traffic stop unlawfully turn into a drug investigation when the trooper asked where they were coming from and how long they had been there? (2) If not, did the trooper, at a later point in the traffic stop, have 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, did the trooper develop probable cause to search the car under the automobile exception to the warrant requirement? As discussed below, we conclude that youth failed to preserve his argument that the stop was illegal at the point of the trooper'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 evidence, 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 P.3d 939 (2019). In this case, the juvenile court made express 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 traveling 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 marijuana 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 marijuana. 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 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 furnishing 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 marijuana 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 juvenile court to find youth within its jurisdiction for acts that, if committed by an adult, would violate ORS 475.346 (unlawful delivery of a marijuana item) and ORS 475.341 (unlawful 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 unrelated 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.

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 exception to the warrant requirement, because "Trooper Smith had probable cause to believe that the vehicle contained contraband, a large amount of marijuana based on the smell." After the court denied the motion, youth admitted to additional 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.

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 purpose 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 objectively reasonable. Additionally, youth argues that the probable 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...