State v. T. T.

                                      408

 Argued and submitted June 18, 2020, affirmed January 6, petition for review
                     denied April 22, 2021 (

)


                       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
                                   

     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 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 exception 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, 

, 

 (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 delivered 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
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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 automobile 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 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, 

, 

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

     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, 

.
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 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.
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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.
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 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 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 additional 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 investigative 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
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constitutional justification.” 

. Following that
decision, youth filed a memorandum of additional authorities, asserting that “Arreola-Botello supports youth’s argument 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 officer 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 parties 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 potential 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, 

, 

 (2014)
   ([quoting] Arizona v. Johnson, 

, 

, 

 (2009); Brendlin v. California, 

, 

, 

 (2007)).”
State v. Kamph, 

, 

 (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 federal law and state law diverge with respect to when a passenger 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 reasonable 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 unreasonable 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 constitutional 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, 

, 

 (2012),
aff’d, 

, 

 (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, 

, 

 (1981).
      1. Were the driver and youth seized for a drug investigation 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 establishes “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, 

, 

 (2010).
          A motorist can be stopped based on probable cause
of a traffic infraction, ORS 810.410, and “that stop implicates
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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 therefore is not free unilaterally to end the encounter and leave
whenever he or she chooses.’ ” Arreola-Botello, 

(quoting State v. Rodgers/Kirkeby, 

, 

 (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 reasonably related to the purpose of the traffic stop or supported
by an independent constitutional justification.” State v.
Sheriff, 

, 

 (2020) (citing
Arreola-Botello, 

, and State v. Watson, 

, 

 (2013)). In other words, a traffic 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 activities 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, 

.
         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, 

, 

 (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 freedom and that an officer may not seize a passenger without
a constitutional justification for doing so.” 

 By implication, “the passengers in a car stopped for a traffic or criminal offense would not understand that the officer’s show of
authority in stopping the driver extended to them.” 

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 circumstances, would understand that the officer’s show of authority in stopping the driver extended to them or that the officer was independently restricting their movement apart
from the stop of the driver. 

 (citing State v. Backstrand,

, 

 (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 different 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 passengers were juveniles who were dependent on the driver and
could not simply walk away. Under the totality of the circumstances, 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
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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 combination 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, 

,

 (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 suppression 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 dispute on this record, and we will not review them as plain
error. Cf. Hallam, 

 (reversing, notwithstanding 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 suspicion 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, 

, 

 (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 objectively reasonable under the totality of the circumstances.
State v. Kreis, 

, 

 (2019); see
also Maciel-Figueroa, 

 (“[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 mischief, 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 delivery 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.”

.
         Under Maciel-Figueroa, when considering the question of reasonable suspicion, we must ask reasonable suspicion of what? The Oregon Constitution demands a level
of particularity to the subjective reasonable suspicion possessed 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” generally. The range of the criminal code dealing with narcotics is broad, encompassing many different types of activity.
Just as there is a difference between “criminal mischief,
assault, theft, or kidnapping,” 

 so too, there is a difference between possession, delivery, manufacture, or interstate transport. Reasonable suspicion of one does not create
blanket suspicion for them all.
         Although requiring less than probable cause, reasonable suspicion must be based on more than mere speculation. See State v. Holdorf, 

, 

 (2014) (articulating standard). That is, the state “need
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not prove that the articulated facts give rise to a conclusion with certainty that a crime has occurred or is about to
occur,” but, “based on the specific facts known and articulated by the officer, a reviewing court must conclude that the
officer’s subjective belief could be true, as a matter of logic.”
Maciel-Figueroa, 

 (emphasis omitted).
         An officer’s suspicion of the specific crime or type
of crime cannot be based on a hunch but must be particularized to the individual based on the individual’s own conduct. Kreis, 

 (citing State v. Miglavs, 

, 

 (2004)). The standard incorporates “a
proper regard for the experience that police officers bring
with them when they encounter criminal suspects,” Holdorf,

, 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 reasonable inference based on the officer’s pertinent training
and experience” that the specific crime or type of crime is
afoot. State v. Walker, 

, 

,
rev den, 

 (2016) (internal quotation marks omitted); State v. Aguilar, 

, 

(2020) (“training and experience is not, in and of itself, a specific 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 officer’s permissible reliance on reasonable suspicion of criminal 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, 

.
         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, 

 (internal citation omitted). We therefore begin by examining what the trooper identified as his subjective belief of
422                                                              State v. T. T.

a specific crime—in this case, two crimes. At the suppression 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 nonqualified testimony about the smell of marijuana would fail
to establish reasonable suspicion. However, our reasoning
was dependent upon the legal status of marijuana as contraband 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 prohibits 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, 

, 

, rev den,

 (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 complicit in that crime [of importation], which also would constitute unlawful possession 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 marijuana from California, we discuss them separately.
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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 matter, 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 recreational 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 cardholder and designated primary caregiver may jointly possess up to 24 ounces of usable marijuana. ORS 475B.834(1).
Additionally, a registry identification cardholder and the
designated primary caregiver of the registry identification cardholder may jointly possess up to six mature marijuana plants and 12 or fewer immature marijuana plants.
ORS 475B.831. Furthermore, a grower designated to produce 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, subject 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.” 

 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 cannabinoid concentrates. 

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 assessing whether probable cause exists, see Commonwealth v.
   Overmyer, 469 Mass 16, 

 (2014) (stating 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 emanating 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, 

, 

,
   and People v. Cox, 

, 

. In both Zuniga
   and Cox, we found probable cause supporting an automobile 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. 

 Likewise in Cox, we
   concluded that the positive alert of a drug-detection dog
   was one factor, among many, supporting a finding of probable cause to search a stopped vehicle.
Cite as 

 (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 probable cause. Significantly however, these two recent decisions
   suggest the answer to the latter question is no. We acknowledged that, with the legalization of small amounts of marijuana, 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 criminality,’ but not determinative on its own.”
People v. McKnight, 

, 

, 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 testimony about the smell of marijuana. Previously, the question was binary, yes or no. If marijuana was present, it was
unlawful, though the sanction varied from criminal to violation. The smell thus created a reasonable inference of contraband. 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 threshold is not simply unlawful activity sanctioned at a lower
level, it is entirely lawful conduct.
        b.   Furnishing marijuana to or possession of marijuana 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 marijuana 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 persons under 21).
         Accordingly, smell may be more probative of reasonable suspicion in that context. In this case, the trooper testified 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 passenger 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 vehicle.” 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 specific 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 information 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 

 (2021)                             427

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

, 

 (2014). Where behavior “is consistent with criminal activity, but is not too remarkable, it will
not support a stop.” 

 (internal quotation marks omitted).
          Had all of the vehicle occupants been under the age
of 21, the smell of marijuana would take on different significance. 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 underage passenger. An officer could not reasonably conclude from
the smell of fresh tobacco in a car—or even a pack of cigarettes 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 reasonable suspicion that minor children near the beer were in
possession of that alcohol. This circumstance is not materially 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 vehicle” 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 person, 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 passengers 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 possession 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 possess 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 possibilities involve speculation about missing facts, not reasonable 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 transportation of the marijuana item is intercepted prior to the marijuana 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 

 (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 testified, “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 people 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 typically 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, 

, 

,

 (1980), the Court considered whether information consistent with a drug courier profile could suffice
to create reasonable suspicion for a stop. There, the defendant, Reid, arrived in Atlanta, Georgia, on a commercial
flight originating in Fort Lauderdale, Florida. As passengers 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 purchased 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 testified that Reid nodded his head affirmatively, and that the
other man responded, “yeah, okay.” As the three men reentered 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 unconstitutional:
       “The appellate court’s conclusion in this case that the
   DEA agent reasonably suspected the petitioner of wrongdoing 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 typical of persons unlawfully carrying narcotics. Specifically,
   the court thought it relevant that (1) the petitioner had
Cite as 

 (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 conceal 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 preceded 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, 

.
         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, 

, 494 n 2, 

, 

 (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 defendant, 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, 

, 

, 

 (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, 

, 

, 

 (1989).
         Applying Reid, the Ninth Circuit held that the stop
was unconstitutional because it was based on the profile factors 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 category of presumably innocent travelers’ and those that arguably relate to the ‘particular conduct’ of the defendant. …
   Under Reid, ‘the most general of [courier profile] characteristics cannot support a Terry stop without more particularized 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 establish reasonable suspicion such as to justify a stop under the
Fourth Amendment. Sokolow, 

. 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 

 (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 reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract
   from their evidentiary significance as seen by a trained
   agent.”
Sokolow, 

.
        Justice Marshall, joined by Justice Brennan, dissented, 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 ongoing 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 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.’ …
       “The facts known to the DEA agents at the time they
   detained the traveler in this case are scarcely more suggestive of ongoing criminal activity than those in Reid.”
Sokolow, 

 (Marshall, J., dissenting).
          The dissent warned against the risks of departing from Reid, concluding that profile justification for stops
risked citizens being “subjected to ‘overbearing or harassing’ police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis
of irrelevant personal characteristics such as race.” 

. 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 ‘chameleonlike way of adapting to any particular set of observations.’ ”

.

         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, 

, 

 (1985), rev den, 

 (1986). In reaching that conclusion we cited, with approval, the reasoning of Reid. Id.;
see also State v. Martin, 

, 

(2014) (“The officer’s suspicion must be particularized to the
person and based on the person’s conduct.” (Citing Miglavs,

.)); accord State v. Pichardo, 

,

 (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 context of drug corridors, and profiling-based stops, on multiple
occasions. In State v. Maciel, 

, 

 (2013), the state proffered a series of drug corridor 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 identical 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 passage northbound on I-5 at 4:00 a.m., (2) the third-party registration 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 

 (2021)                                  435

. We held that those factors did not create
reasonable suspicion of drug trafficking:
       “[The officer’s] remaining ‘indicators’ each carry little 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 enterprises 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 conduct—they were insufficient to establish a reasonable suspicion of that criminal activity.”

.

          More recently, in State v. Tapp, 

, 

 (2017), we specifically addressed the
weight accorded to the location of a stop being a “drug corridor.” At the time that the officer in Tapp extended the traffic
stop to investigate drug trafficking, he knew that the defendant 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 characterized 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 trafficking drugs (which could be why [the officer] kept clarifying 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 reasonable to infer that a person is a drug trafficker simply from
    his use of the highway.”

.
         In light of our precedent, four of the factors identified 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 particularized 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 earlier, one of those factors—the smell of marijuana—generally
no longer has the significance it once had as a basis for reasonable 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,

, 

 (2016), rev den, 

 (2017) (“Nor is it
particularly significant in the abstract that defendant had recently left a location
known for drug sales.”); State v. Barber, 

, 

 (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, 

, 

 (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 

 (2021)                              437

role that the odor of marijuana plays in the reasonable suspicion calculus. As the trooper testified in this case, a strong
odor can signal the presence of marijuana, but not necessarily 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 marijuana may be present.
         However, the statute for which the trooper had subjective reasonable suspicion in this case—ORS 475B.227(2)—
is one of the only remaining statutes in Oregon, postdecriminalization, that is not dependent on a specific quantity 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 additional fact in this case. There was another set of circumstances 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,

 (“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 reasonable inference that the vehicle was being used for drug trafficking. 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 anything 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 investigation 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 probable 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 admission, 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, 

, 

 (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 

 (2021)                                 439

Evans, 

, 

 (2017) (quoting
Arizona v. Johnson, 

, 

, 

 (2009)). “Reasonable suspicion” under the Fourth
Amendment “entails a minimal level of objective justification for making a stop.” State v. Wiseman, 

, 

 (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, 

, 

, 

 (1968); see also Sokolow, 

.
         In reviewing whether the officer had reasonable suspicion, 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, 

, 

, 

 (2002). Even if
each fact standing alone might be consistent with innocent
activity, the factors can form reasonable suspicion when
viewed together. Sokolow, 

.
         As discussed above, the Fourth Amendment standard for reasonable suspicion of drug trafficking is, if anything, 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 reasonable 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 probable cause that we reached under the state constitution. See
United States v. Ross, 

, 

 (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 reasonable suspicion of a specific drug offense—the interstate
transport of marijuana, ORS 475B.227(2). Although that reasonable suspicion was based, in part, on profiling information 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 marijuana, while contributing little to the reasonable suspicion 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.