State v. Robinson

                                       644

          Argued and submitted July 17, 2020, affirmed April 14, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   EUGENE JAMAR ROBINSON,
                        Defendant-Appellant.
                    Jackson County Circuit Court
                        17CR64232; A168483
                                    

     Defendant was pulled over for speeding. The state trooper smelled a strong
odor of marijuana coming from the car, and he saw a couple bags of loose marijuana inside the car. He investigated and eventually searched the car, discovering MDMA, cocaine, oxycodone, and cash. Defendant appeals a judgment of
conviction for unlawful delivery of oxycodone, ORS 475.830. He assigns error
to the trial court’s denial of his motion to suppress, arguing that the trooper
(1) unlawfully expanded the scope of the traffic stop and (2) conducted a warrantless search of the car pursuant to an illegal arrest. The state responds, first,
that the expansion of the traffic stop was supported by reasonable suspicion and,
second, that the warrantless search was not conducted incident to arrest but was,
instead, supported by probable cause. Held: The expansion of the traffic stop to
inquire about marijuana was supported by reasonable suspicion and, therefore,
lawful. The Court of Appeals declined to review defendant’s unpreserved argument that the stop was unlawfully expanded when the trooper asked questions
about the rental car and defendant’s travel plans. The court rejected defendant’s
argument that the warrantless search of his car was performed pursuant to an
illegal arrest.
    Affirmed.



    David G. Hoppe, Judge.
   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.
Cite as 

 (2021)   645

  MOONEY, J.
  Affirmed.
646                                         State v. Robinson

        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, 

, 

 (2020). We are bound by the trial court’s factual
findings so long as they are supported by the evidence in
the record. 

 In the absence of express factual findings, we
presume that the court resolved any disputed facts consistent with its ultimate conclusion. 

 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
Cite as 

 (2021)                                647

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
648                                          State v. Robinson

   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] twoweek 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
Cite as 

 (2021)                                              649

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”;

    1
      The trial court granted defendant’s motion as to the contents of a safe box
found in the trunk of his car. That ruling is not in dispute in this case.
650                                            State v. Robinson

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 did not have the rental vehicle paperwork and he said
  his brother … had rented the car for him.
     “He also observed marijuana in the car from plain view,
  a bag on the passenger side front seat and another bag on
  the floorboard behind the passenger seat.
       “When asked—when he asked [defendant] where he was
  coming from, he talked about going back and forth between
  California and Tacoma, Washington. I was even confused.
  … So that to me seemed to—and the trooper articulated
  that he thought that was suspicious as well.
     “So at that point, I do think that there was reasonable
  suspicion to extend the traffic stop. If you look at all of the
  totality of the circumstances, I think that’s where you get
  to the reasonable suspicion. And then … with what he
  saw in terms of the marijuana and the very strong odor of
  marijuana, he at that point believed that he had probable
  cause to search the car for the crime of import/export of
  marijuana.
     “He said … he didn’t know how much marijuana was
  specifically in the car, but he believed it to—that there
  was—that he was possibly transporting the marijuana. In
  fact, [defendant] said that he had brought the marijuana
  from California.
Cite as 

 (2021)                                                 651

       “So I believe that he did have probable cause to search
    the car and that then led to the discovery of the other drugs
    that were ultimately led to [defendant’s] current charges.”
         Defendant entered a conditional plea of guilty to
delivery of oxycodone, reserving his right to appeal the trial
court’s denial of his motion to suppress. The court entered
a judgment of conviction as to that one count and dismissed
the remaining charges.
         Defendant appeals that judgment, assigning error
to the denial of his suppression motion. In briefing, defendant argues that Peterson extended the duration of the
traffic stop in violation of both Article I, section 9, of the
Oregon Constitution and the Fourth Amendment to the
United States Constitution because “he did not have reasonable suspicion to question defendant about marijuana trafficking.” In the alternative, defendant argues that his arrest
was not supported by probable cause, which, in turn, made
the warrantless search of his car illegal.2
         The state responds that the trial court did not err
in denying defendant’s motion to suppress. The state argues
that the extension of the stop was supported by Peterson’s
reasonable suspicion, which he formed by considering and
relying on the following facts:
    “(1) [D]efendant took a long time to stop, which in Peterson’s
    experience, is ‘associated with possible criminal activity’;
    (2) defendant did not have a valid driver’s license, but was
    driving a rental car without rental paperwork; (3) defendant was traveling from California, and provided a convoluted story for why he was traveling north, in a rental
    car; (4) there were two separate bags of marijuana in the
    vehicle; and (5) there was a ‘very strong’ odor of fresh marijuana that did not, in Peterson’s experience, match up to
    the amount visible in the vehicle.”
    2
      We note that, during the suppression hearing, defendant argued that
Peterson lacked authority to search the vehicle pursuant to the automobile exception because the stop was for a traffic violation. At the time of that hearing, the
Oregon Supreme Court was reviewing our ruling in State v. Bliss, 

, 

 (2017), aff’d, 

, 

 (2018), which held that
the automobile exception adopted in State v. Brown, 

, 

(1986), applies when an officer makes a lawful stop for a traffic violation and then
develops probable cause to search the vehicle for evidence of criminal activity.
Our decision was affirmed, Bliss, 

, and defendant does not renew
that argument on appeal.
652                                                        State v. Robinson

As to defendant’s argument that the warrantless search was
illegal, the state responds that defendant misconstrues the
record because his arrest occurred after Peterson searched
the car. In other words, the search was not, in fact, conducted
incident to arrest. It was conducted after Peterson developed probable cause to believe that defendant was engaged
in the criminal import/export of marijuana.3
        After the parties submitted their briefs, the Oregon
Supreme Court issued its decision in State v. Arreola-Botello,

, 

 (2019), holding that,
    “for the purposes of 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.
    Accordingly, an officer is limited to investigatory inquiries
    that are reasonably related to the purpose of the traffic stop
    or that have an independent constitutional justification.”

 (footnote omitted). With the benefit of that decision,
defendant now argues that Peterson expanded the scope of
the traffic stop in violation of Article I, section 9, when he
asked defendant questions about matters unrelated to the
purpose of the stop.
         Under our “first things first” doctrine, “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. T. T.,

, 

 (2021) (ellipses in T. T.)
(quoting State v. Babson, 

, 

(2012), aff’d, 

, 

 (2014)). Thus, we first
address defendant’s arguments based on Article I, section 9,4
    3
      The state correctly notes that defendant has not raised any argument on
appeal concerning the lawful application of the automobile exception to the warrant requirement and we, therefore, do not address it further. See also 310 Or App
at 651 n 2.
    4
      Article I, section 9, 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.”
Cite as 

 (2021)                             653

beginning with the argument that Peterson’s inquiry
related to the criminal import and export of marijuana was
not supported by reasonable suspicion.

         In his memorandum of additional authorities, and
again at oral argument, defendant argues that, under
Arreola-Botello, Peterson unlawfully expanded the scope
of the traffic stop “[w]hen he veered into asking defendant
questions about his travel itinerary and rental car.” The
state argues that that issue is unpreserved because defendant did not argue below, or in his initial briefing, that the
questions about the rental car or travel itinerary were unrelated to the purpose of the traffic stop. We agree with the
state that defendant’s argument that Peterson unlawfully
expanded the scope of the traffic stop when he asked questions about the rental car and defendant’s travel plans is
unpreserved. See Peeples v. Lampert, 

, 

 (2008) (to be raised and considered on appeal,
an issue “ordinarily must first be presented to the trial
court”).

          We ordinarily refrain from proceeding to the question of plain error in the absence of an explicit request to do
so. See, e.g., State v. Hammond, 

, 

 (2008) (not addressing the question of plain error
where the “defendant does not argue that the matter in dispute satisfies the requisites of ‘plain error’ as prescribed
in State v. Brown, 

, 

 (1990),
and that substantial considerations militate in favor of the
affirmative exercise of the discretion”). However, in rare situations, we proceed to that question, despite no request by
the appellant, where there have been significant changes
in the law between the time of the trial court ruling and
the appeal. See State v. Hallam, 

, 

 (2020) (so stating). Here, after the trial court ruled,
the Oregon Supreme Court decided Arreola-Botello, which
shifted the focus of our analysis from the unlawful extension of a traffic stop, see State v. Rodgers/Kirkeby, 

, 

 (2010), to the proper scope of a traffic stop,
eliminating our “unavoidable lull” doctrine, Arreola-Botello,

. Hence, we consider whether the argument
654                                         State v. Robinson

defendant now makes under the subsequent case law qualifies as one of “plain error.”
         For an error to be “plain,” it must satisfy three
requirements: it is (1) “an error of law,” (2) “obvious and not
reasonably in dispute,” and (3) “apparent on the record without
requiring the court to choose among competing inferences.”
State v. Vanornum, 

, 

 (2013). If
those requirements are met, we then consider whether to
exercise our discretion to remedy the error. Ailes v. Portland
Meadows, Inc., 

, 

 (1991).
          In T. T., we held that the youth’s argument about
whether certain questions exceeded the purpose of a traffic
stop, in light of Arreola-Botello, were “novel” and thus “not
obvious and beyond reasonable dispute.” 

.
It is likewise neither obvious nor reasonably beyond dispute
that Peterson exceeded the purpose of the traffic stop here
when he asked defendant questions about his travel plans
and the rental car. 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). Here,
the error was not plain, and we consider only the issue that
was before the trial court—whether Peterson unlawfully
expanded the traffic stop by questioning defendant about
marijuana.
          “Under Article I, section 9, ‘an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity.’ ” State v.
Arivett, 

, 

 (2021) (quoting
State v. Barber, 

, 89, 

 (2016)). The
standard for reasonable suspicion is met “when an officer
can point to specific and articulable facts that give rise to a
reasonable inference that the defendant committed or was
about to commit a specific crime or type of crime.” State v.
Maciel-Figueroa, 

, 

 (2017). The
officer’s subjective belief that a crime was or is about to be
committed must be “objectively reasonable under the totality of the circumstances.” State v. Bowen, 

, 

 (2021) (citing State v. Kreis, 

, 

 (2019)).
Cite as 

 (2021)                                655

         Here, the parties dispute whether Peterson had
reasonable suspicion that defendant had committed or
was about to commit the crime of unlawful importation or
exportation of marijuana under ORS 475B.227. That statute provides that “[a] person may not import marijuana
items into this state or export marijuana items from this
state.” ORS 475B.227(2). A violation of that section enhances
from a violation to a criminal offense if “the importation or
exportation … [c]oncerns an amount of marijuana items
that exceeds the applicable maximum amount specified
in ORS 475B.337(1)(a) to (f).” ORS 475B.227(4). Here, the
relevant statutory provision is ORS 475B.337(1)(c), which
provides:
   “[I]t is unlawful for any person 21 years of age or older to
   possess, knowingly or intentionally:
      “…
      “(c) More than eight ounces of usable marijuana.”
(Emphasis added.)
         The state argues that “Peterson’s observations,
combined with his training and experience,” give rise to
the reasonable inference that defendant had imported, or
was about to export, more than the permissible amount of
marijuana under Oregon law. According to the state, at the
time that Peterson asked defendant about the marijuana
odor, Peterson had formed reasonable suspicion based on the
following facts: (1) defendant’s delay in stopping; (2) defendant’s lack of a valid driver’s license; (3) defendant’s statement that he was driving a rental car and his inability to
produce the rental agreement; (4) defendant’s travel plans
and his “convoluted story for why he was traveling north, in
a rental car”; (5) the two separate bags of marijuana in plain
view; and (6) the “very strong” odor of “fresh marijuana.” We
consider those facts individually, and in combination, as we
assess the reasonableness of Peterson’s suspicion that defendant had engaged, or was preparing to engage, in the crime
of marijuana import/export.
        We begin by acknowledging that none of the facts
upon which the state relies would be sufficient, alone, to
support reasonable suspicion to expand the traffic stop to
656                                                        State v. Robinson

investigate defendant for criminal import/export of marijuana.5 Even the fact that Peterson observed two separate
bags of marijuana in plain view in defendant’s car may not,
by itself, support reasonable suspicion of the crime of marijuana import/export. And, finally, we recently concluded
that the smell of some marijuana alone is not enough to support a finding of reasonable suspicion. As we explained:
    “[T]he smell of marijuana … generally no longer has the
    significance it once had as a basis for reasonable suspicion,
    in light of decriminalization. … [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.”
T. T., 

. The question is whether the
facts known to Peterson at the time he began asking defendant about marijuana, viewed together, support a conclusion that he had reasonable suspicion that defendant had
committed or was about to commit the crime of marijuana
import/export.
         Oregon’s marijuana laws have been in a state of flux.
Our decisions involving marijuana have necessarily evolved
with the changing law. Our analysis of the facts known
to Peterson, an experienced law enforcement officer, and
whether those facts combined to support reasonable suspicion of criminal marijuana import/export is best explained
by reference to our recent cases concerning the same question. In T. T., we concluded that the state trooper had reasonable suspicion of a violation of the same statute at issue
here, which, at the time, prohibited the “importation [and]
exportation of any amount of marijuana.” 308 Or App at 428,
    5
      A delay in stopping does not create reasonable suspicion of drug trafficking.
See State v. Decker, 

, 

 (2018). An unusual story
about travel plans, in the absence of information connecting the “confus[ing]”
story to the crime of drug trafficking, does not support reasonable suspicion for
the unlawful transport of marijuana. State v. Maciel, 

,

 (2013). Driving a rental car is not sufficient, by itself, to support
reasonable suspicion of trafficking marijuana. Arivett, 

; see also
Bowen, 

; T. T., 

. The combination of a rental
car and information that the driver is traveling from another state is insufficient
to establish reasonable suspicion without something more. T. T., 

. The fact that a person is driving a car registered to a third party on an interstate highway does not, by itself, create reasonable suspicion of drug trafficking.
State v. Meza-Garcia, 

, 

 (2013).
Cite as 

 (2021)                                               657

437-38 (emphasis added). Much like this case, the trooper in
T. T. stopped the defendant’s car on Interstate 5 for speeding. Id. at 411. After the car pulled over, the trooper walked
over to the passenger side of the car and smelled a “strong
odor of green, non-smoked marijuana.” Id. The driver stated
that the car was a rental and that he and the passengers
were coming from California where they had been for “a couple of days.” Id. The trooper checked the rental agreement
for the car and learned that it had been rented “the day
before [at] the Portland airport.” Id. At that point, the officer
asked the driver to “step out of the car.” Id.
          We concluded that those facts were sufficient to
support the reasonable inference that the occupants of the
car were engaged in drug trafficking. Id. at 437-38. Those
facts included: (1) “the presence of marijuana”; (2) “what the
trooper knew, from his training and experience, about the
use of rental cars to traffic drugs along the I-5 corridor”;
(3) the fact that “the car had been rented less than 24 hours
earlier at the Portland airport”; (4) “the unusually quick
roundtrip”—“approximately seven hours each direction—in
the same day”; and (5) “the driver’s attempt[ ] to conceal how
long they had been in [California].”6 Id. at 437.
         In contrast, in Bowen, we concluded that the trooper
did not have reasonable suspicion to believe that the defendant had committed the crime of unlawful delivery of marijuana. 308 Or App at 511. The trooper stopped the defendant for a traffic violation “while driving on Highway 140
in Lake County.” Id. at 507. The “[d]efendant was driving a
rental car from Grants Pass, Oregon, to Denver, Colorado.”
Id. at 506-07. The trooper smelled the “obvious odor of marijuana” emanating from the car. Id. at 507 (internal quotation
marks omitted). The defendant appeared nervous when he
handed the trooper his driver’s license and the rental agreement. Id. Based on his training and experience, “the trooper
knew that Grants Pass is a ‘source city’ for marijuana, that
Colorado has a market for ‘low-cost high-quality marijuana
    6
      We note that, because the statute at the time prohibited the importation or
exportation of any amount of marijuana, our analysis in T. T. did not focus on the
trooper’s description of the smell; rather, “the presence of marijuana,” in combination with the facts mentioned, was sufficient to support reasonable suspicion of
marijuana trafficking. T. T., 

.
658                                            State v. Robinson

out of Oregon’ and that people ‘commonly’ use rental cars
to unlawfully transport marijuana to avoid the risk of forfeiting their own vehicles if caught.” 

 Based on that information, the trooper believed he had reasonable suspicion to
question the defendant about marijuana. 

 We concluded
that those facts were insufficient to support reasonable
suspicion that the defendant was engaged in the crime of
import/export of marijuana. 

. We explained:
   “[T]his case comes down to the marijuana odor that the
   trooper smelled upon approaching defendant’s car. The
   crux of the issue is whether the odor of marijuana tipped
   the facts here into the realm of reasonable suspicion. We
   conclude that it did not—at least on this record, where
   the evidence was sparse as to what the trooper actually
   smelled. … At the time of the stop here, an adult could
   legally possess up to eight ounces of usable marijuana, …
   and could legally deliver up to one ounce of homegrown
   marijuana to another adult.
        “… [W]e note that, beyond the odor of marijuana
   being ‘obvious’ when the trooper approached defendant’s
   car, there was no evidence as to how strong the odor was.
   … There also was no evidence as to whether the odor was
   of fresh marijuana (as the trooper’s suspicion of delivery
   might suggest) or burnt marijuana (as his consideration
   whether defendant was impaired or intoxicated might suggest). … Finally, there was no evidence that the trooper
   had training or experience that led him to recognize what
   he smelled as fresh marijuana in a larger quantity.”

.
         This case is more like T. T. than it is like Bowen.
The facts, perceived and analyzed by a trained law enforcement officer, included more than just a vague reference to an
odor of marijuana. In explaining why he had reasonable suspicion that defendant had, or was about to, import or export
marijuana in criminal amounts, Peterson described each
of the facts of which he was aware and how, given his law
enforcement experience, they fit together. Peterson knew
from his training that rental cars are commonly used to
transport drugs originating in Northern California “hub[s]”
across state lines. He considered that there was a long delay
between the time that he activated his overhead lights on
Cite as 

 (2021)                             659

I-5 and the time that defendant eventually stopped at the
Burger King; defendant did not have a driver’s license;
defendant claimed that the car was a rental, but he could not
produce a rental agreement; defendant provided him with a
convoluted explanation for his trips back and forth between
Washington and California; he could see what looked to be
several ounces of marijuana in plain view in the car; and
he smelled the “very strong” and “extremely strong” odor of
marijuana coming from defendant’s car.
         Peterson testified that his training and experience
with drug interdiction work was extensive, including seizing hundreds of pounds of marijuana in the previous year.
And he testified that, given the facts of which he was aware,
he believed that the amount of marijuana in defendant’s car
may have been “a criminal amount” from the standpoint of
marijuana import/export. That was enough to establish that
Peterson had reasonable suspicion that defendant was in
violation of ORS 475B.227. Thus, under Article I, section 9,
the extension of the traffic stop to ask questions about marijuana was lawful.
          The extension of the traffic stop was also lawful
under the Fourth Amendment. Absent reasonable suspicion,
a traffic stop justified only by the observed traffic violation
“become[s] unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket
for the violation.” Rodriguez v. United States, 

, 

, 

 (2015) (internal quotation marks omitted) (police may not extend an otherwise
completed traffic stop, absent reasonable suspicion, in order
to conduct a “dog sniff”). When other factors combine, as
they did here and as we have already discussed, to create
reasonable suspicion of criminal activity, extension of the
traffic stop under the Fourth Amendment is permitted.
         We turn briefly to defendant’s argument that
Peterson was not authorized to conduct a warrantless search
of his car incident to his arrest. Defendant argues that,
because Peterson did not have probable cause to arrest him
for the crime of marijuana import/export, the warrantless
search of his car was illegal. The state correctly argues that
the search occurred prior to defendant’s arrest and that,
660                                        State v. Robinson

in fact, the search was conducted on the basis of probable
cause existing at the time of the search and the automobile
exception to the warrant requirement. The trial court found
that Peterson had searched defendant’s car pursuant to that
exception and based upon probable cause of drug trafficking.
The arrest came after Peterson found cocaine in the trunk,
and we do not understand the state to rely on the arrest to
support the warrantless search. Defendant does not renew
his argument here regarding the lawfulness of the search on
the basis of probable cause existing at the time of the search
or the applicability of the automobile exception. Because
that question is not before us, we do not address it.
         We conclude that the trial court did not err when it
denied defendant’s motion to suppress. Peterson had reasonable suspicion of the criminal import/export of marijuana
based on the very strong smell of fresh marijuana in combination with all the other factors we have discussed. The
extension of the traffic stop was lawful under both Article I,
section 9, and the Fourth Amendment. And, finally, we
reject defendant’s argument that the warrantless search of
his car was unlawful as a search incident to arrest.
        Affirmed.