inline"> 13 Argued and submitted August 10, 2020; conviction reversed and remanded, otherwise affirmed April 28, 2021 STATE OF OREGON, Plaintiff-Respondent, v. RANDALL MOORE, Defendant-Appellant. Harney County Circuit Court 18CR41850; A169681 488 P3d 816

Defendant appeals a judgment of conviction for unlawful possession of marijuana, ORS 475B.337(2). Defendant was charged with that crime based on evidence obtained during a traffic stop. On appeal, defendant assigns error to the
trial court’s denial of his motion to suppress that evidence, arguing that the
trooper unlawfully extended the traffic stop by questioning defendant about an
odor of unburnt marijuana without reasonable suspicion that defendant was committing a crime. The state argues that, based on a “very strong” marijuana odor
and related facts, the trooper had reasonable suspicion that defendant unlawfully
possessed marijuana. Held: The trooper’s testimony relating to the “very strong”
odor of “more than just a very small amount” of “unburnt” marijuana—in the
absence of any additional indicia that the quantity of marijuana that might have
been present was unlawful—is insufficient to support an objectively reasonable
suspicion that defendant possessed an unlawful amount of marijuana. Therefore,
the trial court erred when it denied defendant’s motion to suppress the evidence.
Conviction reversed and remanded; otherwise affirmed.

W. D. Cramer, Jr., Judge.
Francis C. Gieringer, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
14 State v. Moore

TOOKEY, J.
Conviction reversed and remanded; otherwise affirmed.
Aoyagi, J., dissenting.
Cite as

311 Or App 13

 (2021)                                                   15

           TOOKEY, J.
         Defendant appeals a judgment of conviction for
unlawful possession of marijuana, ORS 475B.337(2). Defendant was charged with that crime based on evidence obtained
during a traffic stop. Before trial, defendant filed a motion
to suppress that evidence, which the trial court denied. On
appeal, defendant raises two assignments of error concerning that denial, arguing that (1) the traffic stop was unlawfully extended when the trooper began questioning defendant about an odor of unburnt marijuana—questioning
that the parties agree was unrelated to the purpose of the
traffic stop—without reasonable suspicion that defendant
was committing a crime; and (2) the trial court should have
suppressed defendant’s statements elicited by the trooper’s
questioning during the extension of the stop. For the reasons
that follow, we agree with defendant. We reject defendant’s
remaining assignment of error as noted below.1 Accordingly,
we reverse and remand.
         “In reviewing the denial of a motion to suppress evidence, we are bound by the trial court’s factual findings to
the extent that those findings are supported by evidence in
the record.” State v. Arreola-Botello,

365 Or 695, 697

451 P3d 939

 (2019) (citation and internal quotation marks omitted). In accordance with that standard, we state the following facts.
         Defendant was driving on Highway 20, traveling
from Ontario to Grants Pass. Oregon State Trooper Caldwell
stopped defendant’s car for speeding. Caldwell approached
the car on the passenger side, advised defendant as to the
reason for the stop, and obtained defendant’s license and
insurance information. While defendant looked for the vehicle registration, Caldwell noticed a “very strong odor” of
marijuana coming from defendant’s car, which Caldwell recognized from his training and experience as “green marijuana, not burnt.”

    1
      Defendant also argues that the trial court erred by failing to acquit him,
because his personal vehicle does not qualify as a “public place” for purposes of
ORS 475B.337(1)(b) and ORS 475B.015(34). Defendant acknowledges that he did
not preserve that error but urges us to review the matter as plain error. We reject
that assignment without further discussion.
16                                                           State v. Moore

         Caldwell mentioned the marijuana odor to defendant. Defendant responded that he had “less than an ounce”
of marijuana in a five-inch by five-inch ceramic container
resting on the passenger seat. Caldwell asked defendant,
“Would you please mind showing it to me?” Defendant
“became very sad” and “deflated,” as though Caldwell “just
took [defendant’s] puppy or something.” Defendant then
opened the container, whereupon Caldwell “saw what in [his]
training and experience was marijuana.” Caldwell asked
defendant to “please hand the container to me.” Caldwell
then returned to his patrol vehicle with the container, “took
stock of how much marijuana might be in that container,”
and, based on his training and experience, judged that “it
was well more than an ounce.”2 As a result, Caldwell confiscated defendant’s marijuana and “issued [defendant] a citation for a violation on the marijuana.”
         Defendant was subsequently charged with unlawful possession of marijuana, ORS 475B.337(2), based on
the marijuana Caldwell discovered during the traffic stop.3
Before trial, defendant filed a motion to suppress “all evidence from Trooper Caldwell’s unlawful conduct,” arguing,
among other points, that “the traffic stop [of defendant] was
unlawfully extended,” and that “the odor of green marijuana cannot give rise to reasonable suspicion.” In response,
the state argued that “this was not an unlawful extension
of the stop,” and “the fact that Trooper Caldwell could smell
the overwhelming odor of marijuana in the car, and there
was one sole occupant of the car, that that is reasonable suspicion for a stop.”
         Notably, at the suppression hearing, Caldwell testified that his nose had been broken three times, which
resulted in his inability to smell “very small, minute
amounts” of marijuana, such as “half a joint in an ashtray.”

    2
      An Oregon State Police forensic lab later analyzed defendant’s marijuana,
reporting a net weight of approximately 139.51 grams (i.e., approximately 4.9
ounces) of dried, green marijuana.
    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 the home.
    3
      Defendant was also charged with a speeding violation under ORS 811.111.
That charge was ultimately dismissed.
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311 Or App 13

 (2021)                                         17

Caldwell also testified that he cannot distinguish by smell
“three-quarters of an ounce from an ounce-and-a-half,” nor
can he precisely determine an amount of marijuana based on
its smell. Nevertheless, Caldwell explained that the odor he
smelled during the stop “was very strong, and usually that
indicates that there’s more than just a very small amount.”
         After hearing testimony and argument, the trial
court ultimately denied defendant’s motion and explained
its decision in a letter opinion:
   “[T]he only legal issue that is uncertain in my view is
   whether the smell of marijuana constitutes reasonable suspicion to investigate further to see if the amount of marijuana is a criminal quantity.
      “* * * * *
       “I find that the officer had ‘reasonable suspicion’ as soon
   as he smelled the green marijuana to investigate further
   for crimes involving possessing quantities/amounts of marijuana that would be illegal. That is a separate and distinct
   basis that would allow the traffic stop to be extended to
   investigate for a crime.”
        On appeal, defendant argues that “the strong odor
of marijuana, absent some other indicia of wrongdoing, did
not permit Caldwell to extend the stop by asking to see the
contents of the ceramic container.” In response, the state
argues that “the strong odor of marijuana permitted the
inference that defendant possessed a significant amount
of marijuana,” and that “the remaining things known to
Caldwell, including his training and experience, his inability to smell small amounts of marijuana, and defendant’s
shifting demeanor, supported Caldwell’s reasonable belief
that defendant possessed an unlawful amount of marijuana.” In short, the parties’ dispute centers on whether
Caldwell’s extension of the traffic stop to ask unrelated
questions about marijuana was supported by reasonable
suspicion that defendant unlawfully possessed marijuana.
         Under Article I, section 9, of the Oregon Constitution,
“all investigative activities, including investigative inquiries,
conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational
18                                             State v. Moore

limitations.” Arreola-Botello,

365 Or at 712

. Accordingly,
“an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop” and may
not “ask unrelated questions, unless the officer can justify
the inquiry on other grounds.”

Id.

 Thus, to be lawful, “an
extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal
activity.” State v. Hallam,

307 Or App 796, 806

479 P3d 545

(2020) (citation and internal quotation marks omitted).
         The reasonable suspicion standard “is met when
an officer can point to specific and articulable facts that
give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of
crime.” State v. Maciel-Figueroa,

361 Or 163, 165

389 P3d 1121

 (2017). “The officer must have a subjective belief that
the person stopped has committed, or is about to commit, a
crime, and that belief must be objectively reasonable under
the totality of the circumstances.” State v. Kreis,

365 Or 659, 665

451 P3d 954

 (2019).
         In this case, we do not understand the parties to dispute that Caldwell subjectively believed that defendant possessed an unlawful amount of marijuana. Thus, our task on
review is to determine whether Caldwell’s belief was objectively reasonable under the totality of the circumstances.
        On appeal, the state contends that four facts contributed to Caldwell’s reasonable suspicion: (1) Caldwell “has
extensive experience investigating marijuana crimes and
can recognize the odor of unburnt marijuana”; (2) Caldwell
observed a “very strong” odor of marijuana coming from
defendant’s vehicle; (3) Caldwell cannot smell “very small,
minute amounts” of marijuana, such as “half a joint in an
ashtray”; and (4) defendant became “sad” and “deflated”
when Caldwell stated that he could smell marijuana. As we
conclude below, those facts—considered in their totality—
do not give rise to an objectively reasonable suspicion that
defendant possessed an unlawful quantity of marijuana.
        The first three facts advanced by the state—i.e.,
Caldwell’s ability to recognize the odor of unburnt marijuana, his observation of a “very strong” odor of unburnt
marijuana coming from defendant’s vehicle, and his inability
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 (2021)                                       19

to detect “very small, minute amounts” of marijuana—are
interrelated. We conclude that those facts—without some
additional indicia that an unlawful amount of marijuana
might have been present—do not support a reasonable suspicion that defendant possessed an unlawful quantity of
marijuana.
        “Marijuana has been legal for recreational use
under state law since 2015.” State v. Bowen,

308 Or App 505, 510

481 P3d 370

 (2021). “[O]ur historic treatment of all
marijuana odors as equal for purposes of reasonable suspicion was grounded in ‘the legal status of marijuana as contraband in any amount,’ a premise that no longer applies,
requiring us to adjust our analysis accordingly going forward.”

Id.

 (quoting State v. T. T.,

308 Or App 408, 437

479 P3d 598

(2021) (emphasis in original)). Thus, as we recently
explained in T. T.,
“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 role that the odor of
marijuana plays in the reasonable suspicion calculus. * * *
[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.”
308 Or App at 437 (emphasis added).
In T. T., we concluded, among other things, that a
state trooper did not have reasonable suspicion to believe
that the defendant unlawfully possessed marijuana. Id. at
428. The defendant in T. T. was one of two juvenile passengers in a car driven by an adult. Id. at 411. The trooper in
T. T. stopped the defendant’s car for speeding. Id. When the
trooper approached the passenger-side window, he smelled
a “pretty strong odor” of “green, non-smoked marijuana,”
id. at 426, but he did not see any marijuana inside the car,
id. at 411. The trooper acknowledged that “he was not able
to ‘tell exactly how much marijuana was present by odor
alone,’ ” but that a strong odor of marijuana “ ‘typically means
that there’s a larger quantity than a user amount,’ ” which
the trooper described as “ ‘a couple of grams, like what would
20 State v. Moore

fill up a joint.’ ” Id. at 426 (brackets omitted). We concluded
that those facts “did not make it objectively reasonable to
believe that the underage passengers” possessed any marijuana, and that, “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.” Id. at 428 (emphasis added).
In the instant case, the first and second facts enumerated by the state pertain to Caldwell’s testimony that he
recognized—based on his experience and training—a “very
strong” odor of “unburnt” marijuana coming from defendant’s car. Yet, as with the “pretty strong odor” of “green”
marijuana in T. T., those facts establish only that “some
amount of marijuana may be present,” id. at 437, and they
contribute very little to the reasonable suspicion analysis
here, id. at 440 (“The odor of marijuana * * * contribut[es]
very little to the reasonable suspicion analysis for general
crimes of possession or delivery.”).
To be sure, Caldwell’s testimony was that the
unburnt marijuana odor was “very strong.” But there is
nothing in the record, including testimony about Caldwell’s
training and experience, that suggests that the “very strong”
odor described by Caldwell indicated the presence of an illegal amount of marijuana. Put differently, a legal amount
of marijuana could just as well have a “very strong” odor,
and the qualifier “very strong” is insufficiently descriptive
to support a reasonable inference that the amount smelled
by Caldwell was an illegal amount, rather than a legal
amount.4
We acknowledge that “reasonable suspicion is a relatively low barrier,” and “is a less demanding standard than

4
We observe, as has the Massachusetts Supreme Court, that in the context
of judging whether illegal marijuana activity is occurring, “characterizations of
odors as strong or weak are inherently subjective; what one person believes to be
a powerful scent may fail to register as potently for another.” Commonwealth v.
Overmyer, 469 Mass 16, 21-22,

11 NE3d 1054, 1059

 (2014) (citing Richard L. Doty
et al, Marijuana Odor Perception: Studies Modeled from Probable Cause Cases, 28
Law & Hum Behav 223 (Apr 2004) (identifying traits, such as gender and age,
and factors, such as temperature, that may influence ability to smell, and noting
that “the strength of a smell is thus at best a dubious means for reliably detecting
the presence of a criminal amount of marijuana”).
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311 Or App 13

 (2021)                                   21

probable cause.” State v. Taylor,

308 Or App 61, 66

479 P3d 620

 (2020) (citations and internal quotation marks omitted).
Nevertheless, the reasonable suspicion standard requires specific and articulable facts that make the suspicion a reasonable inference rather than a hunch or a guess. See, e.g., Kreis,

365 Or at 667

 (“Although officers reasonably may draw inferences about human behavior from their training and experience, an officer’s ‘hunch’ based on training and experience is,
by itself, insufficient to form a basis for reasonable suspicion.”
(Internal citation and quotation marks omitted.)).
         Here, because “the possession and transport of
marijuana, in a variety of amounts and forms, is now legal,”
T. T.,

308 Or App at 424

, a “very strong odor” of unburnt
marijuana is not a specific enough articulation to adequately
support reasonable suspicion that marijuana was therefore
present in defendant’s vehicle in an unlawful quantity, and
that the state’s intrusion into defendant’s liberty was therefore justified. See State v. Walker,

277 Or App 397, 401

372 P3d 540

, rev den,

360 Or 423

 (2016) (explaining that a hunch
or intuition is insufficient to justify an officer’s interference
with a person’s liberty).
          In articulating the reasonable suspicion standard,
we have also 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 to give rise to reasonable suspicion.”
State v. Martin,

260 Or App 461, 476

317 P3d 408

 (2014).
And where a person’s conduct is “consistent with criminal
activity, but is not too remarkable, it will not support a stop.”

Id.

 (internal quotation marks omitted).
         Here, though a “very strong” odor of unburnt marijuana may be consistent with criminal activity, “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.” T. T.,

308 Or App at 427

.
Because it is no longer remarkable, Caldwell’s testimony as
to the smell of marijuana, without more, does not support a
reasonable suspicion that defendant possessed an unlawful
amount of marijuana. See

id. at 437

(explaining that “odor
22 State v. Moore

adds only that much to the calculus—that some amount of
marijuana may be present” (emphasis added)).
The third fact enumerated by the state—which pertains to Caldwell’s testimony that he cannot detect “very
small, minute amounts” of marijuana—is likewise unavailing. Caldwell testified that the “very strong” odor he smelled
indicated the presence of more than “a very small amount” of
marijuana, which he described as “half a joint in an ashtray.”
But that information—just like the “strong odor” in T. T.
that indicated more “than a user amount,” such as “what
would fill up a joint”—does not support reasonable suspicion
that defendant possessed an unlawful amount of marijuana.
In short, Caldwell’s testimony relating to the “very
strong” odor of “more than just a very small amount” of
“unburnt” marijuana—in the absence of any additional
indicia that the quantity of marijuana that might have been
present was unlawful—is insufficient to support an objectively reasonable suspicion that defendant possessed an
unlawful amount of marijuana.
The fourth and final fact advanced by the state—
i.e., that defendant’s demeanor became “sad” or “deflated”
when Caldwell asked about marijuana—deserves no weight
in this case. That is because Caldwell’s questions about
marijuana were not reasonably related to the purpose of the
traffic stop and could not be used to justify Caldwell’s extension of the stop to ask such questions. See Arreola-Botello,

365 Or at 712

 (officers are precluded from asking questions
“unrelated to the purpose of the [traffic stop] without independent constitutional justification”).5

    5
      Even if we were to consider defendant’s demeanor in response to Caldwell’s
questions about marijuana, that fact would deserve very little weight here.
Although an officer’s observation of a suspect’s demeanor can be relevant to the
reasonable suspicion calculus—particularly where it is consistent with criminal
activity—in this case, defendant’s demeanor was not itself indicative of criminal
conduct and could be ascribed to any number of things. Compare, e.g., State v.
Holdorf,

355 Or 812, 829

333 P3d 982

 (2014) (the defendant’s “nervous, fidgety
demeanor” weighed in favor of reasonable suspicion where officer explained it was
consistent with methamphetamine intoxication), with, e.g., State v. Maciel,

254 Or App 530

, 540 n 4,

295 P3d 145

 (2013) (according little weight to the defendant’s
change in demeanor after the officer asked about drugs, because “that change
in demeanor could be ascribed to any number of things,” including “the sudden
realization that a mere traffic stop is escalating into a criminal investigation”).
Cite as

311 Or App 13

 (2021)                                  23

        In sum, the foregoing facts—considered in their
totality—do not give rise to an objectively reasonable suspicion that defendant possessed an unlawful amount of
marijuana. Thus, defendant’s traffic stop was unlawfully
extended.
         For the reasons above, we conclude that the trial
court erred when it denied defendant’s motion to suppress
the evidence obtained during the extension of that stop.
See State v. Middleton,

294 Or App 596, 600

432 P3d 337

(2018) (“Incriminating evidence that police obtain during
an unlawful extension of a stop is subject to suppression.”).
Additionally, because defendant’s traffic stop was unlawfully extended, we further conclude that the trial court
erred when it did not suppress defendant’s statements elicited by the trooper’s questioning during the extension of the
stop. See State v. Rodgers,

219 Or App 366, 371

182 P3d 209

,
aff’d sub nom State v. Rodgers/Kirkeby,

347 Or 610

227 P3d 695

 (2010) (noting that evidence derived from questioning
that occurs during an unlawfully extended stop is subject to
suppression). Accordingly, we reverse defendant’s conviction
and remand.
        Conviction reversed and remanded; otherwise
affirmed.
         AOYAGI, J., dissenting.
         In my view, the state trooper in this case had reasonable suspicion that defendant possessed more than one
ounce of usable marijuana. I therefore would affirm the trial
court’s judgment and, accordingly, respectfully dissent.
          This is our fifth time in four months addressing the
significance of marijuana odor in creating reasonable suspicion of a crime. In State v. T. T.,

308 Or App 408, 422-25

479 P3d 598

 (2021), we recognized that the legalization of marijuana under state law requires a more nuanced approach to
marijuana odors than we took in the past when marijuana
possession was universally unlawful. In T. T., an adult and
two juveniles were travelling in a car, and, upon approaching
the car, a state trooper smelled a “pretty strong odor” of “green
non-smoked marijuana.”

Id. at 426

. He eventually searched
the car, finding 39 pounds of marijuana inside luggage in the
24                                                             State v. Moore

trunk.

Id. at 412

. One of the youths was adjudicated delinquent and, on appeal, challenged the denial of his motion
to suppress.

Id. at 410

. We agreed with the youth that the
trooper lacked reasonable suspicion that the youth possessed
marijuana, because it could have been the adult driver who
possessed it, and, whereas a youth cannot possess any marijuana lawfully, an adult may possess varying amounts lawfully depending on the circumstances.

Id. at 425-28

. We held
that the trooper had reasonable suspicion that the youth was
engaged in unlawful importing of marijuana from California
to Oregon, however, and, on that basis, affirmed the denial of
the motion to suppress.

Id. at 428-38, 440

.
         Shortly thereafter, in State v. Bowen,

308 Or App 505, 510-11

481 P3d 370

 (2021), we held that a state trooper
lacked reasonable suspicion of the crime of unlawful delivery of marijuana, where the trooper smelled an “obvious”
odor of marijuana upon approaching a rental car driven by
the defendant and containing a passenger. We explained
that seeing a rental car on a public highway does not create
reasonable suspicion of drug trafficking, even if the highway
is known to be part of a “drug trafficking corridor.”

Id. at 509-10

. As for the marijuana odor, the evidence was “sparse”
as to what the trooper actually smelled—he did not say
whether the odor was of fresh or burnt marijuana, identify
where the odor seemed to come from, or indicate having any
training or experience in differentiating marijuana odors.

Id. at 510-11

. On that record, we held that the trial court
had erred in denying the defendant’s motion to suppress.

Id. at 511

. Similarly, in State v. Arivett,

309 Or App 480, 487-88

483 P3d 29

 (2021), we concluded that a state trooper
lacked reasonable suspicion of the crime of unlawful possession of marijuana, such that the defendant’s motion to
suppress should have been granted, where the only significant fact was that the trooper smelled a “moderate smell of
marijuana” upon approaching the vehicle.1
    1
      The trooper in Arivett did not testify as to whether he smelled fresh or burnt
marijuana.

309 Or App at 486

. Also, the opinion does not mention whether the
“unlawful” threshold at issue was one ounce or eight ounces. See

id. at 486-88

.
That distinction did not matter to the reasonable-suspicion analysis in Arivett,
given the meager evidence about odor, nor did it matter to the defendant’s conviction, in that the challenged search resulted in the seizure of five pounds of
marijuana. See

id. at 483

.
Cite as

311 Or App 13

 (2021)                                                     25

        Most recently, in State v. Robinson,

310 Or App 644, 660

486 P3d 28

 (2021), we held that a state trooper had
reasonable suspicion of the crime of unlawful importing of
marijuana, based on a combination of facts, one of which
was a “very strong smell” of “fresh marijuana” coming from
the vehicle, such that the trial court correctly denied the
defendant’s motion to suppress.

           In this case, the majority holds that the trooper
lacked reasonable suspicion of the crime of unlawful possession of marijuana. I disagree. As a preliminary matter,
it is critical to note that the relevant quantity for possession
in this case was one ounce. It is presently an open question
under Oregon law whether a private vehicle on a public road
is a “public place,” such that an adult may lawfully possess
up to one ounce of usable marijuana in the vehicle, ORS
475B.337(1)(b), or not a “public place,” such that an adult
may lawfully possess up to eight ounces of usable marijuana
in the vehicle, ORS 475B.337(1)(c). However, this case was
charged and prosecuted on a one-ounce theory, which defendant never challenged in the trial court, so the reasonable-suspicion analysis must necessarily be judged against a
one-ounce standard.2

          The marijuana odor described by the trooper in this
case was sufficient to give rise to reasonable suspicion that
defendant possessed more than one ounce of usable marijuana. Defendant was alone in the car, so, unlike the youth
in T. T., there was no question that he was the one who possessed the marijuana. And there was much more specific
evidence about what the trooper smelled here than in Bowen
or Arivett—the marijuana odor was “very strong” (whereas
it was merely “obvious” in Bowen and “moderate” in Arivett),
it was the odor of green marijuana (an important detail not
present in Bowen or Arivett), and there was evidence that
the trooper could distinguish between smaller and larger
quantities of marijuana, even if he could not do so with

    2
      I agree with the majority’s rejection of defendant’s first assignment of error.
That is, I agree that the trial court did not plainly err in failing to acquit defendant of unlawful possession, sua sponte, based on a car not being a “public place”
and the lawful amount therefore being eight ounces rather than one ounce. Any
error was not plain.
26                                             State v. Moore

enough precision to differentiate three quarters of an ounce
from one and one-half ounces.
         I do not read T. T.—which must be understood in
the context of the legal issues presented in that case—to
have swung the pendulum so far that, whereas previously
any marijuana odor would create reasonable suspicion of a
crime, now no marijuana odor creates reasonable suspicion
of unlawful possession by an adult. It is important to note
that T. T. contains no holding regarding reasonable suspicion as to an adult. T. T. was a juvenile delinquency case, in
which the youth could not possess (or import) any amount of
marijuana. We discussed adult marijuana possession solely
in the context of explaining why the presence of other people
in the car, including an adult, precluded reasonable suspicion of possession by the youth. In that context, the strength
of the odor and the particular evidence about the odor were
minimally relevant, because, regardless how much marijuana the adult might possess, the trooper lacked reasonable suspicion that the youth possessed marijuana.
         To the extent that the majority leaves open the
possibility of establishing reasonable suspicion of unlawful
possession through more refined officer testimony—such as
testimony that an officer has been trained to identify marijuana quantity by odor alone and can tell if an odor is associated with an unlawful quantity—I think that requires too
much. Even assuming arguendo that such precision is possible given all the variables involved, to require it seems to
me to slip from reasonable suspicion into probable cause. In
my view, the evidence here was enough to establish reasonable suspicion, which we have consistently described as a
low bar, even if it falls well short of probable cause.
         For those reasons, I believe that the trial court correctly denied defendant’s motion to suppress, would affirm
the judgment, and respectfully dissent.

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