State v. Bowen

308 Or.App. 505

481 P.3d 370

STATE of Oregon, Plaintiff-Respondent,

v.Cristafer Delano BOWEN, Defendant-Appellant.

A166678

Court of Appeals of Oregon.

Submitted June 26, 2019.

January 13, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.

AOYAGI, P. J.

Defendant appeals a judgment of conviction for unlawful delivery of marijuana, former ORS 475.860(2) (2015), repealed by Or. Laws 2017, ch. 21, § 126,¹ and unlawful possession of more than 32 ounces of usable marijuana, former ORS 475.864 (2015), repealed by Or. Laws 2017, ch. 21, § 126.

A state trooper stopped defendant for a traffic violation. Upon smelling the odor of marijuana, the trooper extended² the stop to question defendant about marijuana. During the extension, defendant made incriminating statements that led to the seizure of marijuana and other evidence. Before trial, defendant moved to suppress evidence under Article I, section 9, of the Oregon Constitution. The trial court denied the motion, reasoning that the trooper had reasonable suspicion of unlawful delivery of marijuana, permitting the extension of the stop. See State v. Arreola-Botello , 365 Or. 695, 706, 451 P.3d 939 (2019) (under Article I, section 9, an officer may extend or expand a traffic stop to inquire on unrelated matters only if the officer has independent constitutional justification, such as reasonable suspicion of a specific crime). On appeal, defendant contends that the court erred in denying his motion to suppress. For the following reasons, we reverse and remand.

The only issue on appeal is whether the trial court was correct in concluding that the trooper had reasonable suspicion of unlawful delivery of marijuana, such that extending the stop did not violate Article I, section 9. The facts relevant to that issue reduce to the following: Defendant was driving a rental car from Grants Pass, Oregon, to Denver, Colorado. He was stopped for a traffic violation while driving on Highway 140 in Lake County. The trooper who stopped him smelled an "obvious" odor of "marijuana" upon approaching the car. Defendant did not appear to be impaired or intoxicated. Defendant did appear to be nervous—he had shaky hands and a slightly shaky voice when handing over his driver's license and rental agreement. From 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 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 subjectively believed that he had reasonable suspicion that defendant was engaged in unlawful delivery of marijuana, and he began questioning defendant about marijuana, thus extending the stop.³ Defendant eventually admitted to having about 15 pounds of marijuana inside luggage in the back of the car that he was being paid to transport to Denver. That admission led to the seizure of 17 pounds of marijuana and other incriminating evidence.

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 P.3d 1121 (2017). The officer must have a subjective belief that is objectively reasonable under the totality of the circumstances. State v. Kreis , 365 Or. 659, 665, 451 P.3d 954 (2019). "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 , 361 Or. at 183, 389 P.3d 1121 (internal citations omitted). Only the objective component of reasonable suspicion is at issue here.

Reasonable suspicion requires "less than probable cause" but "must be based on more than mere speculation;" a "hunch" is not enough. Kreis , 365 Or. at 665, 667, 451 P.3d 954. The state "need not prove that the articulated facts give rise to a conclusion with certainty that a crime has occurred or is about to occur." Maciel-Figueroa , 361 Or. at 184, 389 P.3d 1121. However, "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." Id. (citing State v. Belt , 325 Or. 6, 13, 932 P.2d 1177 (1997) ) (emphasis omitted). That is, "[w]hen an inference is logically sound, based on [the] presence of sufficient evidence to permit it, the inference becomes available for use as a matter of law, and the finder of fact may find thereby that the inferred fact is present." Belt , 325 Or. at 13, 932 P.2d 1177. An officer's training and experience may inform the officer's understanding of articulable objective facts, but it "cannot itself supply the facts." State v. Aguilar , 307 Or. App. 457, 469, 479 P.3d 620 (2020); see also State v. Taylor , 308 Or. App. 61, 73, 478 P.3d 558 (2020) (an officer's training and experience "cannot take the place of articulable facts").

Here, the trial court found that the trooper subjectively suspected defendant of committing unlawful delivery of marijuana. That offense is committed when an unlicensed person transfers or attempts to transfer marijuana to another person, subject to an exception for one ounce or less of homegrown marijuana. See former ORS 475.860(1) (2015) ("Except for licensees and licensee representatives, as those terms are defined in ORS 475B.015, that are engaged in lawful activities, and except for a person acting within the scope of and in compliance with ORS 475B.245 , it is unlawful for any person to deliver marijuana." (Emphasis added.)); former ORS 475B.245(5), renumbered as ORS 475B.301 (2017) (exception for "the delivery of not more than one ounce of homegrown 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"); ORS 475.005(8) (defining "delivery" as "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship").

We consider each of the specific facts articulated by the trooper, individually and together, to determine as a matter of law whether the trooper's subjective suspicion was objectively reasonable. Maciel-Figueroa , 361 Or. at 182, 389 P.3d 1121 (an officer's suspicion must be objectively reasonable under the totality of the circumstances existing at the time of the stop). That is, we must determine whether it was objectively reasonable for the trooper to suspect defendant of unlawful delivery of marijuana.

One of the facts—defendant's nervousness—is not significant to our analysis. As we have recognized repeatedly, "nervousness alone is entitled to little weight when evaluating reasonable suspicion." State v. Huffman , 274 Or. App. 308, 314, 360 P.3d 707 (2015), rev. den. , 358 Or. 550, 368 P.3d 25 (2016) ; see also State v. Alvarado , 257 Or. App. 612, 629, 307 P.3d 540 (2013) ("[D]efendant's anxious behaviors contribute very little to our reasonable suspicion calculus."); State v. Berry , 232 Or. App. 612, 618, 222 P.3d 758 (2009), rev. dismissed , 348 Or. 71, 228 P.3d 582 (2010) ("[T]here is nothing inherently suspicious about * * * being nervous when pulled over by a police officer."). Here, at the beginning of the stop, defendant's hands were shaky and his voice slightly shaky when he handed his driver's license and rental agreement to the trooper. The trial court did not mention that fact in its reasonable-suspicion analysis, nor does the state rely on it, and we agree that such minor indications of nervousness are not significant to the analysis.

As for the fact that defendant was driving a rental car from Grants Pass to Denver, the act of traveling on a public highway known to be part of a "drug trafficking corridor" does not give rise to reasonable suspicion that any particular person traveling on the highway is trafficking drugs. State v. Tapp , 284 Or. App. 583, 588-89, 393 P.3d 262 (2017) ("Although [a police 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."); see also State v. T. T. , 308 Or. App. 408, 436 n. 4, 479 P.3d 598 (2021) ("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."). Traveling in a rental car is also an unremarkable act that adds little to the reasonable-suspicion calculus. Id. at 436, 479 P.3d 598.

As may be readily apparent, this 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. Marijuana has been legal for recreational use under state law since 2015. Diesel v. Jackson County , 284 Or. App. 301, 302, 391 P.3d...