Oregon v. Smalley

[Editor’s Note: The casebook Marijuana Law, Policy, and Authority (Robert A. Mikos, ed., 1st ed. 2017) erroneously gives the citation as 225 P.3d 884 (2009). The correct citation is 225 P.3d 844 (2010).] Fred Smalley (defendant) was a passenger in a pickup truck that was pulled over for a routine traffic stop. The police officer asked to search the truck, and the driver consented. During the warrantless search, the officer detected the scent of marijuana, which became stronger as the officer got closer to a backpack owned by Smalley behind the driver’s seat. Based on the officer’s prior experience dealing with marijuana, the officer believed that the backpack contained a significant amount of marijuana, and the officer found more than 60 ounces of marijuana in the backpack. Smalley was charged with manufacture of marijuana and criminal possession of marijuana. Although possession of any amount of marijuana was illegal, possession of one ounce or more constituted a crime, with possession of lesser amounts deemed a noncriminal violation. Before trial, Smalley filed a motion to suppress the marijuana found during the search, arguing that the officer did not have a warrant and that the automobile exception to the warrant requirement did not apply because the officer had no probable cause to suspect criminal activity because the scent of marijuana did not necessarily indicate the presence of one ounce or more of marijuana. The trial court agreed with Smalley and suppressed the marijuana. The state appealed.