The NYPD is still spending taxpayers' money to prevent taxpayers from accessing police misconduct records. The latest fight over these records was prompted by the New York legislature, which repealed the law that allowed the NYPD to deny the public access to this information last summer.

Since then, the NYPD and other first responder agencies have been attempting to litigate their way back to opacity. New York law enforcement agencies -- represented by their unions -- secured a temporary injunction blocking the release of these records last fall, setting the stage for even more expenditure of public funds to argue for the further screwing of the public these agencies are supposed to be serving.

Additional litigation was prompted by Mayor Bill de Blasio's unsealing of disciplinary records in response to the law's repeal. NYPD officers and city firefighters filed their own suit following ProPublica's publication of the unsealed records. The NYPD's union was able to secure an injunction prior to this publication, but it was completely nullified by ProPublica's reporting, which put everything it had obtained from the CCRB (Civilian Complaint Review Board) -- which has its own copies of NYPD misconduct files -- online in a searchable database.

This transparency genie can't be put back into the bottle, but that isn't stopping the litigants from trying to obtain a judicial order demanding this impossibility. US District Court Judge Katherine Polk acknowledged last year any order she might issue would be unable to "reach backwards in time" and reverse the publication of this info.

The unions are back in court, claiming the release of this info by the CCRB (and its subsequent publication) has created a danger that can only be addressed with a history-erasing court order.

Anthony Coles, an attorney at DLA Piper representing the unions, told the panel of judges Tuesday that police officers received “chilling threats” made to officers at the time the records release was first announced.

Even if true, there's nothing the court can do about it now. And, as the court points out, it was up to the plaintiffs to argue this point effectively prior to asking the court for yet another restraining order.

U.S. Circuit Judge Raymond Lohier faulted the unions, however, for failing to get specific in support of their claim that the repeal of the records-sealing law in the New York Constitution created irrevocable harm.

“As I understand it, there’s nothing in the record that indicates that the unions were able to come up with anything,” Lohier said.

Vague post-facto complaints aren't going to move the dial. But the unions -- and the public employees they represent -- are apparently hoping hysterical rhetoric delivered inside and outside the court might. But there's some encouraging pushback, led by police reformers, who point out the hypocrisy of cops claiming negative information hurts them while simultaneously dragging every victim of police violence through the mud in hopes of exonerating cops for killing or maiming citizens.

Here's Tiffany R. Wright of Communities United for Police Reform speaking up about the NYPD's pattern and practice of besmirching its victims:

Negative information about people killed by police has been allowed to circulate “in the public square,” she continued, while disciplinary records have not been public, making for a “one-sided, unfair” conversation.

That's the way things have been for far too long. Only recently -- and only with the repeal of a law that allowed cops to shield themselves from public scrutiny -- has the balance of power started to shift. But never mind the courtroom hysterics: the NYPD (and other NY public agencies) still wield most of the power. This shift towards accountability isn't seismic. But hopefully it's more than incremental. It appears these agencies will do everything in their power to prevent it from shifting any further. And they'll be spending the public's money to do it.

Let's get this straight out of the gate: I am an expert on nothing to do with the stock market beyond my own personal investments. So, absolutely none of this should be taken as any advice or indication that a certain position in any market is being advocated personally by me. This is not a post about where you should invest your money. It is, instead, a post about how silly certain portions of the stock market appear to have become.

And that statement is informed by a decade of watching GameStop, the retailer for new and used video games, new and used video game consoles, and mostly new Funko Pop toys, has been driven further and further from relevance. While predictions about the demise of GameStop have been around forever, recently there is more reason to think they're going to become true. First, the trend of expanded purchases for digital downloads does away with a hefty chunk of GameStop's potential revenue. Yes, GameStop offers its own digital download platform... but nobody uses it. In recognition of that trend, the next generation of consoles are being offered with an option to forgo any optical drive entirely, which would be another nail in GameStop's coffin if widely adopted. And, like most retail operations, the COVID-19 pandemic has severely crippled GameStop's business.

Which is why those challenges and trends are accurately reflected in GameStop's stock price, because... oh, wait... shit.

So, yeah, in the month of January, GameStop's stock has risen roughly 4x. And if you want to try to explain that away, please note that pulling the timeline back further actually makes all of this look way more bonkers.

Okay, so what's going on here? Did GameStop come up with an entirely new strategy to propel its relevance in the long-term video game industry? Did it totally restructure, coming up with cost-saving measures or store and staffing closures that make it suddenly more profitable? Was there some consequential change of leadership or outside investment in the company?

Nope, none of that. Instead, there appears to be a sort of insane tug of war going on right now on Reddit between short sellers and day traders that is artificially sending this stock on an insane rollercoaster.

Shares of GameStop jumped more than 20% to a high of $101.62 shortly after the open on Tuesday. After drifting lower from the session high, the stock turned sharply higher as Social Capital’s Chamath Palihapitiya said in a tweet that he bought GameStop call options betting the stock will go higher. Trading was halted for a second time following his tweet due to volatility. The stock was last up 21% at around $91 a share.

The explosive rally in GameStop was largely driven by the buying frenzy among individual investors active in online forums, especially the infamous “wallstreetbets” Reddit chat room with more than 2 million subscribers. One trending post on Tuesday features a screenshot of the user’s portfolio showing an over 1,000% return on GameStop’s stock.

In other words, this is like some strange offshoot of a meme stock, where nobody really cares about valuation and mostly only cares about potential. Except, for all the reasons we discussed in the opening, nobody really seems to think that there is any potential here. Instead -- and I recognize that this is crazy -- a group of traders on the WallStreetBets Reddit appear to be trying to use the power of that chat room to create its own market reality.

With enough small traders rallied to its cause, WallStreetBets can create its own stock market reality, at least for a little while, specifically in cases like GameStop’s where other investors have thrown massive amounts of money behind the opposite bets. “It was a meme stock that really blew up,” WallStreetBets moderator Bawse1 told Wired. “The massive short contributed more toward the meme stock.”

While analysts say the stock hype can’t last, it’s already exposed, once again, just how much of a messed-up casino the stock market can be.

And that's the problem. This is by no means exactly like 2007 by any stretch, but it does have some of that same stench. Untethering the stock market from the reality of what's going on with a company is not a good plan. GameStop has headwinds to its survival in the long-term, simply as a matter of its business and where the gaming marketplace is going. What's going on in the market appears to be chicanery.

We've got one more cross-post from another podcast this week, and the subject is still the law that's dominating the tech policy discourse: Section 230. Mike recently joined R Street's Shoshana Weissmann on the Daily Tech News Show hosted by Tom Merritt, for a roundtable discussion about the all-important online liability shield and its many, many vital applications that people typically fail to consider. You can listen to the whole conversation on this week's episode of the Techdirt Podcast.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Republicans have spent decades holding themselves out as the party of "small government" and "keeping government out of business," while also claiming to be strict supporters of an originalist interpretation of the Constitution. The reality, of course, is something altogether different. Even as Republican politicians often pay lips service to these claims, their policy ideas show the opposite. The top Republican on the House Energy & Commerce Committee has announced the GOP's "Big Tech Accountability Platform" that has an astounding level of government interference not just into business, but into the 1st Amendment rights of all Americans.

The full plan is somewhat astounding (I don't know why it's showing sideways, but I guess download it and rotate it). It opens by paying lip service to the idea of the 1st Amendment, and the value of "more speech" over suppressing speech. But then immediately seeks to undermine the 1st Amendment by suggesting that internet companies should be compelled to host speech they disagree with. It falsely suggests that the decision to suspend President Trump's account was an attack on his conservative views, and not his efforts to incite his supporters into overturning the election. It includes a section on giving law enforcement more access to content and forcing tech companies to become an arm of law enforcement. It (of course!) has a section on protecting "our children."

The whole thing is a censor's dream.

Of course, the GOP has no real power in Congress, especially in the House right now, but that could change quite a bit over the next few years, so we should take these proposals seriously. The key parts of the plan are here:

We could go through piece by piece and explain how these issues are misleading, wrong, silly, or pointless, but I'm sure we'll have plenty of chances to address each point as they start showing up in various bills.

What is clear, however, is that most of this policy is not about any principled stands the GOP may have. Most of it is about spite.

Back in 2019, a California court tossed a lawsuit brought by a self-described feminist who had her Twitter account banned following some posts targeting transgender people. Meghan Murphy tweeted enlightening things like "men aren't women tho" and "how are transwomen not men?" She also "deadnamed" transsexuals, identifying them using their former gender/names, something Twitter's rules explicitly prohibit.

The court didn't care much for Murphy's proposed class action lawsuit, pointing out that Twitter is free to remove users and content for any and all reasons, even reasons it hadn't yet added to its official list of rules. (The deadname prohibition came after Murphy's account was permanently suspended.) This may seem unfair, but that's the rules people agree to when using a platform provided by others.

Beyond that, there's Section 230, which shields Twitter from exactly these kinds of lawsuits. The court pointed out Twitter's editorial decisions (i.e., the removing of her account and its content) do not remove the platform's Section 230 protections. In fact -- contrary to inexplicably popular belief -- Section 230 of the CDA expressly provides for good faith moderation efforts and does not limit them to removing only illegal or illicit content.

The court tossed the lawsuit and Murphy appealed. Murphy's second pass doesn't go any better than her first. And, again, it's Section 230 that's instrumental to this second dismissal. From the decision [PDF]:

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

The court notes Murphy's attempt to route around Section 230 by claiming this is about broken contracts (the numerous changes made to Twitter's Rules over the years, as well as its promise of 30-day notice prior to permanent suspension of accounts). The court also notes it's not going to entertain a bunch of not-so-clever bullshit clearly intended to keep the court from discussing Section 230 immunity.

Murphy takes issue with both the second and third prongs of the section 230 test as they relate to her claims. She contends section 230(c)(1) cannot apply in this case because the “only information at issue is Twitter’s own promises,” not “ ‘information provided by another content provider,’ ” and because she seeks to treat Twitter not as a publisher of information provided by others, but as a promisor or party to a contract.

[...]

In assessing whether a claim treats a provider as a publisher or speaker of user-generated content, however, courts focus not on the name of the cause of action, but whether the plaintiff’s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Barnes, supra, 570 F.3d at pp. 1101–1102; Cross, supra, 14 Cal.App.5th at p. 207.) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the “ ‘ “creative” pleading’ of barred claims” or using “litigation strategy . . . to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

In a footnote, the court points out that it sees through Murphy's attempted workaround because, well, it's so transparent. If there was a serious breach of contract, there'd be some cognizable injury to be addressed. There's nothing of the sort in Murphy's allegations.

Although Murphy also points to the allegations that Twitter failed to give her 30 days’ notice of the changes to the Hateful Conduct Policy and that Twitter applied its new policy retroactively as breaches of clear and well-defined promises, the gravamen of each of her causes of action concerns Twitter’s editorial decisions not to publish content—as reflected by the fact that she alleges no specific injury from the alleged notice and retroactivity violations but complains instead of the harm caused by Twitter’s ban on her and others’ free speech rights.

And precedent backs the application of Section 230 to this case -- which actually deals with Twitter's removal of a user's account and content, rather than a breach of contract. Twitter made no promises it would keep users and their accounts alive unless specific things happened. Instead, it retained its right to refuse service to users, just like pretty much any other private business in the nation.

Here, Murphy’s allegations that Twitter “enforced its Hateful Conduct Policy in a discriminatory and targeted manner” against Murphy and others by removing her tweets and suspending her account amount to attacks on Twitter’s interpretation and enforcement of its own general policies rather than breach of a specific promise.

Twitter has no contractual obligation to continue to do business with Meghan Murphy. And its decision to end this relationship is immunized from legal liability by Section 230 of the CDA. Murphy's case is dismissed for the second time and Twitter will be allowed to recover its legal costs for defending itself from this bad faith lawsuit. Murphy can always try this again in federal court, but she's not going to get any further doing that. She's only going to keep blowing her own money on bad litigation.

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Here's an interesting lawsuit, brought to you by some familiar names. And by "interesting," I mean "exceedingly stupid."

The lawsuit [PDF] was filed by "Ambassador Marc Ginsberg." Ginsberg last served as an ambassador in 1998. And yet, that title is being used to name him as the plaintiff. The defendant is Apple. In the mix (but not a defendant) is Telegram, a popular and often controversial messaging app that has served as a mouthpiece for alt-right personalities and others who have been banned from more mainstream social media services.

Ginsberg also runs the Coalition for A Safer Web (the co-plaintiff in this lawsuit), a non-profit whose mission is "inter alia, to promote new public/private partnerships to facilitate the expeditious removal of extremist and terrorist incitement and instruction content from social media platforms." The executive team at CSW includes Dr. Demetrick Pennie, a former Dallas Police sergeant and, according to the site, "leading CDA 230 expert."

Here's some of Dr. Pennie's 230 expertise at work:

In January, Dallas Police Sergeant Demetrick Pennie sued [PDF] Twitter, Google, and Facebook, claiming they were directly responsible for "radicalizing" Micah Johnson, who shot and killed five police officers in Dallas, Texas. According to Pennie, the social media companies actively allowed and encouraged terrorist use of their platforms to spread their message and attract participants.

Pennie's lawsuit was tossed because the court could find nothing linking terrorist organization Hamas to the Dallas shooter, despite Pennie's baseless proclamations otherwise. And his lawsuit was so off-base -- suing social media companies over the shooting of cops by a Dallas resident -- the court couldn't even be bothered to address the Section 230 ramifications. Pennie was represented in this case by Keith Altman of Excolo Law (often in conjunction with 1-800-LAW-FIRM), who has filed dozens of similarly stupid lawsuits trying to hold social media companies directly responsible for the violent acts of terrorists.

"Ambassador" Marc Ginsberg is suing Apple because of content Telegram users post. I'm not even kidding. And he's being represented by ex-Excolo litigator Keith Altman, who has moved on to Lento Law Group. But he's apparently still doing the same kind of litigation: suing the wrong parties over things other people are doing or have done.

The lawsuit features two plaintiffs (Ginsberg, Coalition for a Safer Web) because CSW employs Ginsberg and provides him with an iPhone. Apple is the defendant because it has refused to remove Telegram from its app store. The lawsuit is full of relevant facts and evidence, like this:

Currently, Defendant Apple sells the iPad Mini 5 for $399+, the 2020 iPad is $329+, the 2020 iPad Air is $599+, the 12.9-inch iPad Pro is $999+, the 11- inch iPad Pro is $799+, the 12.9-inch iPad Pro is $799, and the 11-inch iPad Pro is $649+.

And this:

Defendant Apple sells the Series 3 Apple Watch for a starting price of $199, the Apple Watch SE S5 for a starting price of $279, and an Apple Watch Series 6 for a starting price of $399.

Ginsberg claims the Telegram app violates Apple's developer guidelines and California's hate speech law and should be removed from the app store. Because Apple hasn't removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg's life through the app store -- even if Ginsberg has never downloaded the app or engaged with its users.

Defendant breached their duty by continuing to host Telegram on the App Store despite Defendant’s knowledge that Telegram was being used to incite violence including violence against African Americans and Jews.

Ambassador Ginsberg is a Jewish person whose professional work requires he maintain a presence in the public eye.

As a result of this Anti-Semitic campaign that was coordinated on the Telegram app, Ambassador Ginsberg is forced to live in apprehension of religiously motivated violence being perpetrated against him.

Ambassador Ginsberg’s fear of religious violence has caused him substantial emotional harm including depression and anxiety.

All of this may be true. But suing Apple over distressing content carried on Telegram isn't going to work. Apple doesn't have a duty to remove anything from its app store that may cause distress to anyone. If anyone's responsible for the racist content being spread on Telegram, it's the people posting it. That targeted harassment is possibly being aided by a chat app is concerning, but Apple isn't culpable for the actions of users of an app it allows customers to download and use.

And conclusory arguments like this aren't going to convince a judge otherwise.

If was foreseeable to Apple that by allowing Telegram to continue to be available on the App Store that Apple’s conduct could lead to fear of violence by individuals, such as Ambassador Ginsberg.

By failing to remove Telegram from the Apple App Store, Defendant has proximately caused Ambassador Ginsberg’s emotional distress.

Plaintiff Ambassador Ginsberg has suffered injuries in an amount that exceeds $75,000.

The arguments get even worse. Ginsberg claims Apple deceived him into purchasing an iPhone by promising to enforce its app store restrictions -- restrictions Ginsberg claims are violated by Telegram remaining available. But Telegram appears to comply with Apple's rules for apps relying on third-party content because Telegram allows users to block accounts/content, report violations/abusive accounts, and provides contact info for users seeking to have questions and concerns addressed.

Somehow, Telegram's continued presence in the app store has rendered Ginsberg's phone nearly useless.

Defendant’s failure to enforce their own guidelines against Telegram has caused Ambassador Ginsberg and CSW to suffer economic loss by being deprived of a key benefit of the purchase and use of the Apple iPhone XR.

I don't see how this makes it past a motion to dismiss. Ginsberg has a problem with Telegram users' content. So he's suing… Apple. Even assuming Apple is wrong to allow Telegram in its app store, Telegram is multi-platform. It has an Android app and a desktop version. The racist conspiracies Ginsberg believes are targeting him and causing him verifiable, recoupable harm could have originated on other platforms. Suing Apple into submission isn't going to stop the behavior that's bothering Ginsberg. It's only going to enrich Ginsberg.

And that appears to be the whole point of this lawsuit: to hit the biggest target with the broadest allegations and hope for a quick settlement. There's nothing in here that carries any legal weight or explains why Apple should be held responsible for the racist content that has (allegedly) caused Ginsberg distress.

UPDATE: Ginsberg has now sued Google for the same thing, claiming Google isn't protecting him from Telegram users' content by allowing it to remain in the Google Play store. That covers another outlet for Telegram, but once again, suing Google isn't going to stop Telegram users from posting anti-Semitic content or otherwise making Ginsberg feel unsafe.

As we've noted a few times, there's an underlying belief in American tech policy that if we just keep throwing money at entrenched broadband monopolies we can lift US broadband out of the depths of mediocrity. But as we've noted more than a few times, heavily subsidizing a bunch of regional monopolies, while not doing anything about the conditions that created and insulate those monopolies, doesn't result in much changing. It's especially ineffective when you don't really punish ISPs for decades of taking taxpayer money in exchange for network upgrades that almost always, like clockwork, wind up unfinished.

The latest case in point: in 2015, regional monopolies CenturyLink and Frontier Communications took nearly $800 million in taxpayer funds to expand broadband to underserved areas they deemed too expensive to wire themselves. And guess what happened:

"The deadline to hit 100 percent of the required deployments passed on December 31, 2020. Both CenturyLink and Frontier informed the FCC that they missed the deadline to finish deployment in numerous states."

CenturyLink rather coyly acknowledged that it failed to meet deployment milestones in more than 25 states. Frontier failed to meet its deployment targets in around 17 states. Under the law, ISPs have a year from the point they finally inform the FCC that haven't done what they promised to... actually do what they promised.

And while that same law says the the government can take back taxpayer funding "equal to 1.89 times the average amount of support per location received in the support area," plus another ten percent of the carrier's total funding in that area, that often never happens. ISP lawyers routinely tap dance over, under, and around those milestones; and penalties are particularly pathetic when there's a captured regulator like outgoing FCC boss Ajit Pai at the helm.

A shining example of this lack of accountability is Frontier Communications, which we've long held up as a stunning example of monopolization and corruption in states like West Virginia. This is a company that time, and time, and time again has failed to meet its obligations tied to taxpayer subsidies, and in some instances was even caught defrauding the government. The federal response to this? To throw yet more taxpayer and ratepayer money at the company via the recent, scandal-plagued Rural Deployment Opportunity Fund auction:

"CenturyLink and Frontier are both getting more money from the FCC in the new Rural Digital Opportunity Fund, with CenturyLink getting $262.4 million spread over 10 years and Frontier getting $370.9 million over 10 years.

"Sen. Shelley Moore Capito (R-W.Va.) recently urged the FCC to block Frontier's new funding, saying that "Frontier has a documented pattern of history demonstrating inability to meet FCC deadlines for completion of Connect America Fund Phase II support in West Virginia."

Folks in DC (especially the Ajit Pai types) claim they're focus is "lifting burdensome regulations to boost network investment." In reality, they've effectively ceded all policy decisions to regional monopolies, which they're utterly incapable of holding accountable for much of anything. When the data then shows that this clearly and obviously only results in less competition, stifled investment, wasted money, and mediocrity, the impulse is almost always to pretend that this data isn't real... then double down on the same decisions that brought us there. Rinse, wash, repeat.

Now with COVID highlighting broadband's importance in an entirely new way, there's a massive new push to solve the problem by throwing more money at it. But until and unless policymakers embrace polices that specifically target the dominance of entrenched monopolies, driving more competition to market, we're not getting off this ridiculous hamster wheel.

When cops complain about marijuana legalization being the slippery slope to a crime-ridden, apocalyptic hellhole, they're really only complaining about the removal of one of their favorite excuses for searching vehicles, houses, and people without a warrant.

For years, the odor of marijuana has been a blank check for warrantless searches. But when marijuana possession is no longer a crime, it stands to reason the odor of marijuana is no more "suspicious" than the odor of gasoline or fresh bread or a litter box. These are all just things now -- non-criminal things. And yet, cops can't seem to let this go, even years after the contraband is no longer contraband.

A recent decision [PDF] by an Oregon appeals court -- a state where marijuana has been legal since 2015 -- reaffirms the legality of possessing marijuana and firmly reminds the state's law enforcement they need far more than a whiff of marijuana to engage in further hassling of citizens. (via FourthAmendment.com)

In this case, a state trooper followed his nose to an arrest for drug trafficking. It started with a traffic stop:

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.

Using nothing more than his "training and experience" and the "obvious" odor of marijuana, the trooper concluded the defendant was trafficking drugs. He extended the stop to ask more questions. The defendant ultimately admitted he was driving 17 pounds of marijuana to Denver, Colorado.

But does all of this (which really isn't that much) add up to "reasonable suspicion?" The court says it doesn't. First, the court says the driver's nervousness is a non-factor.

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.”

Nor is the driving of a rental car from one state to another, no matter what the trooper may have imagined the purpose for traveling from Oregon to Colorado was.

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.

As the court notes, interstate highways are used by everyone, not just drug traffickers. To assume efficient travel is purely the domain of traffickers is ridiculous.

So it all comes down to the trooper's powerful sense of smell and an odor which -- in the absence of anything else suspicious -- is indicative of nothing, given the state's legalization of marijuana.

With that in mind, we 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. A very small amount of marijuana may create an “obvious” odor, depending on the circumstances. 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). Nor was there evidence about the locus of the odor, such as it coming from defendant, his passenger, the luggage in the back seat, or the trunk.

Furthermore, identifying an odor gives no one -- not even a well-trained trooper -- any idea how much marijuana is being smelled.

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 may be bad news for the state's drug task forces, but maybe they should concentrate on illegal drugs that are far more dangerous and corrosive to people's health. Weed may make for easy busts, but when it's legal, it takes a whole lot more to make its odor suspicious. Finding in favor of the state would subject a wide swath of law-abiding citizens to extended traffic stops and warrantless searches.

We are unprepared to say that, as to any person driving a rental car on a public highway in Oregon that is also used by drug traffickers, any odor of marijuana gives rise to reasonable suspicion of unlawful delivery of marijuana.

It's a long stretch to move from "smells like marijuana" to "this is drug trafficking." The trooper took that leap of faith and lucked out. But only momentarily. The evidence is suppressed and the state no longer has the evidence it needs to convict this driver of drug trafficking.