470 June 25, 2025 No. 574
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON, Plaintiff-Respondent, v. JOSE GUADALUPE ALATORRE, Defendant-Appellant. Linn County Circuit Court 21CR55912; A182131
Brendan J. Kane, Judge. Submitted May 20, 2025. George W. Kelly filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Hellman, Judge, and O’Connor, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 341 Or App 470 (2025) 471
HELLMAN, J. Defendant appeals a judgment of conviction for unlawful possession of a marijuana item, ORS 475B.337(3) (c). In two assignments of error, defendant challenges the denial of his motion to suppress evidence. We affirm. We briefly recite the background facts here and sup- plement them in each assignment of error. Defendant was driving a U-Haul truck that police stopped for speeding. The truck contained marijuana. The state charged defen- dant and codefendant—the passenger—with several crimes, and the cases were consolidated. As relevant here, defen- dant joined codefendant’s motion to suppress evidence from the U-Haul and statements that he had made to police. The trial court denied the motion, determining that defendant and codefendant had consented to the search and that police had reasonable suspicion of criminal activity. After the trial court denied defendant’s renewed motion to suppress evi- dence, he entered a conditional no contest plea that reserved his right to appeal the denial. This appeal followed. On appeal, defendant argues that the trial court erred when it denied his motion. “We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s factual findings if there is any constitutionally sufficient evidence in the record to support them.” State v. Maciel-Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017). If the trial court “did not make express findings and there is evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently with the trial court’s ultimate conclusion.” Id. at 166. Consent to search. In his first assignment of error, defendant argues that the trial court erred when it denied his motion because the state did not establish that defen- dant or codefendant had consented to the search. According to defendant, because “[t]he key language apparently was given to the defendants in Spanish, as presented by the translation application,” “we cannot know that whatever it is they expressed to give their consent was done voluntarily.” We reject defendant’s argument. 472 State v. Alatorre
Under Article I, section 9, of the Oregon Constitution, “the state has the burden to prove by a preponderance of the evidence that someone having the authority to do so volun- tarily gave the police consent to search the defendant’s per- son or property.” State v. Jordan, 308 Or App 547, 552, 481 P3d 1017 (2021) (internal quotation marks omitted). “In reviewing the voluntariness of defendant’s consent, we are bound by the trial court’s findings of historical fact if there is evidence in the record to support them. Ultimately, the determination about whether a consent to search is voluntary is a legal issue that we review independently, based on the trial court’s findings that are supported by the evidence.” Id. (internal quotation marks and citations omitted). At the suppression hearing, the trooper who stopped the U-Haul, King, testified that he could tell when “there’s a little bit of an English language barrier” but that he “was confident that * * * they understood enough of * * * the ini- tial basic questions.” When King was called away, Trooper Nelson and Deputy Newman continued the investigation. Newman testified that he used a translator application on his cell phone to provide the Miranda warnings to defendant and codefendant and that they indicated that they under- stood. Newman further testified that, after giving that warning, he asked if he could look in the back of the U-Haul and that defendant and codefendant consented. In determining that defendant and codefendant consented to the search, the trial court found that King “was somehow able to communicate on a nominal level without speaking any Spanish” and that the two men understood King’s questions. “[THE COURT]: [King] is somehow able to procure identifi- cation, driver’s license, U-Haul rental agreement, and finds out from the defendants that they’re transporting sofas to grandfather. Pretty amazing despite the fact that he didn’t have an iTranslate or the services of a court certified inter- preter with a BA in Spanish, or any other such accouter- ments at his disposal.” The court also admitted into evidence Nelson’s body cam- era video that showed that Newman requested consent to Nonprecedential Memo Op: 341 Or App 470 (2025) 473
search the U-Haul orally, in English, and without use of the translation application. “[NEWMAN]: I can cut the lock? “[UNIDENTIFIED MALE]: Yeah. “[NEWMAN]: You’ll let me break it? “[UNIDENTIFIED MALE]: Si.” As a consequence, we conclude that the evidence in the record was legally sufficient to establish that defendant and codefendant voluntarily consented to the search. The trial court did not err. Reasonable suspicion. In his second assignment of error, defendant argues that the trial court erred in denying his motion because police unlawfully extended the traffic stop without reasonable suspicion of another crime. “Officers investigating a traffic infraction cannot engage in ‘investigative activities, including investigative inquiries’ that are unrelated to that infraction, unless those activities have an ‘independent constitutional justification,’ such as reasonable suspicion of another crime.’ ” State v. Wicks, 332 Or App 67, 69, 549 P3d 49 (2024) (quoting State v. Arreola-Bottello, 365 Or 695, 712, 451 P3d 939 (2019) (emphasis added)). “Reasonable suspicion exists when an officer can point to specific and articulable facts that give rise to a reason- able inference that the defendant committed or was about to commit a specific crime or type of crime. That inference must be objectively reasonable in light of the totality of cir- cumstances known to the officer.” Wicks, 332 Or App at 69-70 (internal quotation marks and citation omitted).1 We conclude that the trial court did not err when it determined that reasonable suspicion of unlawful posses- sion of marijuana justified the investigation. Here, the trial court relied on several specific and articulable facts that are 1 “Reasonable suspicion has a subjective and an objective component[.]” State v. Moore, 264 Or App 86, 89, 331 P3d 1027 (2014). Because we do not understand defendant to challenge the law enforcement officers’ subjective belief that crimi- nal activity was occurring, we consider only the objective component. 474 State v. Alatorre
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470 June 25, 2025 No. 574
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON, Plaintiff-Respondent, v. JOSE GUADALUPE ALATORRE, Defendant-Appellant. Linn County Circuit Court 21CR55912; A182131
Brendan J. Kane, Judge. Submitted May 20, 2025. George W. Kelly filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Hellman, Judge, and O’Connor, Judge. HELLMAN, J. Affirmed. Nonprecedential Memo Op: 341 Or App 470 (2025) 471
HELLMAN, J. Defendant appeals a judgment of conviction for unlawful possession of a marijuana item, ORS 475B.337(3) (c). In two assignments of error, defendant challenges the denial of his motion to suppress evidence. We affirm. We briefly recite the background facts here and sup- plement them in each assignment of error. Defendant was driving a U-Haul truck that police stopped for speeding. The truck contained marijuana. The state charged defen- dant and codefendant—the passenger—with several crimes, and the cases were consolidated. As relevant here, defen- dant joined codefendant’s motion to suppress evidence from the U-Haul and statements that he had made to police. The trial court denied the motion, determining that defendant and codefendant had consented to the search and that police had reasonable suspicion of criminal activity. After the trial court denied defendant’s renewed motion to suppress evi- dence, he entered a conditional no contest plea that reserved his right to appeal the denial. This appeal followed. On appeal, defendant argues that the trial court erred when it denied his motion. “We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s factual findings if there is any constitutionally sufficient evidence in the record to support them.” State v. Maciel-Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017). If the trial court “did not make express findings and there is evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently with the trial court’s ultimate conclusion.” Id. at 166. Consent to search. In his first assignment of error, defendant argues that the trial court erred when it denied his motion because the state did not establish that defen- dant or codefendant had consented to the search. According to defendant, because “[t]he key language apparently was given to the defendants in Spanish, as presented by the translation application,” “we cannot know that whatever it is they expressed to give their consent was done voluntarily.” We reject defendant’s argument. 472 State v. Alatorre
Under Article I, section 9, of the Oregon Constitution, “the state has the burden to prove by a preponderance of the evidence that someone having the authority to do so volun- tarily gave the police consent to search the defendant’s per- son or property.” State v. Jordan, 308 Or App 547, 552, 481 P3d 1017 (2021) (internal quotation marks omitted). “In reviewing the voluntariness of defendant’s consent, we are bound by the trial court’s findings of historical fact if there is evidence in the record to support them. Ultimately, the determination about whether a consent to search is voluntary is a legal issue that we review independently, based on the trial court’s findings that are supported by the evidence.” Id. (internal quotation marks and citations omitted). At the suppression hearing, the trooper who stopped the U-Haul, King, testified that he could tell when “there’s a little bit of an English language barrier” but that he “was confident that * * * they understood enough of * * * the ini- tial basic questions.” When King was called away, Trooper Nelson and Deputy Newman continued the investigation. Newman testified that he used a translator application on his cell phone to provide the Miranda warnings to defendant and codefendant and that they indicated that they under- stood. Newman further testified that, after giving that warning, he asked if he could look in the back of the U-Haul and that defendant and codefendant consented. In determining that defendant and codefendant consented to the search, the trial court found that King “was somehow able to communicate on a nominal level without speaking any Spanish” and that the two men understood King’s questions. “[THE COURT]: [King] is somehow able to procure identifi- cation, driver’s license, U-Haul rental agreement, and finds out from the defendants that they’re transporting sofas to grandfather. Pretty amazing despite the fact that he didn’t have an iTranslate or the services of a court certified inter- preter with a BA in Spanish, or any other such accouter- ments at his disposal.” The court also admitted into evidence Nelson’s body cam- era video that showed that Newman requested consent to Nonprecedential Memo Op: 341 Or App 470 (2025) 473
search the U-Haul orally, in English, and without use of the translation application. “[NEWMAN]: I can cut the lock? “[UNIDENTIFIED MALE]: Yeah. “[NEWMAN]: You’ll let me break it? “[UNIDENTIFIED MALE]: Si.” As a consequence, we conclude that the evidence in the record was legally sufficient to establish that defendant and codefendant voluntarily consented to the search. The trial court did not err. Reasonable suspicion. In his second assignment of error, defendant argues that the trial court erred in denying his motion because police unlawfully extended the traffic stop without reasonable suspicion of another crime. “Officers investigating a traffic infraction cannot engage in ‘investigative activities, including investigative inquiries’ that are unrelated to that infraction, unless those activities have an ‘independent constitutional justification,’ such as reasonable suspicion of another crime.’ ” State v. Wicks, 332 Or App 67, 69, 549 P3d 49 (2024) (quoting State v. Arreola-Bottello, 365 Or 695, 712, 451 P3d 939 (2019) (emphasis added)). “Reasonable suspicion exists when an officer can point to specific and articulable facts that give rise to a reason- able inference that the defendant committed or was about to commit a specific crime or type of crime. That inference must be objectively reasonable in light of the totality of cir- cumstances known to the officer.” Wicks, 332 Or App at 69-70 (internal quotation marks and citation omitted).1 We conclude that the trial court did not err when it determined that reasonable suspicion of unlawful posses- sion of marijuana justified the investigation. Here, the trial court relied on several specific and articulable facts that are 1 “Reasonable suspicion has a subjective and an objective component[.]” State v. Moore, 264 Or App 86, 89, 331 P3d 1027 (2014). Because we do not understand defendant to challenge the law enforcement officers’ subjective belief that crimi- nal activity was occurring, we consider only the objective component. 474 State v. Alatorre
supported by the record: Newman smelled the odor of mari- juana emanating from the U-Haul as he drove behind it on the freeway, all three law enforcement officers smelled the strong odor of marijuana as they approached the U-Haul on foot, and, based on the their training and experience, they believed that the quantity of marijuana was “significantly different than * * * lawfully permissible quantities of mari- juana for an individual.” In addition to considering the tes- timony about the marijuana odor, the court found that: (1) defendant and codefendant represented that “they’re trans- porting sofas to grandfather,” (2) it was “going to be hard to give grandpa his sofas back when nobody has a key to the U-Haul,” (3) the person “who rented the U-Haul wasn’t even in the vehicle,” and (4) the rental was one-way. The foregoing facts are supported by the record and—when considered in light of the totality of the circumstances known to the offi- cers—create an objectively reasonable inference of unlawful possession of marijuana. See id. Finally, we are unpersuaded by defendant’s argu- ment that, under State v. Moore, 311 Or App 13, 488 P3d 816 (2021), the law enforcement officers lacked reasonable suspicion because the “case comes down to one thing: smell.” In Moore, the trooper stopped the defendant’s car for speed- ing and smelled unburnt marijuana as he approached the passenger side of the car. Id. at 15. We concluded that the trooper unlawfully extended a traffic stop because the “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 mari- juana that might have been present was unlawful—is insuf- ficient to support an objectively reasonable suspicion that defendant possessed an unlawful amount of marijuana.” Id. at 22-23. This case is distinguishable from Moore because, as explained above, the trial court did not rely solely on the officers’ testimony that they smelled the strong odor of mari- juana as they approached the U-Haul on foot. It also relied on Newman’s testimony that he smelled the odor of mari- juana emanating from the U-Haul as he drove behind it on the freeway, testimony that the quantity of marijuana was unlawful, and other specific facts about the rental to Nonprecedential Memo Op: 341 Or App 470 (2025) 475
determine that the officers had reasonable suspicion. The trial court did not err. Affirmed.