United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
MCSHANE, DISTRICT JUDGE.
matter comes before the Court on Defendant's Motion to
Suppress. ECF No. 21. An evidentiary hearing was held on this
motion on January 16, 2019. ECF No. 31.
the evening of March 19, 2018, Oregon State Police Trooper
Jamie Broome and Senior Trooper Nugent were driving a marked
OSP patrol car on Interstate 5 in Medford, Oregon. At
approximately 10:41 p.m., Trooper Broome saw a black 2007
Toyota Tacoma pickup truck with California license plates
cross the white fog line while traveling northbound. Gov. Ex.
1 (OSP dashcam video), at 00:01:55-00:01:57. The posted speed
limit for that stretch of Interstate 5 is 55
Trooper Broome's radar indicated that the vehicle was
traveling at 68 mph.
Broome activated his patrol car's overhead lights and
sirens and initiated a traffic stop at approximately 10:44
p.m. Gov. Ex. 1, at 00:02:45. The pickup truck came to a
prompt and safe stop on the side of the Interstate near mile
post 29. Id. at 00:03:03; Gov. Ex. 3, at 4. At the
time of the stop, the vehicle's driver and sole occupant
was Defendant Julio Cesar Aruiza-Andrade.
troopers approached the vehicle and contacted Mr.
Aruiza-Andrade. The troopers identified themselves and told
Mr. Aruiza-Andrade that the encounter was being recorded.
Upon making contact, it quickly became apparent to the
troopers that Mr. Aruiza-Andrade spoke very little English.
The troopers spoke little or no Spanish, which rendered
communication a difficult and laborious process throughout
the subsequent stop.
Broome attempted to explain that he had stopped Mr.
Aruiza-Andrade for crossing outside of his lane and for
speeding. Trooper Broome asked Mr. Aruiza-Andrade if he had a
driver's license, to which Mr. Aruiza-Andrade responded
“No.” Gov. Ex. 1, at 00:04:15. Trooper Broome
asked Mr. Aruiza-Andrade if he had any identification. Mr.
Aruiza-Andrade produced a Mexican consular identification
card, which gave his name as Gaspar
Jimenez-Hernandez. At the hearing, Trooper Broome testified
that he was suspicious of the identification card, but that
he was not aware of any mechanism for checking the validity
of foreign identification cards.
approaching the vehicle, Trooper Broome testified that he
could smell an odor of alcohol. Trooper Broome testified that
Mr. Aruiza-Andrade's eyes were bloodshot and watery.
Trooper Broome also saw an open twelve-pack of beer in the
back seat of the pickup truck. There were two unopened beers
left in the twelve-pack and a partially-consumed beer lying
on the floor of the backseat.
Broome attempted to ascertain if Mr. Aruiza-Andrade had been
drinking by asking “Sir, how many cervezas
[beers]?” Gov. Ex. 1, at 00:05:06. Mr. Aruiza-Andrade
did not appear to understand the question and when Trooper
Broome repeated “Cervezas?” Mr. Aruiza-Andrade
responded “Ah, si [yes].” Gov. Ex. 1, at
00:05:16. Trooper Broome attempted to translate “how
many” into Spanish. Trooper Broome, who does not speak
Spanish, incorrectly presented the question using the
interrogative “Quando?” (which translates as
“When?”) Gov. Ex. 1, at 00:05:23. Mr.
Aruiza-Andrade answered “Tres, ” (which
translates as “three”). Id. Trooper
Broome only later learned that he had incorrectly translated
his question and testified that, at the time, he understood
Mr. to have admitted to consuming three beers.
Broome retrieved his cellphone from the patrol car and
unsuccessfully attempted to use a translator app to
communicate with Mr. Aruiza-Andrade. Mr. Aruiza-Andrade also
attempted to facilitate communication by calling his wife,
who spoke some English, on his cellphone. The troopers tried
to explain the reason for the stop to Mrs. Aruiza-Andrade,
but her command of English was too limited for her to serve
as an effective translator.
five minutes after the stop, the troopers directed Mr.
Aruiza-Andrade to turn off the vehicle and place his keys on
the dashboard. Gov. Ex. 1, at 00:07:52. Trooper Broome then
asked Mr. Aruiza-Andrade to step out of the car, which Mr.
Aruiza-Andrade did. Id. at 00:08:38-00:09:06.
Mr. Aruiza-Andrade stepped out of the car, he was holding his
cellphone to his ear with one hand and had the other hand in
his front pocket. The troopers directed Mr. Aruiza-Andrade to
take his hands out of his pockets. Mr. Aruiza-Andrade did not
appear to understand, so Trooper Broome took Mr.
Aruiza-Andrade's arm and pulled it from the pocket,
repeating that Mr. Aruiza-Andrade should keep his hands out
of his pockets. Mr. Aruiza-Andrade then hung up his cellphone
and attempted to place both hands in his pockets. The
troopers grabbed Mr. Aruiza-Andrade's arms and again
repeated that he should not place his hands in his pockets.
Trooper Broome patted down Mr. Aruiza-Andrade and asked if
Mr. Aruiza-Andrade had any weapons on his person. Mr.
Aruiza-Andrade answered “No.” Gov. Ex. 1, at
a combination of verbal instructions and hand gestures, the
troopers led Mr. Aruiza-Andrade to the front of the cruiser
and directed him to sit on the vehicle's front guard.
Gov. Ex. 1, at 00:09:57. Trooper Broome once again attempted
to use a translator app to communicate, but without success.
point, Mrs. Aruiza-Andrade called Mr. Aruiza-Andrade's
cellphone and Trooper Broome told Mr. Aruiza-Andrade that he
could answer the call. Gov. Ex. 1, at 00:11:29. While on the
phone with his wife, Mr. Aruiza-Andrade exhibited some
confusion about where he was and asked Trooper Broome if he
was in Shasta. Trooper Broome responded that they were in
Medford. Id. at 00:11:42.
Broome asked Mr. Aruiza-Andrade to put his wife on
speakerphone so that he could speak with her. Gov. Ex. 1, at
00:11:56. Over the speakerphone, Trooper Broome told Mrs.
Aruiza-Andrade that he was concerned that Mr. Aruiza-Andrade
had been drinking and was not fit to drive. Id. at
00:12:07. Trooper Broome asked Mrs. Aruiza-Andrade to
translate a request for Mr. Aruiza-Andrade to perform
standard field sobriety tests (“FST”), but Mrs.
Aruiza-Andrade was unable to translate the request.
Id. at 00:12:46-00:13:03.
Broome attempted to ask Mr. Aruiza-Andrade if he would
perform the FST through a combination of verbal instructions
and pantomimed gestures. Gov. Ex. 1, at 00:13:17-00:13:34. At
the end of his demonstration, Trooper Broome asked
“Comprende or no? Do you understand?” to which
Mr. Aruiza-Andrade answered “Si.” Id. at
00:13:33-00:13:47. Trooper Broome accepted this response as
consent to perform field sobriety tests.
Broome performed the horizontal gaze nystagmus
(“HGN”) test. In the HGN test, the driver must
keep his head still and follow a moving object with his eyes
while the officer watches for involuntary eye movements.
Although Trooper Broome had some difficulty explaining,
through pantomime and English, that Mr. Aruiza-Andrade should
keep his head straight, Trooper Broome was eventually able to
complete the HGN test. Gov. Ex. 1, at 00:13:47-00:17:05. At
the hearing, Trooper Broome testified that he observed six
out of six clues during the HGN, which was indicative of
impairment. Trooper Broome testified that he did not ask Mr.
Aruiza-Andrade to perform any of the other standard FST
because of the language barrier.
fourteen minutes after the initial stop, Trooper Broome
placed Mr. Aruiza-Andrade under arrest for Driving Under the
Influence of Intoxicants (“DUII”) and Failure to
Carry/Present a Driver's License. Gov. Ex. 1, at
00:17:09. Mr. Aruiza-Andrade was handcuffed and Trooper
Broome performed a pat-down search before placing Mr.
Aruiza-Andrade in the back seat of the patrol car. During the
search, Trooper Broome found a socket wrench bit in Mr.
troopers then searched Mr. Aruiza-Andrade's pickup truck.
Gov. Ex. 1, at 00:20:06-00:26:40. During the search of the
vehicle, the troopers found an item connected by wires
running under the dashboard. The troopers were not initially
able to identify the item. When the troopers showed Mr.
Aruiza-Andrade a picture of the item, he told them it was
part of the truck's sound system. Id. at
00:31:10. In addition to the wiring, Trooper Broome noticed
that the dashboard was not flush with its fittings, which led
him to believe that the truck's dashboard had been
disassembled at some point. The troopers also found a socket
wrench set and a card depicting Jesús Malverde. Gov.
Ex. 3, at 5. In his later search warrant affidavit, Trooper
Broome affirmed that he was aware that images of Jesús
Malverde are often carried by drug traffickers as “good
luck charms” for “protection.” Id.
Broome also noted that Mr. Aruiza-Andrade did not appear to
have any luggage in the vehicle. Although he had not been
able to learn what Mr. Aruiza-Andrade's travel plans
were, Trooper Broome testified that he believed Mr.
Aruiza-Andrade had been coming from somewhere in
California. Given the late hour and Mr.
Aruiza-Andrade's apparent confusion about his location,
Trooper Broome believed that Mr. Aruiza-Andrade had traveled
some distance. Trooper Broome testified that he found the
lack of luggage to be suspicious.
searching the vehicle, Trooper Broome testified that he
suspected Mr. Aruiza-Andrade was involved in drug
trafficking. Trooper Broome radioed dispatch to request the
assistance of a K-9 officer from the nearby Central Point
Police Department. Gov. Ex. 1, at 00:26:41. Trooper Broome
then provided Miranda warnings to Mr. Aruiza-Andrade.
Id. at 00:29:48. Trooper Broome did not have a copy
of the warnings in Spanish and so provided the warnings in
waiting for the K-9 officer to arrive, the troopers discussed
how to proceed with their investigation. Trooper Broome
decided to call another officer, Trooper Gregor Smyth, to
transport Mr. Aruiza-Andrade to the station to perform a
breathalyzer test while Trooper Broome continued with his
roadside drug investigation. Gov. Ex. 1, at 00:31:45-33:00.
approximately 11:21 p.m., Central Point Police Officer Brian
Munoz arrived with his drug detection dog. Gov. Ex. 1, at
00:40:30. At the hearing, Officer Munoz testified that he and
the dog circled the truck and that the dog alerted to the
passenger side of the vehicle. See also Gov. Ex. 1,
at 00:40:48. Officer Munoz testified that he lifted the dog
into the vehicle, where the dog alerted to the air vent on
the passenger side. See also Gov. Ex. 1, at
the dog alerted to the passenger side of Mr.
Aruiza-Andrade's truck, Trooper Broome sought Mr.
Aruiza-Andrade's permission to search the vehicle. Gov.
Ex. 1, at 00:44:45. Because of the language barrier, Trooper
Broome presented Mr. Aruiza-Andrade with the Oregon State
Police Notice and Consent to Search Multi-Lingual Form. Gov.
Consent to Search form is written in English and Spanish and
informs the recipient that he has the right to refuse to
consent to a search and that such a refusal cannot be used
against him for any purpose. The form also warns that any
evidence of a crime and anything subject to civil forfeiture
may be seized. Under a heading marked “Consent (Motor
Vehicle)” the form says:
I voluntarily consent to the search of my motor vehicle and
its contents. I voluntarily consent to the seizure and
analysis of evidence of any crime and to the seizure ...