S055774, Opinion — State v. Vasquez-Villagomez

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OCR transcription for search; preserved printed pages are authoritative

Argued and submitted January 14, order of circuit court reversed, and case
remanded to circuit court for further proceedings February 26, 2009

STATE OF OREGON,
Plaintiff-Appellant,
v.

GERARDO VASQUEZ-VILLAGOMEZ,
aka Gerardo Vasquezvillagomez,
aka Gerardo Vasquez-Villagome,
aka El Negro,
true name Gerard Vazquez Villagomez,
Defendant-Respondent.

(CC 060733947; SC S055774 (Control))

STATE OF OREGON,
Plaintiff-Appellant,
v.

JOSE LUIS ZAMORA-CAMACHO,
aka Jose Cuis Zamoracamacho,
Defendant-Respondent.

(CC 060733949; SC S055775)
203 P3d 193

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CJS, Arrest § 33.

# En Banc

On appeal from an order of the Multnomah County
Circuit Court under ORS 138.060(2)(a).

Michael J. McShane, Judge.

Sally L. Avera, Senior Assistant Attorney General, argued
the cause for plaintiff-appellant. With her on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General, Salem.

Bert Dupre, Portland, argued the cause for defendant-
respondent Gerardo Vasquez-Villagomez.

James F. Halley, Portland, argued the cause for defen-
dant-respondent Jose Luis Zamora-Camacho. With him on
the brief was Laurie Bender, Portland.

DE MUNIZ, C. J.

The order of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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# DE MUNIZ, C. J.

In this aggravated murder case, the trial court con-
cluded that the police did not have probable cause to arrest
defendants without a warrant and granted defendants'
motion to suppress certain evidence obtained after their
arrest. The state appeals directly to this court. ORS
138.060(2).1 For the reasons that follow, we conclude that the
police had probable cause to arrest defendants and therefore
reverse the trial court and remand for further proceedings.

We take the facts from the record and the trial
court's findings of fact. Defendants were arrested during the
investigation of two east Multnomah County murders. The
first murder victim, Rodolfo Romero-Lopez, Jr. (Romero),
was shot and killed outside an apartment on Stark Street,
near the Portland-Gresham boundary, late at night on
May 31, 2006. The apartment's occupant told police that, just
before the shooting, Romero and a female companion, Nicole
Weber, had knocked on his door and asked to use his phone.
He said that he had seen a Latino2 man standing behind

1 ORS 138.060 provides, in part:

"(1) The state may take an appeal from the circuit court to the Court of
Appeals from:

***** *

"(c) An order made prior to trial suppressing evidence[.]
***** *

"(2) Notwithstanding subsection (1) of this section, when the state chooses
to appeal from an order listed in paragraph (a) or (b) of this subsection, the
state shall take the appeal from the circuit court to the Supreme Court if the
defendant is charged with murder or aggravated murder. The orders to which
this subsection applies are:

"(a) An order made prior to trial suppressing evidence; and

"(b) An order made prior to trial dismissing or setting aside the accusatory
instrument."

2 Below, witnesses and the trial court used the terms "Hispanic" and "Latino"
interchangeably. On appeal, the parties do not make a distinction between the two
terms. For purposes of uniformity, we use the term "Latino" throughout this opin-
ion. See, e.g., Hernandez v. New York, 500 US 352, 355, 111 S Ct 1859, 114 L Ed 2d
395 (1991) ("Petitioner and respondent both use the term 'Latino' in their briefs to
this Court. The amicus brief employs instead the term 'Hispanic,' and the parties
referred to the excluded jurors by that term in the trial court. Both words appear in
the state-court opinions. No attempt has been made at a distinction by the parties
and we make no attempt to distinguish the terms in this opinion. We will refer to
the excluded venire persons as Latinos in deference to the terminology preferred by
the parties before the Court.").

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Romero who looked about 22 years old, was six to eight
inches taller than the victim, had a thin or lean build, and
weighed between 150 and 160 pounds, with slightly dark
skin and a shaved head. The apartment occupant handed
Romero a phone and closed the door. He then heard what he
thought were gunshots, went outside, and saw that Romero
had been shot and was lying by the door.

Weber told the police that she and Romero had been
sitting in his car near the apartment complex smoking mari-
juana, when two Latino men walked up and stood in front of
the car. Romero appeared to know them and became con-
cerned. When the two men walked away, Weber accompa-
nied Romero to the apartment. After the apartment's occu-
pant gave Romero the phone, the two men again approached.
They spoke to Romero in Spanish. According to Weber, the
taller of the two men then said, "I'm sorry," in English, and
shot Romero. Weber described the shooter as a Latino man in
his twenties, approximately six feet, three inches tall, of aver-
age build, and with a "relatively" shaved head. She described
the second man as Latino, in his twenties, five feet eight to
five feet nine inches tall, and skinny, with black spiked hair.

Romero's ex-girlfriend told the police that Romero
and a man called "Choco" were involved in drugs together
and that Choco had been upset with Romero. She did not
know how to contact Choco but told the police the address of
Choco's associate, "Alex." Romero's brother later called the
police and confirmed that Romero had associated with a man
known as "Choco" and identified Choco as Joel Sanchez-
Jacobo (Jacobo). Police unsuccessfully attempted to contact
"Alex," who they had determined was Alejandro Sanchez-
Hernandez (Sanchez) and lived at the address provided by
Romero's ex-girlfriend.

On July 10, 2006, Sanchez himself was shot and
killed at his apartment. Sanchez's apartment was about a
mile from where Romero had been killed. When the police
arrived at the scene of Sanchez's murder, Sanchez's brother
and Fidel Garcia-Garcia (Garcia) were at Sanchez's apart-
ment. Garcia, who had known Jacobo for six years, and who
had been visiting Sanchez, initially told the police that he
had been asleep and had not seen anything. However, the

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next day, he admitted that he had been awakened by the
sound of an argument between Sanchez and Jacobo. Jacobo
had been speaking to Sanchez in English. Garcia is not fluent
in English, but understood when Jacobo told Garcia, "If you
say anything I'll kill you." According to Garcia, two other
Latino men, whom Garcia did not know, were also in the
apartment. Neither man spoke. The taller of the two men
held a gun pointed at Sanchez. Garcia was afraid, and he did
not want to look at the faces of any of the men in the apart-
ment for fear that he would be killed as a witness. When the
argument ceased, Jacobo walked toward the door, then told
the two other men to "take care of it," and said something
about "10 minutes." About 10 to 15 minutes later, the taller
man said, "I'm sorry," in Spanish, and shot Sanchez twice in
the head. The two men then left through a sliding glass door
in the back of the apartment.

Garcia described Sanchez's killer as a male Latino,
about five feet, ten inches tall, medium build, around
165 pounds, 20 to 28 years old, short dark hair, not shaved,
and wearing a dark blue t-shirt. Garcia did not see any facial
hair. He described the other man as Latino, five feet, three
inches tall, thin, about 125 pounds, 20 to 28 years old, and
wearing a gray t-shirt. Again, Garcia did not see any facial
hair.

Sanchez's brother, who lived in the same apartment
complex, was home in bed and did not witness the murder.
However, his wife heard gunshots and woke him up. Soon
after, Garcia knocked on their door to tell him that Sanchez
had been shot. Sanchez's brother went to check on Sanchez
and then ran home. On his way back to his apartment, he
saw Jacobo in his car in the parking lot and went to talk to
him on the passenger side of the car. Jacobo told him to tell
the other two men in the apartment to come out. When
Sanchez's brother told Jacobo that the men were not in the
apartment and that Sanchez had been killed, Jacobo imme-
diately drove away.

On July 12, 2006, detectives working on the Romero
and Sanchez murder cases shared information regarding
their respective investigations and came to believe that the
two murders were related. The police noted that there were

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similarities between the two murders, including the facts
that both victims had been shot, Jacobo had been involved
with both victims, the descriptions of the two unknown men
were similar, the taller man was the shooter in both cases,
and the shooter had spoken the phrase, "I'm sorry," before
each murder.

On July 13, 2006, three days after the Sanchez mur-
der, police contacted a coworker of Jacobo's wife, Christina.
The coworker told the police that, within the last few days,
Christina had told her that Jacobo had switched cars with
Christina and had driven Christina's car to California with
two unidentified men because he was suspected of being
involved in a homicide. Christina had told the coworker that
she was trying to convince Jacobo to come back and get a law-
yer. The coworker told the police that that morning, July 13,
Christina had called her at work and explained that Jacobo
was back and that the two of them were on their way down-
town to talk to a lawyer.

At about 2:00 p.m. that same day, a Multnomah
County prosecutor received a call from a lawyer stating that
Jacobo was in the lawyer's office and was prepared to turn
himself in on the Sanchez murder. The detective supervising
the Sanchez investigation, Peterson, along with other detec-
tives involved in the murder investigations, thought that, if
Jacobo were not in custody, he would contact the two other
men involved in Sanchez's murder. The detectives thought
that Jacobo would want to share any information obtained
from the meeting with the lawyer with the other men. At the
detectives' direction, the prosecutor told the lawyer that
Jacobo did not have to turn himself in to police. Police officers
then located Jacobo's car in a parking lot near the lawyer's
office and followed Jacobo and his wife after they left the
office. The couple had a meal at a restaurant and then drove
to Salem, bypassing their residence in Woodburn. Christina
dropped Jacobo off near an apartment complex on
Hawthorne Avenue in Salem. Jacobo walked into the com-
plex, but police were unable to determine whom he contacted
there. Meanwhile, Christina registered at the nearby Red

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Lion Hotel. About 20 minutes later, Jacobo left the apart-
ment complex and walked to the hotel, where he and his wife
spent the night.

The next morning, July 14, 2006, at about 8:00 a.m.,
police officers saw Christina leave to go to work. At about
1:55 p.m., a woman picked Jacobo up at the hotel and drove
him to a residence. A short time later, Jacobo dropped the
woman off at a Salem business and drove back to the apart-
ment complex on Hawthorne. There, he met two Latino men,
later identified as defendants. The three drove to an auto
dealership in Brooks and then back to the Salem apartment
complex, where they went into an apartment on the second
floor. At least one or two other Latino males also were in the
apartment. Jacobo left after about 45 minutes.

As Jacobo and the two men drove around, the sur-
veillance officers observed the two men in Jacobo's company.
Peterson asked Officer Hernandez, who had received and
translated Garcia's descriptions of the murder suspects, to
talk to the surveillance officers to confirm that the two men
matched those descriptions. After conversing with the sur-
veillance officer, Hernandez told Peterson that the men did
match Garcia's descriptions. Based on the description match
and the other information that he knew from the investiga-
tion, Peterson believed that he had probable cause to arrest
the two men, and he directed the officers in Salem to make
the arrest. By that time, however, Jacobo had left the two
men at the apartment complex. As the police gathered in an
area near the apartment complex to prepare to arrest defen-
dants, another Latino male, Antonio Martinez (Martinez),
came out of the apartment and walked down the stairwell
and toward the police. The police became concerned that they
had been compromised and took Martinez into custody. He
had an outstanding warrant and was arrested. Martinez was
five feet, four inches tall, 130 pounds, clean shaven, and had
a shaved head. Subsequently, as the police approached the
apartment, defendants exited and were arrested.

Defendant Vasquez-Villagomez is Latino and is five
feet, nine inches tall. At the time of the arrest, he was
25 years old, weighed 160 pounds, and had "short cropped

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hair" and a goatee. Defendant Zamora-Camacho is Latino
and is five feet, five inches tall. At the time of the arrest, he
was 21 years old, weighed 140 pounds, had a shaved head,
and wore a "soul patch."3

Before trial, defendants moved to suppress evidence
obtained after their arrest, arguing that the eyewitness
descriptions of the suspects were insufficient to provide the
police with probable cause to arrest them without warrants.
The trial court granted defendants' motion. The trial court
determined that there was nothing distinctive about the
descriptions provided by the witnesses. According to the trial
court, the descriptions were general in nature, describing
typical young Latino males in their twenties. In the trial
court's view, there was nothing specific in the witness
descriptions to lead to the belief that defendants were the
men being sought and to establish probable cause to believe
that defendants had committed either murder. Moreover, the
trial court found it unlikely that both defendants could have
grown facial hair in the four days between the Sanchez mur-
der and their arrests. In addition, the trial court noted, defen-
dants were observed by the police in a city different from the
one in which the murders had occurred and, moreover, were
seen there four days after the Sanchez murder and 45 days
after the Romero murder. Finally, the trial court noted that
the association between defendants and Jacobo, as witnessed
by the police, was benign in nature. The trial court therefore
concluded that the police did not have probable cause to
arrest defendants. Accordingly, the trial court granted defen-
dants' motion and suppressed certain evidence.4 The state
appealed that order directly to this court.

As noted, ORS 138.060(2) authorizes the state to
prosecute to this court an expedited appeal of a pretrial order
suppressing evidence in a murder or aggravated murder

3 The term "soul patch" refers to a small growth of beard under a man's
lower lip. Merriam-Webster's Unabridged Collegiate Dictionary, http://unabridged.
merriam-webster.com / cgi-bin / collegiate?book = Dictionary&va = soul%20patch
(last visited Feb 9, 2009).

4 The trial court suppressed defendants' in-custody statements, booking
photos, photo montages created from booking photos, identification and personal
information obtained during the booking process, all out-of-court identifications by
certain witnesses, and property seized from defendants at the time of their arrests.

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case. On appeal, the state asserts that the trial court erred in
granting defendants' motion to suppress evidence because
the police, in the state's view, had probable cause to arrest
defendants absent any warrant, based on all the information
known to them at the time of the arrests. The state contends
that, at the time that he instructed the officers in Salem to
arrest defendants, the decision-making officer, Peterson,
knew that (1) the police had probable cause to arrest Jacobo;
(2) Jacobo had been involved with both victims and had been
present just before the second murder; (3) two unidentified
men with similar physical descriptions had committed each
murder under similar circumstances, including the utterance
of the phrase "I'm sorry"; (4) Garcia had been present in the
apartment when the second murder had occurred and had
seen both men; (5) the men seen with Jacobo in Salem on
July 14, 2006, matched Garcia's descriptions of the taller
shooter and his shorter companion; and (6) Jacobo had been
aware that he was a suspect in the second murder and pur-
portedly had left the state in the company of two men shortly
after its occurrence, and, after he returned and contacted a
lawyer, he did not go home but instead drove to Salem and
contacted defendants, who were together.

Based on the foregoing, the state argues that

"[d]efendants' joint propinquity or proximity to Jacobo on
July 14, 2006, considered together with their appearance as
a pair and near match to the physical descriptions of the
killer and companion provided by eyewitness Garcia[,] sup-
port an objectively reasonable belief that it was more likely
than not that defendants were culpable in the Sanchez
murder."

The state acknowledges that mere propinquity or proximity
to a person for whom the police have probable cause to
arrest-in this case, Jacobo-does not alone support probable
cause to arrest defendants. See Ybarra v. Illinois, 444 US 85,
91-92, 100 S Ct 338, 62 L Ed 2d 238 (1979) ("[A] person's mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to
search that person."). However, the state argues that propin-
quity is a significant factor to be considered in combination
with the fact that defendants, who matched the description
that Garcia had provided, met with Jacobo "at a time when it

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was reasonable for experienced officers to believe that
Jacobo[ ] would contact the two men [that] he had directed to
murder Sanchez." The state explains that it was reasonable
for the police to think that Jacobo would share what he had
learned from the lawyer with the others involved in the mur-
ders. Although the police were not able to determine who
Jacobo had contacted at the Salem apartment complex on
July 13, 2006, the police knew that he had met defendants at
that same complex the following day. Moreover, although the
state acknowledges that Garcia did not see facial hair on
either the shooter or his companion and, when arrested four
days later, defendants had a goatee and a soul patch, the
state argues that that discrepancy is "slight and explicable."
The state concludes that, under the totality of the circum-
stances, the temporal circumstances of the contact between
Jacobo and defendants and the fact that they were a pair
whose appearance was similar to Garcia's description, estab-
lished probable cause and that the trial court therefore erred
in suppressing evidence gained from defendants' arrests.

Defendants counter that the descriptions of the per-
petrators that Garcia had provided had been too general to
support probable cause. In addition, defendants argue that,
to the extent that Garcia's descriptions had been specific as to
the perpetrators' lack of facial hair, both defendants, when
arrested, had either a goatee or a soul patch and, as the trial
court found, it was unlikely that either could have grown the
hair in only four days. They assert that Martinez, the first
man to come out of the apartment on July 14, 2006, and be
arrested, was a better match for Garcia's description of the
shooter's shorter companion. Defendants assert that the
police merely arrested everyone that they thought might
have some connection to the homicides and used those
arrests to conduct further investigation. Finally, defendants
argue that, when the police observed them with Jacobo, there
had been no ongoing criminal activity, or even suspicious
behavior, as far as the police could ascertain. Defendants
were seen with Jacobo days after, and more than 50 miles
from, the scene of the murders. Consequently, defendants
assert that the police lacked probable cause to arrest defen-
dants and the trial court therefore properly granted their
motion to suppress evidence.

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We begin with the standard of review. On review of a
motion to suppress evidence, this court reviews for errors of
law, ORS 138.220, and is bound by the trial court's findings of
historical fact if there is evidence in the record to support
them, State v. Dahl, 323 Or 199, 205, 915 P2d 979 (1996).
Whether probable cause exists to support an arrest is a ques-
tion of law, not fact. State v. Miller, 345 Or 176, 187, 191 P3d
651 (2008). A police officer may arrest a person without a
warrant if the officer has probable cause to believe that the
person has committed a felony. ORS 133.310(1)(a). ORS
131.005(11) defines "probable cause" to arrest as a substan-
tial objective basis for believing that more likely than not an
offense has been committed and that the person to be
arrested has committed it.

Under Article I, section 9, of the Oregon Constitution,5
two components comprise probable cause: "[a]n officer must
subjectively believe that a crime has been committed and
thus that a person or thing is subject to seizure, and this
belief must be objectively reasonable in the circumstances."
State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986). The sub-
jective component of the probable cause inquiry is satisfied if
an officer believes that he or she has lawful authority to
restrain the individual's liberty. Miller, 345 Or at 185. The
state also must establish that the facts objectively are suffi-
cient to establish probable cause. Id. at 186. In determining
whether the state has established that the facts objectively
are reasonable, the court looks at the totality of the circum-
stances, including the officer's training and experience. See
State v. Martin, 327 Or 17, 22, 956 P2d 956 (1998) (applying
standard). Subsequent validation of the officer's subjective or
objective belief as to the existence of probable cause to arrest
is irrelevant to the inquiry. State v. Esplin, 314 Or 296, 304-
05, 839 P2d 211 (1992).

As noted, in determining whether the state estab-
lished facts that objectively are sufficient to support a finding

5 Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and the person or thing to
be seized."

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of probable cause to arrest defendants for the Romero and
Sanchez murders, we consider the totality of the circum-
stances.6 Here, Jacobo was associated with both victims, and
each murder was committed by a pair of men, one tall, one
short. The witness to the second murder, Garcia, who had
been in the room with the men for about 15 minutes,
described the shooter as a male Latino, around five feet,
ten inches tall, medium build, around 165 pounds, 20 to
28 years old, and with short dark hair, not shaved. Defendant
Vasquez-Villagomez is Latino and is five feet, nine inches
tall. The trial court found that, at the time of his arrest, he
was 25 years old, weighed 160 pounds, and had "short
cropped hair" and a goatee. Garcia described the other man
as Latino, five feet, three inches tall, about 125 pounds, and
20 to 28 years old. Defendant Zamora-Camacho is Latino and
is five feet, five inches tall. The trial court found that, at the
time of his arrest, defendant Zamora-Camacho was 21 years
old, weighed 140 pounds, had a shaved head, and wore a soul
patch. Except for the fact that Garcia did not see facial hair
on either of the two men in Sanchez's apartment, and both
defendants had facial hair at the time that they were
arrested, defendants fit the descriptions that Garcia pro-
vided. The trial court concluded that it was "possible [that]
Vazquez could have grown his goatee between the time the
homicide witnesses provided descriptions and the arrest. It is
less likely, given the thickness of Mr. Zamora Camacho's
beard at the time of his arrest, that he grew the beard
between July 10 and July 15." However, the presence or lack
of facial hair on defendants is not dispositive-rather, it is
only one fact considered in the totality of the circumstances.

Defendants assert that the first man arrested at the
apartment complex, Martinez, was a better match for
Garcia's description and that the police were merely collect-
ing people that they thought might have some connection to
the homicides. To support that assertion, defendants point
out that, although the warrant for Martinez's arrest was
issued in Marion County, he was taken to the Gresham Police

€ Because ORS 136.432 generally precludes courts from excluding evidence for
violation of a statute, we determine whether the police had probable cause to
believe that defendants had committed the Romero and Sanchez murders under
the standard established under Article I, section 9.

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Department at the same time as defendants, before being
transported back to Salem. However, Peterson testified that
Martinez had been arrested because he had come near the
arrest team gathering outside the apartment complex and
the police had been concerned that Martinez would expose
their presence. Peterson testified that Martinez had not been
seen with Jacobo and that Peterson had become aware of
Martinez only after his arrest. Peterson also testified that
Martinez never had been a murder suspect, but was taken to
Gresham to be questioned about his relationship to Jacobo
and defendants. The police also wanted to question Martinez
about anything that he might have heard defendants say
inside the apartment or anything that he might have seen in
defendants' possession at the time of their arrest. Peterson
testified that he made the decision to arrest defendants while
they were driving around Salem with Jacobo.

Defendants appear to be arguing that the police
should have negated every other possible suspect before they
arrested defendants. We disagree. The possibility that one of
the other men discovered in the apartment in Salem could
have ridden around in the car with Jacobo does nothing to
negate a finding of probable cause as to defendants.

Defendants next argue that, as the trial court deter-
mined, Garcia's descriptions were too general to support
probable cause because they could describe a large segment
of the population based on race, gender, age, height, and
weight. They point out that the trial court determined that
"there is nothing specific about [Garcia's] description that
would lead one to believe that [defendants] were the people
being sought." Defendants rely on State v. Gressel, 276 Or
333, 335, 554 P2d 1014 (1976), in which a burglar was
described as a "white male adult wearing a dark hip-length
jacket," a description that the court found was "so general
that it would fit the vast majority of men out on a May night
in Oregon. They will be white and have jackets of hip length
which will appear to be dark at night[.]" Id. at 335-38.

Here, we agree that, if the descriptions that Garcia
had provided were the only basis upon which the police had
arrested defendants, then their arrests-like the search in
Gressel-might not have been supported by probable cause.

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However, neither the generality of Garcia's physical descrip-
tions of the perpetrators nor some of the indisputable differ-
ences between those descriptions and the appearance of
defendants at the time of their arrests is significant here.
Instead, the significance lies in the reported similarities
between Garcia's descriptions and defendants' appearances,
coupled with the uniting effect of the series of corroborating
circumstances.

Simply stated, the descriptions that Garcia provided
(a taller shooter and his shorter companion-both identified
by race, gender, age, weight, and height) must be considered
in the context of the ongoing investigation, which we sum-
marize as follows. The police knew that two men, one tall and
one short, and both associated with Jacobo, had committed
each murder. Christina Sanchez's coworker had conveyed
to the police conversations with Christina respecting
(1) Jacobo's trip to California with two unidentified men;
(2) Christina's attempts to convince Jacobo to come back and
get a lawyer (because he was suspected of being involved in a
murder); and (3) Jacobo's return from California and Jacobo's
and Christina's immediate plan to speak to a lawyer. Jacobo's
meeting with a lawyer occurred on July 13, 2006, and the
lawyer immediately contacted the district attorney's office,
suggesting that Jacobo wished to surrender to police in con-
nection with the Sanchez murder. At that point, the police
reasonably could have believed that Jacobo wanted to share
any information obtained from the lawyer with the other men
involved in the murders. After Jacobo bypassed his home in
Woodburn on that same day and drove to Salem instead, the
police reasonably could have believed that Jacobo had driven
to Salem to meet the other two men involved. Moreover, the
police reasonably could have believed that Jacobo had con-
tacted defendants at the apartment complex on the night of
July 13, in view of the fact that he then picked up defendants
at the same apartment complex the following day.

The totality of the circumstances just described pro-
vided an objectively reasonable basis for Peterson to believe
that defendants were the two men who had committed the
Sanchez murder. We therefore conclude that defendants'
arrests did not contravene Article I, section 9, of the Oregon

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Constitution and that the trial court erred in concluding
otherwise.

Because we have determined that defendants' rights
were not violated under the Oregon Constitution, we next
consider whether their arrests were unlawful under
the United States Constitution. See State v. Kennedy, 295
Or 260, 262, 666 P2d 1316 (1983) (court considers all ques-
tions of state law before reaching federal constitutional
claims). Under the Fourth Amendment to the United States
Constitution,7 a warrantless arrest requires objective proba-
ble cause. Devenpeck v. Alford, 543 US 146, 152, 125 S Ct 588,
160 L Ed 2d 537 (2004). A warrantless arrest is reasonable if
there is probable cause to believe that a criminal offense has
been or is being committed. Dunaway v. New York, 442 US
200, 208 n 9, 99 S Ct 2248, 60 L Ed 2d 824 (1979). "[S]ufficient
probability, not certainty, is the touchstone of reasonableness
under the Fourth Amendment[.]" Hill v. California, 401 US
797, 804, 91 S Ct 1106, 28 L Ed 2d 484 (1971). Whether prob-
able cause exists depends upon the totality of the circum-
stances and the reasonable conclusion to be drawn from the
facts known to the arresting officer at the time of the arrest.
Maryland v. Pringle, 540 US 366, 371, 124 S Ct 795, 157 L Ed
2d 769 (2003). However, unlike our analysis under the
Oregon Constitution, an arresting officer's state of mind
(except for the facts that he or she knows) is irrelevant to
the existence of probable cause under the United States
Constitution. Devenpeck, 543 US at 153.

Here, in addition to knowing that he had probable
cause to arrest Jacobo, Peterson knew the following facts:
(1) two unidentified men with similar physical descriptions
had committed each murder under similar circumstances,
including the utterance of the phrase "I'm sorry"; (2) the men
seen with Jacobo in Salem on July 14, 2006, matched
Garcia's descriptions of the shooter and his shorter compan-
ion; and (3) Jacobo had been aware that he was a suspect in

7 The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched, and the persons
or things to be seized."

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the second murder and had contacted defendants shortly
after attempting to turn himself in to the authorities. The
United States Supreme Court has stated that "the probable-
cause standard is a practical, nontechnical conception that
deals with the factual and practical considerations of every-
day life on which reasonable and prudent men, not legal tech-
nicians, act." Pringle, 540 US at 370 (quotations omitted).
Under the totality of the circumstances, we conclude that it
was reasonable to believe that, where defendants matched
the descriptions that Garcia had provided, and where Jacobo
had contacted them shortly after attempting to turn himself
in, defendants were the two men who had committed the
Sanchez murder. Thus, it was reasonable for Peterson to
determine that probable cause supported defendants' war-
rantless arrests.

In sum, the trial court erred when it concluded that
the police did not have probable cause to arrest defendants
without a warrant, and it therefore should have denied
defendants' motion to suppress evidence obtained after their
arrests.

The order of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.