No. 407 June 12, 2024 271
This is a nonprecedential memorandum opinion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.
BRANDYN JAMES CHARLES OLINGER,
Defendant-Appellant.
Douglas County Circuit Court
20CR15892; A177564
Frances Elaine Burge, Judge.
Argued and submitted on June 20, 2023.
Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Brandyn James Charles Olinger filed supplemental and
reply briefs pro se.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
272 State v. Olinger
HELLMAN, J.
Defendant appeals a judgment of conviction entered
following a conditional guilty plea.1 In two assignments of
error, he challenges the trial court’s denial of his motion to
suppress evidence that a trooper obtained after he stopped
defendant for speeding. For the following reasons, we affirm.
“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.
At the suppression hearing, the trooper testified
that he had observed defendant driving at a high rate of
speed and initiated a traffic stop at about midnight. When
defendant pulled over, the trooper “immediately noticed
that all of the windows, rear inside windows, were fogged
up with heavy condensation.” The trooper approached the
passenger side of the car and saw a female, X, in the front
passenger seat.2 Because he has three daughters—one of
whom was an adult—the trooper believed that X was 14 or
15 years old. He also noticed that X “tr[ied] to hide her face,”
that she “seemed very nervous,” and that “her hair was kind
of disheveled in appearance.” Defendant provided his name
and his date of birth, which indicated that he was 21 years
old. The trooper testified that, at that point, he had “reasonable suspicion … that something has been going on. Most
likely sexual activity somewhere close for the windows still
to be fogged up.” The trooper then asked X for her name, if
she was “okay,” and her age. X stated her name, that she
was “fine,” and that she was 15 years old.
1
Defendant pleaded guilty to using a child in a display of sexually explicit
conduct, ORS 163.760, third-degree sodomy, ORS 163.385, and luring a minor,
ORS 167.057.
2
The trooper testified that he approached the passenger side of car because
it was “furthest away from motoring traffic.”
Nonprecedential Memo Op: 333 Or App 271 (2024) 273
After providing defendant and X’s names to a dispatcher, the trooper asked X to exit the car and asked her
several questions, including where she and defendant had
been that night. X stated that she had snuck out of the
house and that she and defendant had driven around “just
talking.” The trooper then asked defendant where he and
X had been and about their relationship. After X’s mother
arrived, the trooper told defendant that he was “free to go.”
After concluding that the trooper had probable
cause to stop defendant, the court found that,
“[the trooper] explained it in detail and I think the
evidence is pretty clear that he … had concerns that
there was sexual activity occurring which would be a
crime because of [defendant’s] age and [X’s] age. And so
he inquired. He, he also inquired because he was trying to
determine if the passenger was committing a curfew violation pursuant to [ORS 419C.680]. And she was. … And I
find that [the trooper’s] suspicions were reasonable based
on all of those things. Not just one thing but all of those
things as described.”
On appeal, defendant argues that the trooper violated Article I, section 9, of the Oregon Constitution by
asking questions that “unlawfully expanded the scope and
duration of the traffic stop.”3 Specifically, he contends that
the trooper lacked reasonable suspicion of a crime when
he asked X if she was “okay,” her name and age, and then
separately asked X and defendant about their relationship
and activities. In response, the state argues that this case
is similar to State v. Wampler, 325 Or App 722,
530 P3d
133, rev den,
371 Or 477 (2023), because the facts “gave rise
to a reasonable suspicion that defendant may have engaged
in unlawful sexual activity with a minor, justifying further
investigation.” We agree with the state’s argument.
We have explained that “[o]fficers 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
3
Defendant does not challenge the trial court’s conclusion that the trooper
had probable cause to stop him.
274 State v. Olinger
another crime.” State v. Wicks, 332 Or App 67, 69, ___ P3d
___ (2024) (quoting State v. Arreola-Bottello,
365 Or 695,
712,
451 P3d 939 (2019) (emphasis added)). “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 trooper’s
subjective belief that criminal activity had occurred, we consider the objective component.
“Reasonable suspicion exists when an officer can point to
specific and articulable facts that give rise to a reasonable
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 circumstances known to the officer.”
Wicks, 332 Or App at 69-70 (internal quotation marks and
citation omitted); see also Wampler,
325 Or App at 727 (“[R]
easonable suspicion is a relatively low barrier, and the reasonable suspicion standard includes a proper regard for the
experience that police officers bring with them when they
encounter criminal suspects.” (Internal quotation marks
omitted.)).
We conclude that the trial court did not err in denying defendant’s motion because reasonable suspicion of
unlawful sexual activity justified the trooper’s questions.
Here, the trial court relied on several specific and articulable facts: the stop occurred at about midnight; the car windows were “totally fogged” and remained fogged throughout
the stop; the trooper recognized that defendant was an adult
and that X was about 15 years old; and X was shaking and
hid her face. Those facts—when considered in light of the
totality of the circumstances known to the trooper—create
an objectively reasonable inference of unlawful sexual activity. See Wampler, 325 Or App at 732 (concluding that the
circumstances—including the time of day, location, and the
defendant and the passenger’s ages—supported reasonable
suspicion of unlawful sexual activity); see also Wicks, 332
Or App at 71 (concluding that “two ‘specific and articulable
facts’ ” supported an objectively reasonable inference that
the defendant was impaired, even though “those facts could
have multiple explanations”).
Nonprecedential Memo Op:
333 Or App 271 (2024) 275
Although defendant insists that this case is distinguishable from Wampler because the defendant there
was parked in a “secluded location” while, here, defendant
was driving on a “highway with a speed limit of 55 miles
per hour,” we are not persuaded. “[F]acts do not exist in a
vacuum,” State v. Miller, 319 Or App 32, 39,
508 P3d 542,
rev den,
370 Or 197 (2022), and the “specific and articulable
facts” here gave rise to reasonable suspicion of unlawful sexual activity.4
Finally, we decline to consider defendant’s arguments under the Fourth Amendment to the United States
Constitution because he did not preserve them. ORAP
5.45(1); State v. Neill, 216 Or App 499, 504 n 3,
173 P3d 1262
(2007), rev den,
344 Or 671 (2008) (“Although defendant
cited the Fourth and Fourteenth Amendments to the United
States Constitution as relevant ‘Points and Authorities’ in
her motion to suppress the evidence, her accompanying
memorandum was grounded exclusively in Oregon law, and
she did not raise a federal constitutional argument during
the hearing below.”). The trial court did not err.
Affirmed.
4
We do not reach the arguments that defendant advanced in his opening
brief and pro se supplemental brief challenging the court’s determination that
the trooper had reasonable suspicion of a curfew violation.
