No. 872 October 8, 2025 75
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARLOS ALBERTO MACIEL-SALCEDO,
Defendant-Appellant.
Marion County Circuit Court
20CR36863; A181886
Tracy A. Prall, Judge.
Argued and submitted July 9, 2025.
Daniel C. Silberman, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Philip Thoennes, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
JOYCE, J.
Affirmed.
76 State v. Maciel-Salcedo
JOYCE, J.
Defendant appeals from a judgment of conviction
for attempted delivery of methamphetamine (Count 1).1 In
a single assignment of error, defendant argues that the
trial court erred in denying his motion to suppress evidence
found during a warranted search of defendant’s hotel room
that was preceded by a prior unlawful “protective sweep” of
the room. We conclude that the state met its burden to show
that the warranted search was not tainted by the prior illegality and thus the trial court did not err in denying defendant’s motion to suppress. Accordingly, we affirm.
I. BACKGROUND
This case comes before us for a second time on
appeal. In the first appeal, the state challenged the trial
court’s granting of defendant’s initial motion to suppress
evidence obtained during the warranted search of the hotel
room. We reversed and remanded, and on remand defendant filed a supplemental motion to suppress, which the
trial court denied. That motion and ruling are the subject
of this appeal. In denying defendant’s supplemental motion
to suppress, the trial court relied on the evidence presented
on defendant’s initial motion to suppress and the findings
that it made based on that evidence. Thus, we begin with
a detailed discussion of the facts and procedural history
related to that initial motion to suppress.
II. FACTS AND PROCEDURAL HISTORY
We review a trial court’s denial of a motion to suppress for legal error and are bound by the court’s factual
findings if there is constitutionally sufficient evidence to
support them. State v. DeJong, 368 Or 640, 643,
497 P3d
710 (2021). If the trial court did not make express findings
as to all pertinent issues and there is evidence in the record
from which the court could have found a fact in more than
one way, we will presume that the court found the fact that
is consistent with its ultimate conclusion.
Id.
With that standard in mind, we recount the evidence presented at the hearing on defendant’s initial motion
1
Defendant was also found guilty of possession of methamphetamine
(Count 2). The trial court merged that verdict with the verdict on Count 1.
Cite as 344 Or App 75 (2025) 77
to suppress. That evidence includes facts from the affidavit
in support of the warrant to search the hotel room and the
testimony of two detectives.
Salem Police Detective Burke learned from a confidential informant (CI) that a person named Rosie was
involved in selling methamphetamine. On July 6, 2020,
Burke arranged a controlled buy with the CI to purchase
methamphetamine from Rosie at her apartment. After
the CI went to Rosie’s apartment, the location of the deal
changed to a La Quinta Inn and Suites. Rosie told the CI
that there were “three cartel members” inside room 333.
Burke followed the CI to the hotel while Detective
Bidiman stood in the hallway of the hotel on the third floor.
Shortly after Rosie arrived in the parking lot of the hotel, she
made a phone call, at which time Bidiman heard a phone ring
and then saw two men—later identified as defendant and
defendant’s brother—walk out of room 333 while one of the
men answered the ringing phone. Defendant and his brother
got into an elevator and Bidiman went down the stairs to the
lobby. Bidiman saw defendant and his brother in the parking
lot, then Bidiman went back up to the third floor to “look for
anybody else coming or going from the room.”
Officers observed defendant and his brother meet
with Rosie in the parking lot. Defendant’s brother held
his hat out to Rosie, and she placed something inside of it.
Defendant then went back into the hotel.2 Rosie told the CI
to meet her at a location near the hotel, where she sold the
CI a quarter pound of methamphetamine. Burke left briefly
to meet with the CI, and Bidiman and another officer stayed
at the hotel to continue surveillance.
Bidiman spoke to hotel staff and learned that room
333 had been rented under defendant’s name, that defendant had registered two guests, and that defendant had a
brown Dodge truck. An officer saw defendant’s brother leave
the hotel in a white car. Burke “made a plan to take [defendant’s brother] into custody when [defendant’s brother] came
back [to the hotel]” and “requested members of the Salem
2
It is unclear whether defendant’s brother also went back into the hotel.
Burke testified that he did, but Bidiman testified that it was “[his] understanding” that he did not.
78 State v. Maciel-Salcedo
Police Street Crimes Unit to set up” at the hotel for that purpose. Defendant and a third man came out of the hotel and
got into a brown Dodge truck in the parking lot. Officers
blocked the truck from leaving and arrested both men.
Burke and two other officers obtained a key for room
333 from the hotel staff and entered the room to “secure the
premises for search warrant preparation,” because they were
concerned about officer safety and possible destruction of evidence. Based on Burke’s experience, “a lot of times in a hotel
room there will be a lookout person who will watch for people
to be taken into custody in the parking lot, who will stay in
the room to either fortify the room or to start destroying evidence.” When they did the protective sweep, they knew that
the three people associated with the room had left, and Burke
“had no specific information that anybody had entered [room
333] and remained there such that they could present a danger to [officer] safety or the destruction of evidence ….”
In the room, officers observed drug paraphernalia
and what appeared to be “methamphetamine packaged in
bulk.” Burke prepared an affidavit and warrant to search
the hotel room. Burke had decided to seek a warrant to
search the room shortly after the controlled buy and before
the protective sweep.
A magistrate signed the affidavit at 11:21 p.m. and
signed the warrant to search the hotel room at 11:27 p.m.
Officers executed the warrant sometime before midnight
and seized evidence of drug dealing.3 The state charged
defendant with delivery of methamphetamine and possession of methamphetamine.
A. Defendant’s Initial Motion to Suppress
Defendant filed a motion to suppress the evidence
obtained during the warranted search of the hotel room,
arguing, among other things, that the warrantless protective sweep of the hotel room was unlawful and that, without
3
At the hearing on defendant’s supplemental motion to suppress, defense
counsel said there was “no doubt that a warrant was procured in relatively quick
fashion. I think it was just mere hours from the time of the arrest until that happened.” The record does not reflect, however, what time on July 6 that the officers
arrested defendant or conducted the protective sweep, so it is unclear how many
hours passed between those events and the execution of the warrant.
Cite as 344 Or App 75 (2025) 79
the information obtained from the unlawful sweep, police
would not have been able to establish probable cause to support a warrant to search the hotel room. The state argued
that the warrantless search was justified by exigent circumstances because police believed that there might be a “lookout” in the room who might destroy evidence and present a
risk to officer safety. See State v. Bridewell,
306 Or 231, 236,
759 P2d 1054 (1988) (“Securing a warrant before entry is
unnecessary if exigent circumstances, in addition to probable cause, exist ….”); State v. Stevens,
311 Or 119, 126,
806 P2d 92 (1991) (“An exigent circumstance is a situation
that requires police to act swiftly to prevent danger to life or
serious damage to property, or to forestall a suspect’s escape
or the destruction of evidence.”).
The trial court found that there was “an officer
observing the room. He saw two people exit, never saw anybody else enter, never saw anybody else exit.” The trial court
found that the evidence established that there were three
people involved and the “officers on the scene knew that all
three were out of the room.” The court thus concluded that
the protective sweep was unlawful because it was “not more
likely than not that there was somebody else in the room.”
The court excised from the affidavit the observations that the
officers made during the sweep and concluded that even without the excised portions, the affidavit established probable
cause. The court thus denied defendant’s motion to suppress.
Defendant filed a motion to reconsider that ruling,
and the trial court reversed its earlier ruling and granted
the motion to suppress after concluding that the affidavit
failed to establish probable cause. As noted above, the state
appealed, and we concluded that, absent the information
obtained during the unlawful entry, the affidavit nonetheless
established probable cause. We thus reversed and remanded.
State v. Maciel-Salcedo, 321 Or App 202, 204, (nonprecedential memorandum opinion), rev den,
370 Or 471 (2022).
B. Defendant’s Supplemental Motion to Suppress
On remand, defendant filed a supplemental motion
to suppress evidence—the motion that is at issue in this
appeal—in which he argued that the state could not meet its
80 State v. Maciel-Salcedo
burden to show that the warranted search was not tainted
by the prior unlawful protective sweep. See DeJong, 368 Or
at 642 (when a defendant challenges the admission of evidence obtained in a warranted search that is preceded by
an illegality and the defendant establishes a minimal factual nexus between the illegality and the challenged evidence, the burden shifts to the state to establish that the
challenged evidence was untainted by the illegality); State
v. Yaeger,
321 Or App 543, 548,
517 P3d 1029 (2022), rev den,
371 Or 477 (2023) (under DeJong, “it is not sufficient for the
state merely to show that the warrant application was sufficient without the tainted evidence”).
The state did not contest that defendant had established a minimal factual nexus between the challenged evidence and the prior illegality but argued that the evidence
would have been inevitably discovered absent the prior illegality. See State v. Craigen, 370 Or 696, 712,
524 P3d 85
(2023) (the state can purge the taint of a prior illegality by
showing “that the evidence would have been inevitably discovered”). Under the inevitable discovery doctrine, “the state
must show, by a preponderance of the evidence: (1) that certain proper and predictable investigatory procedures would
have been utilized in the instant case, and (2) that those procedures inevitably would have resulted in the discovery of
the evidence in question.” State v Johnson,
340 Or 319, 326-
27,
131 P3d 173 (2006) (internal quotation marks omitted).
The state contended that it satisfied the first prong
of the inevitable discovery doctrine—whether proper and
predictable investigatory procedures would have been utilized—because Burke had decided to write a warrant before
the protective sweep and believed that there was probable
cause to do so. The state further contended that it met its
burden on the second prong—whether the evidence would
have been discovered, i.e., whether the evidence would have
still been in the hotel room when the warrant was executed—
because the room was secured by a keycard and the “three
people associated with the room and who had access were
either in custody or had left the area and never returned.”
Defendant argued that the state could not prove
that the evidence would have remained in the room when
Cite as 344 Or App 75 (2025) 81
the warrant was executed because defendant’s brother was
unaccounted for and “after the transaction in the parking
lot, the detectives ended their surveillance of the exterior
of [room 333], so police could not know whether anyone
attempted to enter” the room. The state responded that
defendant’s assertion that police ended their surveillance of
the hotel room was not supported by the record.
At a hearing on defendant’s supplemental motion
to suppress, the state relied on the evidence that was presented at the prior suppression hearing and did not present
any additional evidence. The state argued that because “the
Court has already made the requisite findings … that it
was not more likely than not that [the] evidence would have
vanished,” it met its burden to show that the evidence would
have been inevitably discovered. Defendant countered that,
although the state “could [have called] witnesses to …
flesh out that evidentiary direction and maybe carry their
burden,” the state could not meet its burden on the existing
record, where the evidence showed that two people—Rosie
and defendant’s brother—were unaccounted for before the
warrant was executed.
The trial court noted that it “did make a finding
of no exigency … at [defendant’s] behest,” and defendant
responded that whether an exigency exists at the time of
the unlawful entry and whether the evidence would still be
there when the warrant was executed are “[t]wo separate
questions.” The trial court responded that
“While I understand what [defendant’s] argument is, … I
made a finding that there’s no exigency at that point where
they entered, I think the argument about exigency is that
there was no exigency because during the time which it would
take them to get a warrant, not at the moment that they
entered, it is they had no basis to enter because it would only
take so long to get a warrant, and during that time, there
would be no exigency. So I’m believing that … my finding
… included the time that you’re discussing, the point after
the entry until the warrant was actually obtained.
“So I believe I previously made that finding.”
The trial court indicated that it would review
the transcript and the findings that it made at the prior
82 State v. Maciel-Salcedo
suppression hearing and then make its ruling on the supplemental motion to suppress. In a letter opinion, the trial
court stated that in the prior hearing, it “not only determined there was no exigency at the time of entry but also
necessarily determined that there would be no exigency in
the time it would take to obtain a search warrant. Therefore,
the court has already determined there was no risk of the
evidence being tampered with or destroyed in the time it
would take to obtain a search warrant.” The trial court thus
denied defendant’s supplemental motion to suppress.
III. ANALYSIS
Defendant assigns error to that ruling, renewing
his argument that under the burden-shifting framework outlined in DeJong, he established the minimal factual nexus
between the unlawful protective sweep and the challenged
evidence and thus the burden shifted to the state to show
that the challenged evidence was untainted by the prior illegality. Defendant contends that the state cannot meet that
burden because the evidence presented at the initial suppression hearing was legally insufficient to establish inevitable
discovery. Defendant further argues that the trial court’s conclusion that its initial exigency determination was dispositive
with respect to inevitable discovery was legally erroneous.
We begin by clarifying the issues that are not in dispute. The state concedes that defendant met his burden to
show a minimal factual nexus between the prior illegality
and the challenged evidence, and we accept that concession.
Further, defendant concedes that the state satisfied the first
prong of the inevitable discovery doctrine—that police in this
case followed “certain proper and predictable investigatory
procedures.” State v. Miller, 300 Or 203, 225,
709 P2d 225
(1985), cert den,
475 US 1141 (1986). We accept that concession.
Thus, the question on appeal is whether the state
carried its burden to show, by a preponderance of the evidence, that police would have inevitably discovered the evidence. In other words, we must determine whether the state
met its burden to show that the evidence would not have
been destroyed or removed in the time it took for police to
obtain and execute the warrant.
Cite as 344 Or App 75 (2025) 83
Under our standard of review, where we are bound
by the trial court’s factual findings “and all inferences consistent with those findings” if there is sufficient evidence in
the record to support them, we conclude that the evidence
supported the trial court’s finding that “there was no risk
of the evidence being tampered with or destroyed in the
time it would take to obtain a search warrant.” See State v.
Lovaina-Burmudez, 257 Or App 1, 3,
303 P3d 988, rev den,
354 Or 148 (2013) (setting forth standard of review).
That evidence included Rosie’s statement that there
were “three cartel members” in the room; information that
the room was rented to defendant and he had registered
two additional guests; that shortly after the controlled buy,
defendant’s brother left the hotel and defendant and a third
man were taken into custody; and Burke’s testimony that he
made a plan to take defendant’s brother into custody when
defendant’s brother came back to the hotel and officers had
“set up” at the hotel for that purpose.
That evidence supported an inference that there
were only three people who had access to the room, that
officers remained at the scene until the warrant was executed, and that defendant’s brother—the only person known
to police who was not in custody and who had access to the
room—would have been taken into custody had he returned
to the hotel. Thus, the trial court correctly concluded that
the state, by a preponderance of the evidence, proved that
the drug evidence would have remained in the hotel room
and police would have inevitably discovered it. See State v.
Smith, 327 Or 366, 380,
963 P2d 642 (1998) (concluding that
evidence would have been obtained even in the absence of
unlawful police conduct where police unlawfully padlocked
the defendant’s storage unit and later conducted a warranted search of the unit; the trial court found that no one
had attempted to gain access to the unit before the warrant
was executed and that finding was supported by evidence in
the record); State v. Sargent,
323 Or 455, 459, 462-63,
918
P2d 819 (1996) (where police unlawfully seized the defendant’s apartment, suppression of evidence found during subsequent warranted search was not required where no one
attempted to enter the apartment between the time that the
84 State v. Maciel-Salcedo
defendant had left and the time that the warrant was executed); cf. DeJong,
368 Or at 659 (rejecting the state’s argument that no one would have removed or destroyed drug evidence absent unlawful seizure of the defendant’s residence
where an unidentified man sought access to the residence
and “the record is devoid of any evidence that he would not
have removed or destroyed the challenged evidence”).
Further, we disagree with defendant’s argument
that the trial court “was legally incorrect to conclude that
its initial exigency determination in the 2020 suppression
hearing was dispositive regarding inevitable discovery.”
Defendant argues that the trial court’s initial exigency
determination focused on the risk of evidentiary destruction
at the time of the unlawful protective sweep, whereas inevitable discovery requires the state to prove that the evidence
would have remained in the room hours later when the
warrant was executed. Thus, in defendant’s view, “the trial
court was wrong to conclude that it had already decided the
inevitable discovery issue at the first suppression hearing
via its original exigency conclusion.”
In our view, the trial court correctly understood that
a finding with respect to inevitable discovery must include,
as relevant to this case, the time between the unlawful protective sweep and the execution of the warrant. The trial
court explained that it understood the argument that defendant was making and that it “made a finding that there’s no
exigency” at the time of the unlawful entry and that its finding “included … the point after the entry until the warrant was actually obtained.” Further, the trial court subsequently reviewed the evidence and findings from the initial
suppression hearing before making its ruling on whether
the state met its burden to prove inevitable discovery.
In sum, the trial court’s finding that there was no
risk of the evidence being destroyed in the time it would
take to obtain a warrant is supported by evidence in the
record, and thus the state met its burden to show that the
challenged evidence was untainted by the prior unlawful
protective sweep. Thus, the trial court did not err in denying
defendant’s supplemental motion to suppress.
Affirmed.
