State v. Kelly
State v. Kelly
Opinion of the Court
Defendant appeals a judgment of conviction for delivery of methamphetamine, ORS 475.890; possession of methamphetamine, ORS 475.894; and two counts of endangering the welfare of a minor, ORS 163.575. Defendant first assigns error to the trial court’s denial of her motion to suppress evidence that deputy sheriffs discovered after one of the deputies conducted a warrantless search by opening defendant’s garage door without first obtaining her consent. In her second and third assignments of error, defendant challenges the trial court’s denial of her motion for judgment of acquittal on the charges of endangering the welfare of a minor, arguing that the state failed to prove that the minors were present when defendant was engaged in unlawful drug activity. We generally agree with each of defendant’s challenges to the judgment of conviction. First, we conclude that the trial court erred when it denied defendant’s motion for judgments of acquittal on the child-endangerment charges; we therefore reverse her convictions on Counts 3 and 4 of the indictment. Second, we conclude that the deputies’ warrantless opening of defendant’s garage door was not justified by probable cause; we further conclude that the deputies obtained the evidence at issue through exploitation of that unlawful search. Accordingly, we reverse and remand defendant’s convictions for delivery and possession of methamphetamine (Counts 1 and 2).
We state the facts consistent with the trial court’s explicit and implicit factual findings, which the record supports. State v. Culley, 198 Or App 366, 374, 108 P3d 1179 (2005) (citation omitted). At some point in her past, defendant used drugs, including methamphetamine. Perhaps for that reason, defendant had been assigned a caseworker, James, from the Department of Human Services (DHS), although defendant was already in recovery when James was assigned defendant’s case. James had not seen defendant for about a year before the events at issue here, which occurred in February 2012, when defendant was living in a house with her two young children.
James testified that she decided to visit defendant’s home because DHS “had received a couple of calls to our
One of the deputies asked defendant whether he, the other deputy, and James could enter the garage. James also told defendant that DHS “had a call of concern and [the caseworker] needed to speak with her about it.” Defendant “was very cooperative” and told the deputies and James that they could come into the garage. James told defendant that she “needed to see the conditions of the home” and asked if she could go inside the residence. Defendant consented to that entry, too. While James and Wormington headed toward the door that separated the garage and the home, Betonte, who was still in the garage, saw a scale with white residue on it. Betonte remained in the garage with the man (McCord) who had been there with defendant. After some discussion with McCord, Betonte went into the house and asked defendant for permission to search the garage, which defendant provided. Upon searching the garage, Betonte found two small bags of methamphetamine, one of which was in the pocket of McCord’s jacket, that he was not wearing at the time.
A subsequent search of defendant’s bedroom also revealed evidence of defendant’s drug use. Defendant’s purse was there, and James asked defendant if she could look in the purse for drugs. Defendant consented, admitting that the purse held marijuana. James then asked defendant if any more drugs or paraphernalia were in the bedroom, and defendant acknowledged that a bong was underneath her bed. The children’s bedroom was across the hall from defendant’s. No drugs were found in that room. Overall, the house was appropriately clean.
At no point during the encounter did the deputies make threats or promises in order to gain defendant’s consent to search. Nor did the deputies point their weapons at defendant or otherwise threaten her.
The state charged defendant with unlawful delivery of methamphetamine, unlawful possession of methamphetamine, and two counts of endangering the welfare of a minor. Defendant moved to suppress the evidence obtained after the deputy opened her garage door, arguing that that action constituted a warrantless search conducted in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court denied that motion, ruling that the deputies acted lawfully in opening the garage door as “a reasonable response to an exigent circumstance.”
After the trial court denied defendant’s suppression motion, the case went to trial before the court on the evidence that the state had offered in the suppression hearing.
We begin by addressing defendant’s second and third assignments of error, in which she argues that the trial court erred when it denied her motion for judgments of acquittal. In Counts 3 and 4 of the indictment, the state charged defendant with two counts of violating ORS 163.575(l)(b) by, with respect to each of her two children, “unlawfully and knowingly permit [ting the child], a person under 18 years of age, to enter or remain in a place where unlawful activity involving controlled substances was maintained or conducted.”
On appeal, defendant again argues that, to establish a violation of ORS 163.575(l)(b), the state was required to prove “a concurrence in time of the child’s presence in a place and the unlawful drug activity.” Defendant asserts that the record in this case includes no such evidence; that is, she contends that the record includes no evidence from
The question before us, then, is whether the record includes evidence that would allow a factfinder to determine, beyond a reasonable doubt, that defendant permitted her children to be in the home when unlawful drug activity was taking place. We conclude that it does not. We begin by observing that the record includes no evidence suggesting that the children were present at either time that defendant admittedly used drugs — once on the day that the deputies searched her home and once at some unspecified time on the day before that. Still, the state argues, a factfinder could infer that defendant possessed drugs in her home on an ongoing basis and that the children, therefore, must have been in the home at some point when drugs were there.
We are not persuaded. Although defendant admitted using marijuana and methamphetamine both on the day that the search occurred and on the previous day, no evidence supports a finding that she kept drugs in the house on an ongoing basis. To the contrary, defendant told James and
We need not answer those precise questions, however, because the record in this case is deficient in another significant respect — it includes no evidence from which a factfinder could infer that the children were home on the evening before defendant’s house was searched, that is, between the two times that defendant admittedly possessed marijuana and methamphetamine. Although defendant had custody of her children, who had a bedroom in her home, nothing in the record indicates why the young children were not home at the time of the search, whether they had been gone for only a short time or for a more extended period, or whether their absence might have begun the previous day or even earlier. Accordingly, the record includes no evidence from which a factfinder could infer that the children were in the house at any specific time that coincided with defendant’s unlawful possession, use, or delivery of drugs.
We turn to defendant’s first assignment of error, in which she challenges the denial of her suppression motion, citing both Article I, section 9, and the Fourth Amendment. Specifically, defendant contends that the state failed to prove either that the deputies had probable cause to believe that controlled substances were in the garage or that exigent circumstances justified a warrantless entry. Defendant also argues that the evidence was found through exploitation of that unlawful search. The state responds that the deputies had probable cause to believe that defendant was engaged in “unlawful drug activity” and that an exigency existed because defendant, who was aware that law enforcement officers wanted to talk to her, told her companion to “hide that.” Moreover, the state contends that, even if the search was unlawful, defendant voluntarily consented to the searches that followed and her consent to the subsequent searches was not obtained through exploitation of any illegality. Therefore, the state concludes, the trial court ruled correctly when it denied the motion to suppress.
We begin by addressing defendant’s argument that the deputy sheriff violated Article I, section 9, when he opened her garage door. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (courts address state constitutional issues before those under the federal constitution). In determining whether a warrantless search was constitutional, we are bound by the trial court’s findings of fact that are supported by the record. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Whether those findings establish probable cause or exigent circumstances is a question of law, and this court reviews the denial of a motion to suppress for legal error. State v. Woodall, 181 Or App 213, 217, 45 P3d 484 (2002) (citation omitted). If the trial court did not make express findings on a disputed point of fact, we presume that the court implicitly found the facts consistent with the judgment it entered. Ehly, 317 Or at 75.
“Under Article I, section 9, of the Oregon Constitution, probable cause exists only if the arresting officer subjectively believes that it is more likely than not that an offense has been committed and that belief is objectively reasonable.” State v. Williams, 178 Or App 52, 60, 35 P3d 1088 (2001) (citation omitted). In determining whether objective probable cause exists, “we consider the totality of the circumstances presented to the officer and reasonable inferences that may be drawn from those circumstances; no single factor is dispositive.” State v. Miller, 265 Or App 442, 446, 335 P3d 355 (2014) (citing State v. Kappel, 190 Or App 400, 404, 79 P3d 368 (2003)). Defendant does not contend that the officers in this case lacked subjective probable cause; rather, she argues only that the totality of the circumstances did not objectively establish that she probably had committed a crime.
We turn to that question. The state asserts that four factors contributed to the totality of the circumstances that gave the deputies probable cause to believe that defendant probably possessed drugs: (1) defendant’s history of drug use, (2) the anonymous reports that defendant was acting in a manner consistent with renewed methamphetamine use, (3) defendant having said “hide that” after the caseworker and the deputies alerted her to their presence, and (4) the furtiveness of defendant’s actions after she was alerted to the deputies’ presence. After considering each of those factors, we ultimately conclude that, based on the totality of the
Significantly, the record contains no evidence (other than the anonymous reports described below) that defendant had engaged in drug activity for at least a year before the searches at issue in this case. Although a past history of drug abuse can contribute to a finding of probable cause, we have explained that information about unlawful drug activity “is prone to staleness,” but can be “refreshed” with more recent information that indicates current illegal activity. State v. Chase, 219 Or App 387, 393-94, 182 P3d 274 (2008). See also State v. Young, 108 Or App 196, 204, 816 P2d 612 (1991), rev den, 314 Or 392 (1992) (staleness is a “shorthand description of the analysis about whether or not the evidence sought will be there after the length of time since the event described in the affidavit occurred”).
Here, evidence that defendant was in recovery for methamphetamine use was at least a year old by the time her garage was searched and, therefore, by itself provides little basis for concluding that defendant was engaged in illegal drug activity in February 2012. We therefore consider whether the other facts on which the state relies, to determine whether they support a conclusion that defendant probably had illegal drugs in her home at that time.
The state, like James, puts significant emphasis on the calls to DHS suggesting that defendant’s recent behavior indicated that she had resumed using methamphetamine. As the state acknowledges, however, the record includes no evidence that the people who called DHS identified themselves or gave any information suggesting that they had first-hand knowledge that defendant was using drugs. Indeed, the record contains no indication, and the trial court made no findings, that the reports were based on personal observations. See State v. Koroteev, 222 Or App 596, 600, 194 P3d 842 (2008) (“The reasonableness of [the officer’s] belief is diminished by the conclusory nature of the caller’s description of defendant and his conduct. Neither the unidentified caller nor the persons who pointed toward defendant indicated how — or why — they apparently had
Next, the state argues that an objective determination of probable cause is supported by the fact that defendant said “hide that” and moved furtively within the garage after James and the deputies alerted her to their presence. In conjunction with that argument, the state asserts that defendant would have “no reason to say 'hide that’ if the item was not illegal.” We disagree with the latter assertion. A person might wish to hide any number of personal effects from law enforcement officers; a person’s desire to keep personal items private does not, by itself, indicate that those items are contraband. We also reject the state’s more general argument that defendant’s command to “hide that” and her furtive movements in the garage contribute significantly to a probable cause determination in this case. Certainly, a person’s furtive gestures or attempts to conceal an item can, in conjunction with other indicia of criminal activity, support probable cause to believe that the person possesses contraband or other incriminating evidence. Our decision in State v. Cole, 87 Or App 93, 741 P2d 525, rev den, 304 Or 280 (1987), reflects that principle. In that case, two officers were patrolling a high-crime neighborhood known as “Cocaine Corridor.” They observed the defendants sitting in a parked
But furtiveness alone does not establish probable cause to believe that a person is committing a crime. State v. Jacobs, 187 Or App 330, 335, 67 P3d 408 (2003). In State v. Scarborough, 103 Or App 231, 796 P2d 394 (1990), for example, officers observed the defendant acting suspiciously outside a car. One of the officers asked if the defendant possessed identification and, as she dug through her purse, the officer shined a flashlight in the direction of her purse, and the defendant pulled it away. Id. at 233. On the basis of the defendant’s attempt to hide her purse from view, the officer proceeded to search it. We held that the defendant’s furtiveness was not sufficient to justify the officer’s search:
“[D]efendant’s attempts to prevent the officers from looking into her purse do not support a finding of probable cause. Furtive movements may add to a finding of probable cause when they are contemporaneous with the officer’s observations of other information consistent with criminal activity. Here, however, there was no other indication that a crime had occurred, and defendant’s actions may not be used to establish probable cause.”
Id. at 234-35 (citations omitted).
This case is closer to Scarborough than it is to Cole. As we explained above, the facts upon which the state relies, other than defendant’s furtiveness, contribute little to a probable-cause determination. Under these circumstances, defendant’s furtiveness — manifested both through
The remaining question is whether, as the state asserts, “suppression is unwarranted,” despite the unlawful opening of defendant’s garage door, “because the officers did not exploit any illegality” to obtain defendant’s consent to the searches that revealed the evidence at issue. The state’s argument implicates Oregon’s rights-based exclusionary rule, which has the goal of restoring a defendant “to the same position as if the government’s officers had stayed within the law by suppressing evidence obtained in violation of the defendant’s rights.” State v. Unger, 356 Or 59, 67, 333 P3d 1009 (2014) (internal quotation marks omitted). Under that rule, we presume that evidence discovered following an Article I, section 9, violation “was tainted by the violation and must be suppressed.” State v. Miller, 267 Or App 382, 398, 340 P3d 740 (2014) (citation omitted). Thus, when a defendant seeks to suppress evidence that was discovered during a consent search that followed unlawful police conduct, “the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search.” Unger, 356 Or at 75. In the end, the question is “whether the consent was ‘tainted’ because it was ‘derived from’ or was a ‘product of the unlawful conduct.” Id. at 80. “[W]here the taint is limited, the degree of attenuation necessary to purge the taint is correspondingly reduced.” Id. at 81 (citation omitted). See also State v. Kuschnick, 269 Or App 198, 210, 344 P3d 480 (2015) (summarizing the Unger factors).
In this case, the deputies sought and obtained defendant’s consent to search her garage, and then the house, promptly after they opened the garage door in violation of Article I, section 9. Moreover, the record includes no indication that the deputies advised defendant that she had a right to refuse their requests to search, and one deputy read defendant her Miranda rights only later. Accordingly, the “temporal proximity” and “intervening or mitigating circumstances” factors weigh in defendant’s favor, that is, in favor of a determination that the police misconduct tainted defendant’s subsequent consents to search. See State v. Benning, 273 Or App 183, 197, 359 P3d 357 (2015) (in the absence of an “extended temporal break,” the “temporal proximity” consideration weighed against a finding of attenuation); id. at 199 (discussing lack of mitigating circumstances, like the defendant having been told that he was free to leave).
Other factors favor the state. Once the deputies had opened the garage door, they did not engage in threatening or overbearing behavior. They did not point weapons at defendant or McCord, they made no promises or threats in order to gain consent, and they did not immediately see drugs, paraphernalia, or other items within the garage that prompted their first request for defendant’s consent to search. Thus, the deputies did not directly trade on information gained as a result of the unlawful opening of the garage door to obtain defendant’s consent.
That flagrantly intrusive conduct put defendant in a disadvantaged position; that is, the unlawful conduct was “more likely to influence improperly * * * defendant’s consent to search,” Unger, 356 Or at 81, as compared to less severe Article I, section 9, violations, such as an officer’s act of knocking on a back door instead of a front door (as in Unger, 356 Or at 91-92), or reaching through the front door of a residence, without stepping inside, to knock on an interior door with the goal of checking on the occupant’s safety (as in State v. Lorenzo, 356 Or 134, 145-46, 335 P3d 821 (2014)). In combination with the temporal proximity of the unlawful search and the deputies’ request for defendant’s consent
Convictions on Counts 1 and 2 reversed and remanded; convictions on Counts 3 and 4 reversed.
Those charges reflect the wording of ORS 163.575(l)(b), which provides that a person commits the offense of endangering the welfare of a minor if the person knowingly “[p]ermits a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted.”
Thus, this case does not require us to consider when, if ever, a defendant’s unlawful drug activity in a particular place could endanger the defendant’s children when they are in that same location, despite the defendant not being actively engaged in the illegal drug activity when the children are present.
As defendant points out, she could not properly have been convicted of having endangered her children’s welfare on a theory that — had the deputies and James not interrupted her drug activity on the day of the search — the children would, have returned home while that activity was ongoing. The state sensibly does not urge us to adopt such reasoning.
Because we conclude that the deputies lacked probable cause, we need not address whether defendant’s furtive movements and statement to “hide that” would have created an exigency had other circumstances established objective probable cause of criminal activity.
Although Betonte also testified that defendant could have been readying weapons, the record includes no evidence suggesting that defendant had a history of violence or of unlawful weapons possession, and the state does not seek to justify the search on officer-safety grounds.
Reference
- Full Case Name
- STATE OF OREGON, Plaintiff-Respondent v. ANGELA DEE KELLY
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- 5 cases
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- Published