State v. Kelly, C120310CR

• Decision Date: 14 October 2015
• Docket Number: C120310CR,A153088.
• Citation: 274 Or.App. 363,360 P.3d 691
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Angela Dee KELLY, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 363

360 P.3d 691

STATE of Oregon, Plaintiff–Respondent,

v.Angela Dee KELLY, Defendant–Appellant.

C120310CR

A153088.

Court of Appeals of Oregon.

Argued and Submitted April 21, 2015.

Decided Oct. 14, 2015.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Opinion

HADLOCK, J.

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 P.3d 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 hotline from different reporters regarding concerns based on [defendant's] behavior that she may be—that she allegedly was using drugs again.” For reasons that do not appear on this record, James also had “concerns about the conditions of [defendant's] home.” Accordingly, James, accompanied by Washington County deputy sheriffs Betonte and Wormington, went to defendant's home. When James and the deputies reached the house, they saw that the door of the attached garage was partly open, raised about 8 to 18 inches from the ground. As James and the deputies stood outside the garage, they heard one male voice and one female voice, which James identified as defendant's, inside the garage. The deputies and James identified themselves and James said something about needing to speak to defendant because DHS had received calls. One of the deputies asked the people inside to open the garage. Defendant and the other person did not respond, but continued moving around inside the garage. After about 30 seconds, James and the deputies heard defendant say “hide that.” Deputy Betonte promptly opened the garage door because he believed “that people are either hiding evidence, destroying evidence or getting weapons potentially ready harm the police or DHS.” Betonte could then see inside the garage, but he remained outside.

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.

At some point, Wormington read defendant her Mirandarights. Defendant subsequently admitted that she had purchased the methamphetamine that morning, then sold half of it to McCord, conducting that transaction in the garage. Defendant also admitted the drug transaction to James, explaining that she and McCord had both planned to use the methamphetamine “once she sold it to him.” Defendant told Wormington that she had smoked both marijuana and methamphetamine “the day before as well as that day.” She also said that “she wanted to get the drugs out of the house prior to the kids coming home.”

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 1, section 9, of the Oregon Constitutionand 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.

After the state rested, defendant moved for a judgment of acquittal on the two counts of child endangerment on the ground that the state failed to prove all of the essential elements of the crime. Specifically, she argued that the state was required to, but did not, establish when the children would have been at the house, asserting that “the State at least has to have some evidence of when the children are around this.” In response, the state pointed to James's testimony that the children lived at defendant's house, that their bedroom was across the hall from defendant's, and that defendant had talked about the children returning home. The trial court denied the motion for judgment of acquittal, ruling that “a reasonable trier of fact could infer that the kids were imminently going to be there.” Defendant did not present any evidence, and the trial court convicted defendant of all the crimes charged.

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(1)(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.”¹Defendant unsuccessfully moved for judgments of acquittal on those charges on the ground that her children were not at home when the deputies found drugs there and the record included no evidence about when the children might have been there.

On appeal, defendant again argues that, to establish a violation of ORS 163.575(1)(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 which a factfinder could infer that the children were, in fact, at the home at a time when drugs were present. The state does not take issue with defendant's reading of ORS 163.575(1)(b). More significantly, for purposes of our analysis, the state implicitly acknowledges that it prosecuted this case solely on a theory that the children were in defendant's home while defendant was actively engaged in possessing, using, or selling drugs.²Nonetheless, the state argues, the trial court properly denied defendant's motion for judgment of acquittal because “the evidence was sufficient for a factfinder to reasonably infer defendant possessed, used or sold marijuana or methamphetamine when the children were in the...