State v. Kelly, 360 P.3d 691

Background

DHS caseworker (James) and two sheriff deputies went to defendant’s home after anonymous hotline calls that she might be using methamphetamine; they found the garage door slightly open and heard two voices inside.
After identifying themselves and asking occupants to open the garage, James heard defendant say “hide that”; Deputy Betonte then opened the garage door without a warrant or prior consent.
Betonte saw drug paraphernalia (a scale) from the doorway, remained with the male occupant, later obtained defendant’s consent to search the garage and house, and found methamphetamine and related evidence.
Defendant admitted purchasing meth that morning, selling half to McCord in the garage, and using drugs on that day and the prior day; she said she planned to remove drugs before her children returned home.
Defendant was charged with delivery and possession of methamphetamine (Counts 1–2) and two counts of endangering welfare of a minor under ORS 163.575(1)(b) (Counts 3–4); she moved to suppress evidence found after the garage door was opened and moved for judgments of acquittal on the child-endangerment counts.
Trial court denied suppression and acquittal motions; court convicted on all counts. On appeal the Oregon Court of Appeals reversed Counts 1–4 (delivery/possession and both child-endangerment convictions) and remanded Counts 1–2.

Issues

Issue	State's Argument	Defendant's Argument	Held
Did officers have probable cause/exigent circumstance to open garage door without a warrant under Article I, §9?	Anonymous tips + defendant’s furtive movements and “hide that” supported probable cause and exigency to prevent destruction/concealment of evidence.	No probable cause: tips lacked indicia of reliability, furtiveness alone insufficient, and no facts showed contemporaneous criminal activity.	No. Totality of circumstances did not objectively support probable cause; warrantless opening violated Article I, §9.
Was evidence discovered after the unlawful garage opening admissible because later searches were consensual and untainted?	Consent to search the garage/house was voluntary and not product of exploitation of illegality.	Consent was tainted by the immediately preceding unlawful entry; suppression required.	Consent was tainted: temporal proximity, lack of mitigating acts, and flagrancy of the unlawful opening meant state failed to prove attenuation; suppression required.
Did the state prove elements of ORS 163.575(1)(b) (child present during unlawful drug activity)?	Evidence of defendant’s drug use that day and presence of drugs/paraphernalia in the home permitted an inference that children were imminently present while unlawful activity occurred.	State failed to prove concurrence in time — no evidence children were present when drugs were present or being used/sold.	Reversed: record lacked evidence to establish beyond a reasonable doubt that children were in the home contemporaneously with unlawful drug activity.
Did deputies exploit information from unlawful opening to secure consent or otherwise act flagrantly?	Officers did not trade on any visible evidence from the opening and acted without threats; conduct not sufficiently flagrant to taint consent.	The opening was highly intrusive and investigative; it was flagrant and likely to influence consent.	Opening was flagrant and investigative; in combination with temporal proximity and lack of warnings, consent was tainted.

Key Cases Cited

State v. Unger, 356 Or 59 (2014) (framework for exclusionary rule and taint/attenuation analysis under Article I, §9)
State v. McBride, 352 Or 159 (2012) (construction of ORS 163.575(1)(b) and causation/concurrence issues)
State v. Kennedy, 295 Or 260 (1983) (Article I, §9 warrantless search principles)
State v. Davis, 295 Or 227 (1983) (warrantless searches presumptively unreasonable)
State v. Stevens, 311 Or 119 (1991) (probable cause plus exigent circumstances exception)
State v. Cole, 87 Or App 93 (1987) (furtive movements combined with other factors can support probable cause)
State v. Scarborough, 103 Or App 231 (1990) (furtive conduct alone insufficient for probable cause)