Dеfendant 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,
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 cоuld 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 fоund 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 Miranda rights. 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 subsеquent 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
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 sоme 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 judgmеnts 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 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(l)(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.
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
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 the deputies that she had purchased methamphetamine on the morning that they searched her house, had sold half of it to McCord, had planned to smoke the methamphetamine with McCord (who was still at defendant’s home when the search was conducted), and had wanted to rid the house of drugs before her children came home. Nothing in the record contradicts those statements, and we hesitate to hold that a person’s admission that she used drugs on two consecutive days (and sold drugs on at least one of those days) is sufficient to establish beyond a reasonable doubt that she possessed drugs in her house at times in between. Nor are we inclined to conclude, as an abstract matter, that a person’s possession of drug paraphernalia, which could confirm the person’s use of drugs, always would support an inference beyond a reasonable doubt that the person possessed drugs in her home at times other than when she was using or about to use them.
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
Article I, section 9, guarantees that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search!.]” Warrantless entries and searches of premises are per se unreasonable unless they fall within an exception to the warrant requirement. State v. Davis,
“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,
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 evidence, the deputies’ subjective belief that defendant probably was engaged in criminal activity was not objectively reasonable.
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,
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
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 statе 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,
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 defendаnt 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,
But furtiveness alone does not establish probable cause to believe that a person is committing a crime. State v. Jacobs,
“[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 infоrmation 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 her physical movements and through her statement to “hide that” — was not sufficient to establish that she more likely than not was engaged in criminal activity when the deputy sheriffs opened her garage door. Considering the totality of the cirсumstances, the deputies’ subjective belief that defendant probably possessed controlled substances in her garage was not objectively reasonable under the totality of the circumstances. Accordingly, the deputies violated Article I, section 9, when they opened defendant’s garage door without first obtaining defendant’s consent to that search.
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,
The exploitation or attenuation analysis, like a probable-cause determination, involves consideration of the “totality of the circumstances.” Id. at 79-80. Factors important to that analysis include the temporal proximity of the unlawful police conduct and the defendant’s consent, whether any intervening or mitigating circumstances exist (like officers having advised the defendant of the right to refuse consent), whether officers “traded on” information obtained during an illegal search or seizure in subsequently gaining consent to search further, the intrusiveness or severity of the police misconduct, whether the police misconduct
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,
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.
The deciding factors in this case, however, are the intrusiveness, purpose, and flagrancy of the unlawful search that Betonte conducted when he opened defendant’s garage door. That act was highly intrusive. It revealed the interior of the garage attached to defendant’s house — a space that the deputies knew that defendant was attempting to keep private, as she declined to respond to their calls from outside. Betonte’s purpose in opening the garage door appears to have been investigative — he wished to prevent defendant from attempting to conceal or destroy evidence — and, given the statements that the deputies and Jаmes made before the garage door was opened, defendant would have been aware of that apparent purpose.
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,
Convictions on Counts 1 and 2 reversed and remanded; convictions on Counts 3 and 4 reversed.
Notes
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.