State v. Kelly

Under ORS 163.575, the evidence must prove beyond a reasonable doubt that children were present at the time alleged illegal activity occurred. Under Article I, section 9 of the Oregon Constitution, an officer may only perform a warrantless search where probable cause exists, such that the arresting officer subjectively believes that it is more likely than not that the suspect committed a crime and if that subjective belief is objectively reasonable under the totality of the circumstances

Defendant appealed the judgment convicting her of delivery of methamphetamine, ORS 475.890 (Count 1); possession of methamphetamine, ORS 475.894 (Count 2); and two counts of endangering the welfare of a minor, ORS 163.575 (Counts 3 and 4). On appeal, Defendant argued the trial court erred in two respects: (1) in denying Defendant’s motion of acquittal on the two child endangerment charges, as the State did not prove her children were in the house when the alleged drug activity occurred, and (2) in denying Defendant’s motion to suppress evidence that Defendant argued was the obtained pursuant to an illegal warrantless search in violation of both Article I, section 9, of the Oregon Constitution. In order to prove child endangerment, the State must prove beyond a reasonable doubt that Defendant’s children were in the house at the time the unlawful drug activity took place. The Court found the evidence was insufficient to support such a finding. Turning to Defendant’s illegal search argument, the Court held that an officer may only perform a warrantless search if probable cause exists. Probable cause exists when an arresting officer subjectively believes that it is more likely than not that the suspect committed a crime and if that subjective belief is objectively reasonable under the totality of the circumstances. The Court found that the officer’s subjective belief was not reasonable under the circumstances. Convictions on Counts 1 and 2 reversed and remanded; convictions on Counts 3 and 4 reversed.