OR: Opening garage door when defendant didn’t answer knock and said “hide that” was unreasonable

Police came to defendant’s house with state DHS and found the garage door open 8-18″. The officer called out for defendant to open the garage door, and he didn’t respond. From inside, they heard him say “hide that.” Then the officer opened the garage door. The entry was unreasonable on the totality of circumstances and without exigent circumstances, and the search should have been suppressed. State v. Kelly, 274 Ore. App. 363, 2015 Ore. App. LEXIS 1204 (Oct. 14, 2015):

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, 219 Ore. App. 387, 393-94, 182 P3d 274 (2008). See also State v. Young, 108 Ore. App. 196, 204, 816 P2d 612 (1991), rev den, 314 Ore. 392, 840 P.2d 710 (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.