State v. Bertha, 300 P.3d 265

Consolidated appeal from two cases: 2010 convictions for unlawful entry into a motor vehicle and second‑degree theft following a trial on stipulated facts, and a 2006 probation revocation/infraction related to the defendant’s alleged new criminal conduct in 2010.
Defendant moved to suppress evidence obtained after police entered his home without a warrant, challenging consent by conduct or, alternatively, lack of exigent circumstances.
The state argued Fuller consented by moving out of the doorway without prompting and Pipgrass consented by advancing toward the officer; the trial court ruled there was consent by conduct.
The second issue challenged the validity of a probation extension order in 2010 on Sixth/Constitutional grounds, arguing improper waiver of counsel and the right to a hearing; the State argued it was a collateral attack and that defendant knowingly waived counsel.
The appellate court reversed in part, holding no valid consent by conduct; the warrantless entry was unlawful, requiring suppression, and remanded; the probation issue was rendered moot because no valid conviction in 2010 would support probation revocation.
The State did not challenge the court’s finding of no exigent circumstances, and the record did not show valid consent by the second suspect either; the confession’s admissibility was not reached due to the unlawful entry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there valid consent to enter by conduct?	Fuller’s motion aside, Fuller’s stepping aside and Pipgrass's movement signified consent.	Consent by conduct does not exist; Fuller merely acquiesced to a dangerous situation.	No valid consent by conduct; entry unlawful; suppression warranted.
Was the probation extension valid without counsel waiver?	The extension was a lawful continuation; no collateral attack on prior order.	Extension violated right to counsel and due process; improper waiver; no valid hearing with counsel.	Ab Initio invalid; reverse and remand; without 2010 conviction, no basis for 2006 sanctions.

State v. Jepson, 254 Or App 290 (2012) (mere acquiescence does not equal consent to entry)
State v. Martin, 222 Or App 138 (2008) (opening door and retreating may be tacit consent depending on circumstances)
State v. Doyle, 186 Or App 504 (2003) (silence does not establish consent to entry)
State v. Berg, 223 Or App 387 (2008) (voluntary consent not given when complying with command)
State v. Lowe, 144 Or App 313 (1996) (consent not given where obeying a command)
State v. Guzman, 164 Or App 90 (1999) (mere acquiescence cannot prove consent)