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State v. Bertha

Summarized by: 

Date Filed: 04-24-2013
Case #: A145681
Sercombe, J. for the Court; Ortega, P.J.; and Brewer, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145681.pdf

Criminal Procedure: Mere acquiescence to an officer's command does not amount to consent to search a home without a warrant.

Defendant appeals his convictions from two separate cases; the first case is from a 2010 conviction in which Defendant was found guilty of second degree theft and unlawful entry into a motor vehicle, his second case is a probation revocation pursuant to a 2006 conviction. On March 11, 2010, Defendant was suspected of stealing an electric "skilsaw," a bottle of medication, and $100 worth of groceries from a vehicle parked in a Wal-mart parking lot. When the officers arrived at Defendant's residence, a woman named Fuller answered the door, and was asked about Defendant. She was told by one of the officers to "move to the side of the door," for safety reasons, as he drew his gun. Defendant was subsequently apprehended and confessed to the crimes. At the motion to suppress hearing, Defendant moved for all the evidence and the confession to be suppressed following the warrantless search of his home, because the officers entered without consent or exigent circumstances. The trial court denied the motion, finding that Fuller's conducted manifested consent. On appeal, Defendant assigns error to the trial court's decision as a matter of law. The Court of Appeals held that the trial court erred as a matter of law because Fuller's actions were "mere acquiescence," not consent; Fuller was merely getting out of the way, and not manifestly consenting to the officer's search of the home. The Court also reversed Defendant's second case because, absent Defendant's 2010 conviction, there was no new criminal conduct to require a probation revocation. Reversed and remanded.