concurring in part and dissenting in part.
The majority perceives this as a two-issue case: (1) were there exigent circumstances justifying a *308warrantless search; and (2) was there consent to search?
On the first issue, I agree with the result the majority reaches — that the facts do not establish exigent circumstances justifying deviation from the Fourth Amendment’s warrant requirement. However, I disagree with the majority’s methodology. The majority treats the question of whether exigent circumstances were present as one of fact, and says we must affirm the trial court if its conclusion is supported by substantial evidence. As pointed out by Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968):
“What actually transpired is a question of fact for the trial court * * *. If the evidence sustains such historical factual findings they will not be disturbed by this court * *
However,
“* * * Whether these historical facts as found are sufficient to sustain a finding of * * * [exigent circumstances],”
is a question upon which this court must make its own independent determination.
The supposed second issue — consent — is not an issue in this case. The state never claimed, either in its brief filed in the trial court or in its brief filed in this court, that the search of defendant’s tepee should be sustained as a consent search.
Moreover, even if the consent “issue” were properly before us, I note that the relevant testimony, from the officer who first entered defendant’s tepee, is as follows:
“Q Okay. Did you ask permission to come into the tents ? Did you announce your, arrival, or what did you do?
“A Yes. I beat with the flat of my hand against the tent.
*309“Q Did you say anything?
“A I don’t recall. I think Mr. Hickmann said, ‘Come in,’ or words to that effect.
“Q Well, it’s very important. What did he say? Do you know what he said?
“A Just words to that effect; yes. To enter or come in or whatever.
“Q Do you recall a comment to the effect, either by you or Officer Ellis, when you hit the tent, ‘Is anybody home?’
“A I don’t recall.
“Q And you don’t recall a comment made from the inside, ‘Nobody’s here’?
“A I don’t specifically recall that.
“Q But what you do recall hearing, but you can’t remember the specifics of it, is what you in your mind thought was an invitation to come in?
“A There wasn’t any question of whether it was an invitation or not. I was going in, anyhow.
“Q * * * [D]id you identify yourself?
“A Not until we got in the tent.
“Q Not before you got in the tent?
“A Not to my knowledge.
“Q And you also don’t know whether or not you were invited in?
“A I don’t know; no.”
I would hold that as a matter of law this vague and equivocal testimony does not prove, as the state must, valid consent to search.
Since my own evaluation of the historical facts leads me to the conclusion that exigent circumstances did not justify this warrantless search, since I do not think consent is an issue, and since if consent were an issue it should be resolved against the state on this record, I would affirm the trial court.